Case No. CB-96-024
Order Number: 97U-160 (Date Issued: July 9, 1997)

Kevin Kelleher, Fort Lauderdale, attorney for charging party.
Robert Sugarman and Noah Scott Warman, Coral Gables, attorneys for respondent.

Summary: ... we agree with the conclusions of Commissioner Parrish in his dissent in Boynton Beach and the hearing officer in this case that the statutory impasse procedure provided by Section 447.403, Florida Statutes, preserves to the local legislative body the ultimate decision on impasse items. For these reasons, we decide that binding interest arbitration under any guise is an unlawful subject of bargaining and recede from Boynton Beach to the extent it holds otherwise.

On October 29, 1996, the Broward County Board of County Commissioners (County) filed an unfair labor practice charge alleging that the Port Everglades Fire Fighters Association, IAFF, Local 1989 (Local 1989), violated Section 447.501(2)(a), (b), and (c), Florida Statutes, by: (1) insisting that the parties resolve an impasse reached during negotiations for a successor collective bargaining agreement by arbitration, pursuant to a provision contained in an expired agreement between Local 1989 and a predecessor employer (Port Authority); (2) insisting to impasse that this provision be included in a successor agreement; and (3) insisting to impasse upon a provision making any contract between the parties effective for three years.[1] On January 6, 1997, the hearing was canceled because the parties agreed to resolve this matter upon undisputed facts. On January 24, the parties filed stipulated facts and memoranda of law in support of their arguments.

On March 5, 1997, the hearing officer issued his recommended order concluding that Local 1989 violated Section 447.501(2)(a) and (c), Florida Statutes, by engaging in the conduct alleged in the County's charge. The hearing officer also concluded that neither party was entitled to attorney's fees and costs.

On April 9, 1997, the County timely filed two exceptions to the hearing officer's recommended order. On April 10, Local 1989 untimely filed six exceptions to the recommended order which the Commission accepted as timely in our June 4 order granting Local 1989's motion for an extension of time. Additionally, on April 7, Local 1989 filed a motion to continue to stay the special master proceeding and, on April 9, filed a motion to take administrative notice or, in the alternative, to reopen the record. On April 17, the County filed a motion to proceed with the special master proceeding and, on April 18, filed an opposition to Local 1989's motion to either take administrative notice or to reopen the record. Finally, on April 30, Local 1989 filed a motion to stay the unfair labor practice proceeding and, on May 12, the County opposed it.

Before we consider the parties' motions and exceptions to the hearing officer's recommended order, it is appropriate to summarize the facts. In 1991, the Legislature transferred control of the Port Everglades District and Authority to the County. The transfer became effective in November 1994. All contracts to which the Port Authority was a party were to remain in full force and effect, except the County was substituted for the Port Authority. In 1993, the Port Authority entered into a collective bargaining agreement with Local 1989 which expired in September, 1995. The agreement contained a binding arbitration provision requiring that if the parties reach an impasse in negotiations over a new agreement, the impasse shall be resolved by submitting the last offers of both parties to an arbitrator empowered only to select one of the two offers.

The County and Local 1989 negotiated for a successor agreement which ended in impasse. Local 1989 sought to invoke the binding arbitration provision in the parties' expired agreement to resolve the impasse Local 1989's last offer included the continuation of all the provisions in the expired agreement, except for salary increases, over a three year period. The County sought appointment of a special master under Section 447.503, Florida Statutes. Subsequently, the Commission granted Local 1989's motion to stay the special master proceeding pending Local 1989's motion to compel arbitration in the circuit court. The County then filed this unfair labor practice charge.

This case presents a factual permutation of an issue which the Commission has considered before: whether a contractual provision which requires the submission of unresolved bargaining issues to binding interest arbitration violates the statutory impasse procedure in Section 447.403, Florida Statutes. In re City of Boynton Beach, 7 FPER  12090 (1981), the Commission gave express approval to parties to enter into voluntary binding interest arbitration of impasse issues so long as the contractual scheme was consistent with statutory design. There the Commission ruled that a contractual agreement to accept a special master's recommended decision as a binding determination of disputed impasse issues satisfied legislative intent that the special master's recommendations be accepted by the parties. The Commission determined that, rather than violating Section 447.403, Florida Statutes, such a contractual provision furthered its policy goal and was consonant with it.

Although we too subscribe to the "fundamental policy of allowing and encouraging the parties to provide their own solutions to disputes" expressed by the Commission in Boynton Beach we cannot sanction solutions that are contrary to public policy. Nor may public policy rights be waived. See generally Department of Health and Rehabilitative Service v. E.D.S. Corporation, So.2d 353 (Fla. 1st DCA 1994). Contrary to the majority opinion in the Boynton Beach case, we believe that an agreement that seeks to remove from the local legislative body the authority to resolve disputed impasse issues provided by Section 447.403(4)(d), runs contrary to the public policy expressed therein by the Legislature. Thus, we agree with the conclusions of Commissioner Parrish in his dissent in Boynton Beach and the hearing officer in this case that the statutory impasse procedure provided by Section 447.403, Florida Statutes, preserves to the local legislative body the ultimate decision on impasse items. For these reasons, we decide that binding interest arbitration under any guise is an unlawful subject of bargaining and recede from Boynton Beach to the extent it holds otherwise.

We hasten to add, however, that our decision today does not prohibit parties from agreeing to deviate from the statutory impasse process in ways other than that specifically proscribed above in an attempt to facilitate negotiations. Except for the stricture imposed by this order, their freedom to contract or agree to resolve impasses in negotiations remains unimpaired. Accordingly, Local 1989's second exception is denied.

Despite the policy determination above, we do not find Local 1989 to have acted unlawfully by attempting to enforce the interest arbitration provision contained in its expired collective bargaining agreement to resolve issues at impasse. Under the Commission's ruling in Boynton Beach both the provision and any attempt to enforce it were arguably lawful prior to today. Accordingly, we grant a portion of Local 1989's third exception.

Inasmuch as we have found Local 1989's attempt to enforce the contractual binding interest arbitration provision to be lawful, there is no need to address the estoppel issue in exception five or the issues raised in Local 1989's first and a portion of its third exception. Cf. City of Gainesville v. IAFF 1257 , 22 FPER  27021 (1995) (employer estopped from asserting that wage parity clause it proposed and negotiated was void as against public policy). Accordingly, exceptions one, a portion of three, and five are dismissed as moot. Additionally, Local 1989's motion to take administrative notice or, in the alternative, to reopen the record is dismissed as moot.

In a portion of its fourth exception, Local 1989 argues that submitting a three year duration clause to the arbitrator is not an unfair labor practice. Section 447.403, Florida Statutes, does not prohibit parties from presenting duration clauses to impasse. Moreover, in Teachers Association of Lee County v. Lee County School Board, 22 FPER  27215 (1996), the Commission ruled that a duration clause extending beyond the first fiscal year under negotiation may even be imposed by the legislative body so long as, in the absence of ratification, it was not enforced. Consequently, we agree with Local 1989 that its submission to interest arbitration of a duration clause which is effective for longer than the end of the first fiscal year under negotiations is not an unfair labor practice. Accordingly, a portion of the fourth exception is granted.[2]

Next, we agree with the hearing officer that Local 1989 violated Section 447.501(2)(a), Florida Statutes, when it insisted to impasse that the County include an interest arbitration provision in a successor collective bargaining agreement. The Commission's ruling in Boynton Beach which provided parties with the imprimatur to include such a provision voluntarily, nevertheless instructed parties that they could not be compelled to include such a provision in a successor contract. See also West Palm Beach Association of Firefighters, Local Union 727 v. Board of City Commissioners of the City of West Palm Beach, 448 So.2d 1212 (Fla. 4th DCA 1984).

The guidance provided by the Boynton Beach case on this issue also makes a fee award to the County appropriate. Local 1989 either knew or should have known that it could not submit an interest arbitration provision to impasse. Accordingly, a portion of the County's second exception is granted.

In its sixth exception, Local 1989 argues that the statutory impasse resolution process is unconstitutional because it deprives public employees of their right to bargain collectively. This issue has been decided by the United States 11th Circuit Court of Appeals which held that the Florida statutory procedure for resolving an impasse in collective bargaining through local legislative action was neither unconstitutional on its face nor as applied, when the union was afforded "meaningful opportunity to be heard" before the local legislative body. See Florida State Lodge, Fraternal Order of Police, Hialeah Lodge 12 v. City Hialeah, 815 F.2d 631 (11th Cir. 1987). Accordingly, Local 1989's sixth exception is denied.

Finally, we agree with the hearing officer's analysis and conclusion that Local 1989 did not violate Section 447.501(2)(b), Florida Statutes. It is unnecessary for us to address or adopt the balance of the hearing officer's analysis.

Upon review of the entire record, we conclude that the hearing officer's findings of fact are supported by competent, substantial evidence. We further conclude that the proceedings upon which those findings are based comply with the essential requirements of law. Therefore, the Commission adopts the hearing officer's facts. The Commission also adopts that portion of the hearing officer's analysis and conclusions of law addressed above, as modified by our resolution of the exceptions.

Next, we will address the remaining motions. Local 1989 filed a motion to stay this case contending that the parties have reached a tentative agreement that does not include an interest arbitration provision and, if the agreement is ratified, the issues raised by the charge are moot. The County filed a response to this motion contending that any post-charge actions by Local 1989 do not render the charge moot because any cease and desist notice is important to caution Local 1989 against such conduct in the future.

Upon consideration, Local 1989's motion to stay this case is denied. We agree with the County that remedial action taken by a respondent after a charge has been filed is not a basis for dismissing the charge, although it may affect the Commission's remedy. See City of Tampa v. IAFF, Local 754, 15 FPER  20364 (1989).

Finally, Local 1989 filed a motion to continue the stay of the special master proceeding. Local 1989 requests the Commission continue the stay until the resolution of its motion to compel arbitration. That motion was denied by the circuit court and appealed. Local 1989 argues that commencing the special master proceeding prior to the resolution of this proceeding will unnec- essarily tax the parties' resources because the special master's decision may prove to be a nullity.

In response to Local 1989's motion to continue the stay, the County filed a motion to proceed with the special master proceedings. The County contends that the stay was initially granted pending the resolution of the motion to compel arbitration in circuit court and the circuit court denied that motion in March, 1997. Additionally, the County argues that Local 1989's pending motion is for an indefinite stay and the appeal may not reach finality for a lengthy period of time.

Upon consideration, both motions are dismissed because they are moot. Local 1989's motion to stay this proceeding asserts that the parties have reached a tentative agreement which only needs to be ratified. Therefore, it appears that the parties have no need to commence a special master proceeding.

Based on the record in this case and for the reasons stated in the recommended order and in our discussion above, the Commission makes the following conclusions of law:

1. The County is a public employer within the meaning of Section 447.203(2), Florida Statutes.[3]

2. Local 1989 is an employee organization within the meaning of Section 447.203(11), Florida Statutes, and is the certified bargaining agent for a group of fire fighting employees as defined by Section 447.203(12), Florida Statutes.

3. Local 1989 did not violate Section 447.501(2)(b), Florida Statutes, because it did not attempt to cause the County to discriminate against an employee because of his or her union membership or to cause the County to violate any of the provisions of Section 447.501.

4. Local 1989 did not violate Section 447.501(2) (a) and (c), Florida Statutes, by either attempting to enforce a contractual interest arbitration provision to resolve impasse issues or by attempting to impose through interest arbitration a duration clause which is effective for longer than the end of the first fiscal year under negotiations.

5. Local 1989 violated 447.501(2)(a) and (c), Florida Statutes, by insisting to impasse that the County include an interest arbitration provision in a successor collective bargaining agreement.

6. A pro rata award of reasonable attorney's fees and costs to the County is appropriate for litigating that portion of its charge in which it prevailed. The amount of attorney's fees and costs shall be determined in the manner provided in Florida Administrative Code Rule 38D-14.004.

7. An award of attorney's fees and costs to Local 1989 is not appropriate.

Pursuant to Section 447.503(6)(a), Florida Statutes, the Commission ORDERS Port Everglades Fire Fighters Association, IAFF, Local 1989, to:

1. Cease and desist from:

a. Insisting to impasse that the Broward County Board of County Commissioners include an interest arbitration provision in a successor collective bargaining agreement.

b. In any like or related manner, refuse to bargain collectively or fail to bargain collectively in good faith with a public employer.

c. In any like or related manner, interfere with, restrain, or coerce public employees in the exercise of any rights guaranteed them under Chapter 447, Part II, Florida Statutes.

2. Take the following affirmative action:

a. Upon request of the County, renegotiate any interest arbitration proposal pending ratification.

b. Pay to the County its reasonable attorney's fees and costs of litigation incurred in prosecuting the violation found in this case.

c. Post immediately for sixty (60) days, where notices to employees are customarily posted, copies of the attached notice.[4] Local 1989 shall ensure that the notices are not defaced and are not covered by other material. Copies of the notice shall be signed by Local 1989's authorized representative prior to posting.

d. Notify the Commission in writing within twenty (20) calendar days from the date of the Commission's final order, that Local 1989 has complied with this order.

This order may be appealed to the appropriate district court of appeal. A notice of appeal must be received by the Commission and the district court of appeal within 30 days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record of appeal. Further explanation of the right to appeal is provided in Sections 120.68 and 447.504, Florida Statutes, and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.005.

It is so ordered.

MAHON, Jr., Chairman, GOODING and GERTZ, Commissioners, concur.

I HEREBY CERTIFY that this document was filed and a copy served on each party on July 9, 1997.

BY:
Mary Ann Burns
Clerk

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[1] We have rephrased the issues raised by the charge in the interest of clarity.

[2] In light of our resolutions stated above, the other portion of the fourth exception is moot.

[3] The hearing officer inadvertently referred to the "City" rather than the County in his conclusions of law. Thus, the County's first exception is granted.

[4] In the event the Commission's order is appealed and affirmed by the District Court of Appeal, the words in the notice "Posted pursuant to an order of the Public Employees Relations Commission" shall be immediately followed by the words "affirmed by the District Court of Appeal."

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