Gene "Hal" Johnson, Tallahassee, attorney for charging party.
Peter D. Hooper, St. Petersburg, attorney for respondent.

On December 6, 1983, the Hillsborough County Police Benevolent Association Inc. (PBA), filed an unfair labor practice charge alleging that the City of New Port Richey (City) had violated Section 447.501(l)(a) and (c), Florida Statutes (1983), by legislatively imposing a contractual duration clause for the second fiscal year under negotiation, contrary to the provision of Section 447.403(4)(e), Florida Statutes (1983), and by refusing too bargain for fiscal year 1983-84. In its answer to the charge filed on February 1, 1984, the City denied these allegations and asserted that it had no duty to enter into contract negotiations with the PBA for fiscal year 1983-84 because the parties had previously ratified a collective bargaining agreement covering that period. The City further asserted that by ratifying the agreement, the PBA waived its right to bargain over the fiscal year covered by the agreement.

Concurrent with its answer, the City also filed a motion to dismiss the charge which asserted that inasmuch as the parties had ratified a collective bargaining agreement for the period of October 1, 1983, until September 30, 1984, neither party had a right to renegotiate any of its provisions until the agreement expired. On February 13, 1984, the PBA filed a response in opposition to the motion to dismiss asserting that ratification of the impasse items legislatively resolved by the City does not constitute a waiver of its unfair labor practice charge. The City's motion to dismiss was denied by the hearing officer on February 16,1984. On February 22, 1984, after due notice to the parties, a public evidentiary hearing on the PBA's charge was conducted by a Commission hearing officer. At that time the parties were given the opportunity to appear, present evidence and cross-examine witnesses. On April 25, 1984, the hearing officer issued her recommended order, a copy of which is attached hereto and incorporated herein. In that order the hearing officer recommended that the Commission find that the City did not engage in conduct proscribed by Section 447.501(l)(a) and (c). Furthermore, the hearing officer recommended that the Commission require the PBA to pay the reasonable attorney's fees and costs of litigation which the City incurred in defending against the PBA's charge.

On May 21, 1984, the PBA submitted exceptions to the recommended order and a memorandum of law in support of its exceptions. On June 11, 1984, the City filed its response to the PBA'S exceptions and an answer brief. On motion by the parties, the Commission heard oral argument on July 12, 1984.

Based upon our examination of the entire record in light of the exceptions, we conclude that the hearing officer's findings of fact are supported by competent, substantial evidence. We further conclude that the proceedings upon which these findings are based comply with the essential requirements of law. Therefore, the Commission adopts the hearing officer's findings of fact. Although we reach the same conclusion as the hearing officer with respect to disposition of the charge in this case, our decision that the City has not committed an unfair labor practice is, as will be explained below, premised on grounds somewhat different from those relied upon by the hearing officer.

The facts of this case are few and undisputed by the parties. We shall briefly summarize those facts. On June 25, 1982, the Commission certified the PBA as the exclusive bargaining agent for the City's law enforcement officers. Shortly thereafter, on September 23, the City and the PBA began collective bargaining negotiations. One of the items under discussion ss as whether any agreement decided upon should be effective for only the 1982-83 fiscal year or for a two-year period ending September 30, 1984. The City favored a two-year contract, while the PBA's position as to duration hinged upon retroactivity of contract benefits and provisions for a pay increase in the contract's second year.

The PBA declared impasse at the eleventh bargaining session on May 11, 1983. One of the impasse issues was the duration of the agreement. The PBA's position was that the contract should be retroactive to October 1, 1982. The City wanted a contract through the end of fiscal year 1983-84.

On August 4, 1983, the PBA requested that negotiations begin for fiscal year 1983-84. On August 31, 1983, the City informed the PBA that it would consider future negotiations after receipt of the special master's recommendations. On September 3, 1983, the special master issued his report which, among other things, recommended that the contract be retroactive to October 1, 1982, and extend through the end of fiscal year 1983-84. Both parties disagreed, in part, with this recommendation. The PBA agreed that all impasse items should be legislatively imposed retroactive to fiscal year 1982-83. It was opposed to prospective application of the agreement to fiscal year 1983-84. The City's position was the exact reverse of that held by the PBA.

On October 25, 1983, at a public hearing held pursuant to Section 447.403(4)(d) and (c), Florida Statutes (1983), the City Council legislatively resolved those impasse issues still in dispute, which included the duration of the agreement. The legislative body concurred with the City's negotiating position and resolved the duration issue by making the agreement applicable only to fiscal year 1983-84.

Pursuant to Section 447.403(4)(e), Florida Statutes (1983), the parties then reduced the agreement to writing whereupon it was signed by the chief executive officer of the City and the bargaining agent's chief negotiator. On November 4, 1983, the chief negotiator for the PBA recommended that members of the bargaining unit ratify the agreement, notwithstanding the PBA's dislike for the duration article, because of the benefits to be derived from working under a contract that would be lost if no contract were in effect. Bargaining unit members ratified the contract on November 4, 1983; the City ratified on November 15.

On November 16 and 28, 1983, the PBA again requested that negotiations begin for fiscal year 1983-84. The City did not respond to these requests.

In its first exception to the hearing officer's recommended order the PBA excepts to the hearing officer's failure to find that the PBA protested as unlawful the City's refusal to apply the legislatively resolved items and tentatively agreed upon bargaining proposals to the first fiscal year under negotiation. The record contains evidence to support a finding that at the legislative body session conducted on October 25, 1983, and at a meeting between the parties' negotiators on October 28, 1983, the PBA stated that the duration clause as resolved by the legislative body was unlawful. However, as we have explained below, we do not find that action by the legislative body to be unlawful and, therefore, the PBA's proposed finding that it protested the City's action is rejected because it is immaterial to the resolution of the issues in this case. See Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla. 1979).

The PBA's second exception to the hearing officer's recommended order excepts to the hearing officer's failure to find that the securing of an agreement is important, even though the financial terms may not be retroactive, because it establishes the status quo and the starting point for future negotiations. Contrary to this assertion by the PBA, the hearing officer recognized the value to the PBA of securing an agreement, although she was not specific as to what those advantages were. Furthermore, the statement that the securing of an agreement establishes the status quo is a legal conclusion rather than a finding of fact. For the foregoing reasons, we reject this exception.

The third and fifth exceptions filed by the PBA dispute the hearing officer's legal conclusion that the City's action in failing to apply the terms of the agreement to the first fiscal year under negotiation is not a violative of Section 447.501(l)(a) and (c). Like the bearing officer, we also conclude that the City did not violate the applicable unfair labor practice provisions of Chapter 447, Part II, by failing to apply the agreement to the first fiscal year under negotiation, or by refusing to bargain for fiscal year 1983-84 after the parties ratified an agreement encompassing that fiscal year. Therefore, for the reasons discussed below, these exceptions are rejected.

The PBA's fourth exception disputes the hearing officer's recommendation that the PBA should be assessed attorney's fees on the grounds that it had no reasonable basis upon which to believe it would prevail inasmuch as the Commission found the charge to be sufficient to establish a prima facie violation and sufficient to survive a motion to dismiss. In view of our rejection of the hearing officer's recommendation concerning an award of attorney's fees, we grant this exception. However, we note that even though a charge may be found to prima facie sufficient, this does not preclude an award of attorney's fees to a prevailing respondent. Pittman and the National Union of Hospital and Health Care Employees v. Southeast Volusia Hospital District, 8 FPER  13412 (1982) aff'd, 436 So.2d 294 (Fla. 1st DCA 1983). We also note that the motion to dismiss was ruled upon by the hearing officer pursuant to Florida Administrative Code Rule 38D-13.06 and not by the Commission.

The peculiar facts of this case raise issues which we have not heretofore addressed:

1. Whether, at the beginning of the second fiscal
year which was the subject of negotiations,
the City's legislative body, by resolving a
contract duration clause in a manner which makes
an agreement applicable to only the second fiscal
year under negotiation has exceeded the authority
granted it by Section 447.403(4)(e) and thus
violated Section 447.501(a) and (e); and

2. Whether, after the parties have ratified an
agreement containing the legislatively resolved
duration clause described above, the City has
violated Section 447.501(a) and (c) by refusing
to bargain over the fiscal year encompassed by
that duration clause.

We have examined the statutes and case law of other public sector jurisdictions to determine whether they may have decided these issues and, if so, to benefit from their reasoning. This inquiry has not been fruitful. As the PBA has pointed out to us in its memorandum of law in support of its exceptions to the hearing officer's recommended order, there are several cases within the jurisdiction of the New York Public Employees Relations Board which are concerned with similar issues but, because of the difference between the New York statute and ours, they are of little precedential value.

The charge has not alleged, nor does the record demonstrate, that the City failed to bargain in good faith during the parties' first year of negotiations. On October 25, 1983, about 13 months after the parties began bargaining and almost a month into the City's 1983-84 fiscal year, the City Council, acting as a legislative body, held a public hearing pursuant to Section 447.403(4)(c) and (d) to resolve impasse issues still in dispute. One of those issues was whether any agreement ratified by the parties or, absent ratification, any disputed impasse issues imposed by the legislative body, should be applied to the first fiscal year (1982-83) under negotiation the second fiscal year (1983-84) under negotiation, or both years. The legislative body chose to resolve the duration clause by providing that any ratified agreement would only cover the 1983-84 fiscal year. In so doing, the PBA asserts that the legislative body acted beyond the scope of its authority to resolve disputed impasse issues provided by Section 447.403(4)(e).

We stated in City of Hollywood v. Hollywood Municipal Employees, Local 2432, AFSCME, 9 FPER  14277 (1983), that "the purpose of [Section 447.403(4)(e)] was to reverse the court's holding in City of Winter Park v. PERC, 383 So.2d 653 (Fla. 5th DCA 1980), which held that the legislative body could impose a duration clause without agreement by the Union." After the enactment of subsection (e) to Section 447.403(4), the parties' failure to ratify an agreement subsequent to legislative body action will result in that action's being placed into effect

as of the date of such legislative body action for
the remainder of the first fiscal year which
was the subject of negotiations; however, the
legislative body action shall not take effect
with respect to those disputed impasse issues which
establish the language of contractual provisions
which could have no effect in the absence of a ratified
agreement, including, but not limited to
preambles, recognition clauses, and duration clauses.

,447.403(4)(e), Fla. Stat. (1983). Thus, employers can no longer impose duration clauses on an employee organization without its agreement.

However, this language does not indicate that a legislative body can resolve a duration issue only by providing that the agreement cover the remainder of the first fiscal year which was the subject of negotiations. It indicates merely that, in the absence of a ratified agreement, those terms legislatively resolved will be imposed only for the remainder of the first fiscal year which was the subject of negotiations. In this case, the legislative body could have appropriately resolved the duration issue in any number of ways. For example, the duration clause could have been resolved by providing for:
(1) a two-year agreement covering all or part of 1982-83 and 1983-84, or
(2) a one-year contract covering all or part of 1982-83 or 1983-84.
In addition to resolving the term of the agreement, the legislative body could have resolved the retroactivity issue, which is a different question, in favor of full, partial, or no retroactivity. Thus, the legislative body's action resolving the duration issue for one-year ---the 1983-84 fiscal--- with retroactivity to October 1, 1983, was clearly within it prerogative.

After the legislative body resolved the duration issue, the PBA's choice was to ratify the agreement with the duration issue resolved as indicated above or not to ratify. In the event the agreement was not ratified, those legislatively resolved items would only have been effective for the 1982-83 year (the first fiscal year which was the subject of negotiations). Since that year had ended as of October 1, 1983, the City would have been required to immediately pursue negotiations for 1983-84 if requested by the PBA. However, the legislatively imposed items would have established the status quo pending such negotiations, just as if those items had actually taken effect.

Unlike the employer in City of Lake Worth v. PBA of Palm Beach County, 7 FPER 12069 (1981), who denied the employee organization the opportunity to ratify a collective bargaining agreement near the end of a year's bargaining before the parties focused on negotiations for the following year, here the City presented the PBA with an opportunity to ratify the agreement subsequent to the legislative body resolution of the disputed impasse issues. Despite the inclusion in the agreement of the disputed duration clause, the PBA ratified the agreement because it was desirous of securing a contract to establish a status quo for benefits to serve as a springboard for future contract negotiations. Having entered into a valid contract for fiscal year 1983-84, the City was under no obligation to bargain further as to the provisions covered by the contract, as the hearing officer noted. City of Winter Park v. PERC, 383 So.2d 653 (Fla. 5th DCA 1980). Thus, the City was not in violation of Section 447.501(1)(a) and (c) when it refused to bargain concerning fiscal year 1983-84 subsequent to contract ratification.

The PBA argues that the contract was "held hostage" while the PBA faced a Hobson's choice of either (1) ratifying the agreement in order to gain the benefits of the contract, thus foregoing negotiations for fiscal year 1983-84, or (2) refusing to ratify the agreement and returning to the bargaining table to negotiate a contract for fiscal year 1983-84, without securing even the items resolved by the legislative body, since Section 447.403(4)(e) restricted their application to the expired fiscal year 1982-83. In light of our decision today, we do not find the PBA's choice to be as onerous as characterized. Contrary to the PBA's perceived dilemma, had it chosen not to ratify the agreement, as it was free to do, it would nevertheless have had the benefit of those disputed impasse items resolved by the legislative body to serve as a status quo basis from which to negotiate for fiscal year 1983-84. See School Board of Hernando County v. Hernando County Classroom Teachers Association, 8 FPER  13178 (1982). Even though those terms could not be enjoyed in fiscal year 1982-83 because that year had already passed, they would have constituted the status quo pending negotiations. See City of Watertown and Jefferson Local 823, Watertown City Unit, 15 PERB 4558 (1982) (terms and conditions imposed by legislative body action become status quo to be applied following expiration of the imposition). By choosing to ratify the agreement instead of rejecting it, the PBA secured in addition the benefits provided by those proposed contractual terms upon which the PBA arid the City had agreed during negotiations. It thereby, gave up the opportunity to negotiate further for 1983-84, the duration of the ratified agreement. We do not view this as a Hobson's choice, but as the sort of choice which negotiators often face in the course of collective bargaining.

Within the facts of this case we find the City's legislative body to have acted in accordance with the provisions of Section 447.403(4)(e) in providing for a duration clause covering fiscal year 1983-84. Although there is scant record evidence concerning the legislative body session, it appears that the legislative body equated retroactivity of negotiated articles with application of the duration clause to fiscal year 1982-83. The record indicates that the legislative body was opposed to retroactive application articles of the agreement. Retroactivity is not the same as duration, but is simply another bargaining subject upon which neither party is compelled to agree. 447.203(14), Fla. Stat. (1983); Blanton v. City of Vero Beach, 10 FPER  15044 (1984), and cases cited therein.

As we noted earlier in disposing of the PBA's exceptions to the hearing officer's recommendations, we do not think an award of attorney's fees to the City is appropriate. Where we confront legal issues for the first time as we have under the peculiar facts of this case and where the charging party's position is not frivolous, unreasonable, or groundless, we have denied award of attorney's fees and costs to prevailing respondents. Pittman and the National Union of Hospital and Health Care Employees v. Southeast Volusia Hospital, 8 FPER  13412 (1982), aff'd 436 So.2d 294 (Fla. 1st DCA 1983); DaCosta v. Miami Association of Fire Fighters, Local 587, 8 FPER  13048 (1981). The PBA's legal theory, even though incorrect, was reasonably held.

Based upon the foregoing, the Commission makes the following conclusions of law:

1. The City of New Port Richey is a public employer within the meaning of Section 447.203(2).

2. The Hillsborough County Police Benevolent Association, Inc., is an employee organization within the meaning of Section 447.203(11).

3. The City Council of New Port Richey, while acting in its capacity as a legislative body, did not violate Section 447.403(4)(e) or Section 447.501(l)(a) and (c) by legislatively resolving a duration clause so that the collective bargaining agreement between the parties would be effective only for fiscal year 1983-84.

4. The City of New Port Richey did not violate Section 447.501(l)(a) and (e) by failing to respond to the PBA's request to begin negotiations for fiscal year 1983-84.

Accordingly, the unfair labor practice charge filed by the PBA in the instant case is hereby DISMISSED in its entirety.

It is so ordered.