United Faculty of Florida v. PERC

• Decision Date: 14 February 2005
• Docket Number: No. 1D03-4689.,1D03-4689.
• Citation: 898 So.2d 96
• Parties: UNITED FACULTY OF FLORIDA, and Florida Public Employees Council 79, American Federation of State, County and Municipal Employees, AFL-CIO, Appellants, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Florida State University Board of Trustees and University of West Florida Board of Trustees, Appellees.
• Court: Florida District Court of Appeals

898 So.2d 96

UNITED FACULTY OF FLORIDA, and Florida Public Employees Council 79, American Federation of State, County and Municipal Employees, AFL-CIO, Appellants, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Florida State University Board of Trustees and University of West Florida Board of Trustees, Appellees.

No. 1D03-4689.

District Court of Appeal of Florida, First District.

February 14, 2005.

Thomas W. Brooks, Esquire of Meyer and Brooks, P.A., Tallahassee, for Appellant United Faculty of Florida. Jerry G. Traynham, Esquire and Alma Gonzalez-Neimeiser, Esquire of Patterson & Traynham, Tallahassee, for Appellant Florida Public Employees Council 79, AFSCME.

John G. Showalter, Esquire and Stephen A. Meck, Esquire, Tallahassee, for Appellee Public Employees Relations Commission. Michael Mattimore, Esquire and Brian Koji, Esquire of Allen, Norton & Blue, P.A., Tallahassee, for Appellee Florida State University Board of Trustees and the University of West Florida Board of Trustees.

Richard P. Siwica, Esquire and Tobe Lev, Esquire of Egan, Lev & Siwica, P.A., Orlando, for amicus curiae, Florida AFL-CIO.

BENTON, J.

We have for review a final order of the Public Employees Relations Commission (PERC) dismissing — over a vigorous dissent — unfair labor practice charges, filed by Florida Public Employees Council 79, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) and the United Faculty of Florida (UFF), against the Florida State University Board of Trustees (FSUBOT), the University of West Florida Board of Trustees (UWFBOT), and the Board of Governors of the State University System (BOGSUS). We reverse PERC's final order, and remand for further proceedings.

In the order under review, the Commission majority state that "the change in employer from the [Board of Education] to the boards of trustees resulted from an amendment to Section 447.203(2), Florida Statutes." See ch. 2002-387, §§ 1006, 1065, at 4129-30, 4153, Laws of Fla. (effective January 7, 2003). In any event, on January 7, 2003, article IX, section 7 of the Florida Constitution took effect, creating BOGSUS to govern the statewide university system and providing that each "local constituent university shall be administered by a board of trustees." Art. IX, § 7(c), Fla. Const. Also on January 7, 2003, both FSUBOT and UWFBOT gave notice that payroll deductions for union dues would cease for their employees, including faculty.

In response, AFSCME and UFF, the unions whose dues were involved, filed unfair labor practice charges against FSUBOT and BOGSUS (Case Nos. CA-2003-008 and CA-2003-011) under section 447.501(1)(a) and (e), Florida Statutes (2003). Thereafter, AFSCME also filed such charges against UWFBOT and BOGSUS (Case No. CA-2003-025). Both FSU cases were consolidated before a single PERC hearing officer, and the UWF case proceeded separately before another PERC hearing officer, each hearing officer entering a recommended order. The Commission consolidated all three cases before handing down the single order¹ under review. See Fla. Pub. Employees Council 79, Am. Fed'n of State, County, & Mun. Employees, AFL-CIO v. FSU Bd. of Trs., 29 F.P.E.R. ¶ 281 (2003).

In the final order, the PERC majority rejected the proposition that FSUBOT and UWFBOT were successors to the Board of Education (or to the antecedent Board of Regents²), noting that "only a fraction of the BOE's employees, supervisors, and facilities went to FSU and UWF." The PERC majority took the position that "it would be illogical to conclude that there is continuity between the BOE and the university boards of trustees," and dismissed the unfair labor practice charges on that basis. The dissent argued that FSUBOT and UWFBOT "are successor employers, [who] have an obligation to maintain the status quo as determined by their contracts," that the unfair labor practice charges should be sustained, and that all relief the charging parties sought should be granted.

We decide that FSUBOT and UWFBOT are successors to the former Board of Education as employers of members of AFSCME and UFF at Florida State University (FSU) and University of West Florida (UWF) respectively, and that FSUBOT and UWFBOT were bound by the collective bargaining agreements they inherited from the former Board of Education, pending amendment of AFSCME's and UFF's certifications, or the outcome of new representation elections. State government cannot, consistently with article I, section 6 of the Florida Constitution ("The right of employees... to bargain collectively shall not be ... abridged."), unilaterally terminate its obligations under a collective bargaining agreement simply by reorganizing the Executive Branch, where the employees affected perform the same work, in the same jobs, under the same supervisors, by operating the same facilities, carrying on the same enterprise, providing the same service.

The parties take no exception to the hearing officers' findings of fact which, in the FSU cases, include the following:

6. Effective January 7, 2003, the public employer of the public employees employed at FSU changed from the Board of Education to the FSU Board of Trustees. In re FPEC Council 79, AFSCME, 29 FPER 75 (2003), appeal filed, Case No. 1D03-1190 (Fla. 1st DCA Mar. 21, 2003). Subsequent to January 7, 2003, neither UFF nor AFSCME has secured or obtained a new certification from the Commission for a unit of employees employed by the FSU Board of Trustees. [³]

7. After the change in employers, the FSU Board of Trustees continues to operate a public institution of higher education with the same mission as before the change.

8. After the change in employers, a majority, if not all, of the employees in the statewide certified bargaining units who were employed at FSU continue to be so employed in the same jobs, in the same locations, under the same or substantially the same immediate supervision, and under the same or substantially the same working conditions as before the change. The statewide university bargaining units represented by AFSCME and UFF were comprised of all included positions and classifications at the eleven state universities and colleges. The FSU Board of Trustees did not employ a majority of the employees included in the former statewide units after January 7, 2003.

9. At no time did the FSU Board of Trustees contemplate not employing a majority, if not all, of the employees in the certified bargaining unit who were employed at FSU prior to the change in employers.

10. Both prior to and after the change in employers, UFF and AFSCME each requested that the FSU Board of Trustees and the Board of Governors recognize and bargain with it as the exclusive bargaining agent for its employees who were included in the statewide bargaining units, but they refused to do so.

11. UFF filed a representation-certification petition seeking to be certified as the exclusive bargaining agent for the employees at FSU who were included in the statewide unit. (Case No. RC-2002-072)[.] UFF and the FSU Board of Trustees reached a consent election agreement on May 2, 2003, and an election is pending.

FSU Bd. of Trs., 29 F.P.E.R. ¶ 281, at 725. Since the hearing, the parties advise, elections have been held, AFSCME and UFF won, and are now certified.⁴

On judicial review of PERC orders, the view of the PERC majority is, we have often said, presumptively the product of special expertise to which courts should defer. Initially, therefore, the determination in the present case that the boards of trustees are not successor employers is a conclusion or

interpretation of chapter 447 [that] is entitled to great deference. See Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla.1985)

; State, Department of Administration v. Public Employees Relations Commission, 443 So.2d 258 (Fla. 1st DCA 1983); Board of Regents v. Public Employees Relations Commission, 368 So.2d 641 (Fla. 1st DCA),

cert. denied, 379 So.2d 202 (Fla.1979). "[A] reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence." PERC v. Dade County PBA, 467 So.2d at 989.

Dep't of Agric. & Consumer Servs. v. Edwards, 654 So.2d 628, 631 (Fla. 1st DCA 1995). On the other hand, as we have also and more recently said:

An agency's construction of a statute is not entitled to deference where the agency has erroneously interpreted a provision of law. See Pensacola Jr. College v. Public Employees Rels. Comm'n, 400 So.2d 59 (Fla. 1st DCA 1981)

; Southeast Volusia Hosp. Dist. v. National Union of Hosp. & Health Care Employees, 429 So.2d 1232 (Fla. 5th DCA 1983),

appeal dismissed, 452 So.2d 568 (Fla.1984).

City of Safety Harbor v. Communications Workers of Am., 715 So.2d 265, 266 (Fla. 1st DCA 1998). PERC must itself comply with statutes it administers that are intended to implement state constitutional provisions forbidding the abridgment of public employees' collective bargaining rights. See Art. I, § 6, Fla. Const.

State public employees relations law is construed with the National Labor Relations Act as a model "insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject." Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm'n, 353 So.2d 108, 116 (Fla. 1st DCA 1977). In the private sector, a new employer assuming all or part of a predecessor's operations is required to bargain with the union selected by the predecessor's employees if it "makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor." Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27, 41, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987) (interpreting N.L.R.B. v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972)). To promote ...