School Bd. of Marion County v. Public Emp. Relations Commission, Y--398
| Decision Date | 13 April 1976 |
| Docket Number | No. Y--398,Y--398 |
| Citation | 330 So.2d 770 |
| Parties | 92 L.R.R.M. (BNA) 3162, 80 Lab.Cas. P 53,971 The SCHOOL BOARD OF MARION COUNTY, Florida Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent. |
| Court | Florida District Court of Appeals |
John P. McKeever, Pattillo, MacKay & McKeever, Ocala, for petitioner.
Curtis L. Mack, Tallahassee, for respondent.
The instant action involves the interpretation of certain provisions of the Public Employees Relations Act (PERA), Chapter 447, Florida Statutes. The specific issue is whether the Public Employees Relations Commission (PERC) acted properly in determining whether certain employees were 'managerial and/or confidential' and thus not public employees entitled to the right of collective bargaining.
The proceedings began when the Marion Education Association (an employee organization registered with PERC as a bargaining agent) filed a 'Recognition-Certification Petition' pursuant to Rule 8H--2.5, FAC, wherein it was alleged that The School Board of Marion County (Petitioner in this proceeding) had voluntarily recognized the association as bargaining agent for certain of the School Board's employees. The 'Recognition-Certification Petition' specifically defined the bargaining unit for which recognition was sought, that unit having been determined appropriate by both the Marion Education Association and the School Board. Within five days of the filing of the 'Recognition-Certification Petition' by the Association, the School Board filed a 'Petition for Determination of Managerial and Confidential Employees' pursuant to Rule 8H--2.10, FAC, 1 requesting a determination that some 61 positions in the Marion County School System be designated as 'managerial' and therefore exempt from operation of Chapter 447, Florida Statutes. None of the alleged 'managerial' employees were in the bargaining unit defined in the association's pending 'Recognition-Certification Petition'. PERC considered both petitioner's petition as well as the Association's petition at its March 28, 1975 meeting.
PERC's conclusions are embodied in two separate orders. In its order of April 9, 1975, it certified the bargaining unit recognized by the School Board, but included in that unit certain positions (five in number) found in the School Board's petition for determination of managerial and confidential employees and which had not been included in the unit originally agreed upon by the Marion Education Association and the School Board. The second order, which is dated April 22, 1975, designated as managerial six of the 61 positions identified by the School Board as managerial but denied managerial classification to the remaining 55 positions. Petitioner (the School Board) has filed a petition for writ of certiorari directed to the latter order but has chosen not to contest the former order.
As a threshold matter, petitioner argues that PERC did not have jurisdiction to enter its April 22, 1975 order which purports to classify employees as 'managerial' or 'non-managerial' where no question of collective bargaining by the employees so classified was properly before respondent. We initially look to Chapter 447, Florida Statutes, in order to determine what authority PERC has to designate employees as managerial or confidential. Clearly, it must, at some point, make such a determination. The provisions of PERA apply only to public employees. (F.S. 447.03, 447.201) According to F.S. 447.203(3), "public employee' means any person employed by a public employer except: . . . (d) Those persons who are designated as managerial or confidential employees pursuant to criteria contained herein Upon application of the public employer to the public employees relations commission.' (Emphasis added) Unfortunately, the legislature did not specify in Chapter 447 the precise moment in the collective bargaining process at which the 'Managerial-Confidential Employee Petition' was to be presented to PERC.
Stepping into the breach made by the legislative draftsmen, PERC promulgated Rule 8H--2.10, FAC, which applies solely to instances where the employee organization and the public employer agree as to the appropriateness of the bargaining unit and where the employee organization petitions PERC for certification. See F.S. 447.307(1). 2 Where the public employer refuses to recognize the employee organization, a different procedure is required. (F.S. 447 .307(2)) PERC has not formulated the equivalent of 8H-2.10 in situations where a petition is filed pursuant to F.S. 447.307(2), apparently feeling that F.S. 447.307(3) adequately describes the proper procedure. Essentially, PERC's position is that F.S. 447.203(3)(d) implicitly mandates that it do more than merely approve or reject a proposed bargaining unit in considering voluntary recognition petitions.
The pertinent statutory provisions fail to support PERC's argument . In unmistakable terms, F.S. 447.307(1) states, The foregoing language does not permit PERC to enlarge, reduce, or redefine a bargaining unit which has been agreed upon by an employee organization and a public employer. (See City of Titusville v. Florida Public Employee's Relations Commission, et al., Fla.App.1st 1976, 330 So.2d 733, Opinion filed March 26, 1976.)
It is helpful to contract the wording of F.S. 447.307(1) with that of F.S. 447.307(3) , which is applicable to non-voluntary certification petitions described in F.S. 447.307(2). 3 According to F.S. 447.307(3)(a)1., once PERC finds that the 'petition' is sufficient, it shall immediately define the proposed bargaining unit. Had the legislature intended PERC to have the authority to define or alter the proposed bargaining unit in voluntary recognition situations, it would have so stated. To the contrary, however, the legislature desired PERC to review 'only the appropriateness of the unit proposed by the employee organization,' in considering a voluntary recognition petition.
PERC claims that illogical and disastrous results will ensue if its authority regarding certification of bargaining units pursuant to 447.307(1) is reduced to either approval or disapproval. The most obvious response to such a parade of horribles is that it is not for respondent any more than it is for this Court, to rewrite a statutory scheme. Where the legislature has clearly expressed itself, the courts are without authority to alter the expression of legislative will. Moreover, the purported 'parade of horribles' should not necessarily come to pass. Hopefully, in any order which concludes that the proposed bargaining unit is inappropriate, PERC will notify the parties in what respect the unit is deficient. (See City of Titusville v. Florida Public Employees Relations Commission, supra) The parties may then either incorporate PERC's findings in a new proposed bargaining unit, or if no agreement is possible, may proceed under the election provisions of F.S. 447.307(2) and permit PERC to define the proposed bargaining unit under F.S. 447.307(3)(a)1.
PERC further urges that the School Board is estopped from urging objections to PERC's jurisdiction to make managerial/confidential determinations because the School Board voluntarily requested a ruling by PERC by filing a Managerial/Confidential Petition and subsequently failed to appear at the hearing regarding the petition. Generally, when a party subjects itself to the jurisdiction of an agency, it places itself in an untenable position when it subsequently objects to the jurisdiction of the agency whose aid it originally and voluntarily sought. (Ganaway v. Henderson, Fla.App.1st 1958, 103 So.2d 693) However, in the instant case, we cannot say that petitioner's Managerial/Confidential Petition was filed 'voluntarily'. PERC had held in a previous order that failure to comply with Rule 8H--2.10, FAC, in filing a Managerial/Confidential Petition constitutes a waiver of the right to subsequently raise the managerial/confidential issue. (Northwest Florida Police Benevolent Ass'n., Inc., and Panama City, Order No. 75--181 (May 5, 1975)) 4 Petitioner, therefore, had little choice but to file a Managerial/Confidential Petition in order to preserve its right to raise the issue. Petitioner should not now be penalized for taking an action which a prior order of respondent forced it to take.
Although we find that PERC had no authority to alter the unit and certify it as changed, as it did by its order of April 9, 1975, review of that order has not been sought and is therefore not affected by our decision in this case. However, the 'managerial/confidential' order dated April 22, 1975 was appealed. We hold that for the reasons herein recited that order was entered without authority and is therefore reversed. Further, Rule 8H--2.10 exceeds the statutory authority pursuant to which it was purportedly promulgated (F.S. 447.307(1)) and it therefore invalid.
Our resolution of the propriety of the April 22, 1975 order renders it unnecessary for us to resolve the remaining issues raised by the parties. 5 There are, however, two other aspects of this case which merit comment. First Rule 8H--2.10, FAC, which has been extensively discussed above and held invalid, appears to be deficient in an additional respect. We are concerned that the rule, which embodies the procedure by which certain State employees are excluded from the collective bargaining process by their designation as confidential or managerial, purports to do so without affording the affected employees minimal due process protection. The right of an employee to participate in collective bargaining is an...
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...inquiry into the appropriateness of the proposed unit. We are aware that this court, in School Board of Marion County v. Public Employees Relations Commission, 330 So.2d 770 (Fla. 1st DCA 1976), drew a distinction, so far as PERC's unit-defining authority is concerned, between so-called "vo......
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