In Galbreath v School Board of Broward County, 7 FPER & 12287 (1981), aff=d, 424 So.2d 837 (Fla. 4^th DCA 1982), aff=d, 446 So.2d 1045 (Fla. 1984), cert‑ denied, 469 U.S. 801 (1984), the Florida Supreme Court upheld the constitutionality of Section 447.401, Florida Statutes, which provides a unique procedure whereby a certified union may choose not to represent a bargaining unit employee who is not a member of the union. This is an exception to the concept of exclusive representation, allowing a union the right to determine whether it desires to represent nonmembers in grievances. The nonmember's right to proceed is protected by allowing self or outside representation in processing the grievance further, if the union's refusal to process the grievance is predicated upon nonmembership rather than because the union believes the grievance has no merit. Id. When the certified union relies upon the Section 447.401, Florida Statutes,

proviso as its reason for not processing a nonmember's grievance, it no longer has a

representational responsibility toward the grievant and its refusal to process the griev­ance is not an unfair labor practice. Bartlett v. Hillsborough County Governmental Association, Inc., 11 FPER & 16018 (1984).

In the instant case, the hearing officer concluded that Local 2315 did not have a duty of fair representation to process DePaola's grievance since all parties were agreed that DePaola was a nonmember of Local 2315 at the time of his demotion and dismissal and this was the expressed reason for its non‑representation. The Commission concurs in this conclusion.

Nonetheless, because DePaola previously had been a member of Local 2315 when the events occurred that subsequently led to his demotion and dismissal, the hearing officer concluded that it would be inappropriate to award Local 2315 attorney's fees and costs, regardless of the dismissal of this case as a matter of law. The hearing officer opined that this was because the Commission had not previously decided the specific issue of whether a union had a duty to represent an employee under the unique circumstances of this case.

Local 2315 does not dispute the facts of this case. Rather, it disputes the hearing officer's determination that, as a matter of law, it should not be awarded attorney's fees and costs. Local 2315 argues that, because the language of Section 447.401, Florida Statutes, and existing case law explicitly; indicates that Local 2315 has no obligation to represent nonmembers, the charge brought by DePaola met the Commission's standard for an award of attorney's fees for a prevailing respondent. That standard asks whether a charge was frivolous, groundless, or unreasonable when filed, or that litigation continued after it became clear that the charge was without merit. See Pittman and National Union of Health Care Employees v  Southeast Volusia Hospital District, 8 FPER & 13419 (1982), aff=d, 436 So.2d 294 (Fla. 1^st DCA 1983) (hereinafter Pittman). Local 2315 argues that the Pittman standard was misapplied by the hearing officer in that the instant charge was patently frivolous, groundless, or unreasonable when filed.

Local 2315 cites three cases in its exceptions for the proposition that DePaola should have known that he would not prevail, and therefore this case was frivolous. However, the decisions in those cases, two of which are General Counsel summary dismissals, do not deal with the precise issue in this case. In McDonald v. Polk Fducation Association, 19 FPER & 24111 (1993) and Kostoskas v Jacksonville Supervisors Association, 24 FPER & 29326 (G.C. Summary Dismissal 1998), the issue was whether a union had to represent an employee for a matter that arose prior to the employee seeking union membership. In Santos v. LIUNA, Local 678, 20 FPER & 25257 (G.C. Summary Dismissal 1994), the ex‑member's membership had lapsed because of non‑payment of dues and the union denied representation.

There is no clear Commission precedent supporting Local 2315's belief that DePaola had a frivolous case. When an issue is one of first impression, the Commission will not award fees to a prevailing respondent. City of Dunedin v. Local 2327, IAFF, 4 FPER & 4258 at 458 (1978). The Commission has also ruled that, although a logical extension of the rulings in prior Commission cases dictates the result in the instant case, unless those cases address the precise issue now before the Commission, it cannot be said that the charge filed was frivolous, unreasonable, or groundless requiring an award of fees to a prevailing party. See Jens v. Professional Firefighters/Paramedics of Palm Beach County, Local 2928, 24 FPER & 29108 at 172 (1998).

Furthermore, a holding in favor of Local 2315 in this case would place charging parties at a potential disadvantage regarding exposure to fee liability relative to respondents in cases where a fee award hinges upon whether the issue in controversy is unique. The Commission has consistently held that a fee award against a respondent is only allowable if a respondent knew or should have known its conduct was illegal. Fort Walton Beach Fire Fighters v. City of Fort Walton Reach, 11 FPER & 16240 at 660 (1985). Applying this standard, the Commission has consistently not awarded attorney's fees to a prevailing charging party when the Commission has not previously addressed an issue, although the Commission's decision is predictable given prior Commission rulings. Eg., St. John's County Board of County Commissioners v. Florida Council of Industrial and Public Employes, UBC, Local 2038, 22 FPER & 27034 (1996) (although prior Commission precedent indicated a duty for a union to provide relevant information during grievance processing, the unique factual circumstances of the case required consideration of private sector case law of the National Labor Relations Board, as no Commission precedent existed concerning the particular information to be disclosed during grievance processing, and therefore the union was not liable for fees). Our ruling here is consistent with that standard.

The Commission's Pittman decision adopted the test for deciding whether to award fees to a prevailing respondent provided by the United States Supreme Court in the case of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Pittman, 8 FPER & 13419 at 787, aff=d, 436 So.2d at 296‑97. The Court opined that, "Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing [an action]."  Christianburg, 434 U.S. at 422. The award of fees to a prevailing respondent is to protect against "burdensome litigation having no legal or factual basis" rather than to engage in "hindsight logic" that "could discourage all but the most airtight claims." Id. at 420‑22.

Here, the hearing officer decided that, while prior case law concerning a union's ability to deny a nonmember representation was clear, the facts presented by DePaola made this case unique. These facts include those as to his membership lapsing because of his promotion, the precipitous nature of his subsequent demotion and dismissal, and his status as a member during the events that resulted in his demotion and discharge. We agree that these facts distinguish this case from prior Commission decisions and arguably were the basis for the General Counsel's decision to find the charge sufficient to establish a prima facie violation, despite prior case law ruling upon a union's duty to represent a nonmember in the grievance process.