[[Summary: May a public employer make a wage increase imposed pursuant to Section 447.403(4)(e), Florida Statutes 1995), retroactive to a date prior to the date upon which legislative action was taken where: (1) the employees in the bargaining unit failed to ratify the collective bargaining agreement, and (2) the certified bargaining agent agrees with such action as it waived any right to bargain over and any objection to such action? It is beyond the scope of the Commission's authority to issue a declaratory statement for it to be used to resolve an argument in favor of a petitioner so that it can tell a third party it may lawfully take certain acts desired by the petitioner. Accordingly, this petition is DISMISSED. ]]

IN RE: PETITION FOR DECLARATORY STATEMENT OF THE TEACHERS ASSOCIATION OF LEE COUNTY AND THE SUPPORT PERSONNEL ASSOCIATION OF LEE COUNTY.
Case No. DS-96-001
Order Number: 96DS-159
Date Issued: August 5, 1996
ORDER DENYING PETITION
FOR DECLARATORY STATEMENT

Thomas W. Brooks, Tallahassee, attorney for Petitioners.

John M. Hament, Sarasota, attorney for the School Board of Lee County.

On April 24, 1996, the Teachers Association of Lee County (Teachers Association) and the Support Personnel Association of Lee County (Support Association) filed a petition pursuant to Florida Administrative Code Rule 38D-22.002, requesting that the Commission issue a declaratory statement on the following questions:
May a public employer make a wage increase imposed
pursuant to Section 447.403(4)(e), Florida Statutes
(1995), retroactive to a date prior to the date upon
which legislative action was taken where: (1) the
employees in the bargaining unit failed to ratify
the collective bargaining agreement, and (2) the
certified bargaining agent agrees with such action
as it waived any right to bargain over and any objection to such action?

Where additional funds become available as a result
of a legislatively imposed wage increase not being
made retroactive due to the failure of ratification,
does Section 447.403(4)(e), Florida Statutes (1995),
prohibit the public employer and the certified
bargaining agent from negotiating or agreeing to
distribute such funds to bargaining unit employees
as wage increases in addition to those imposed
through legislative body action?

Notice of this petition was published in the Florida Administrative Weekly on May 17, 1996. On June 5, 1996, the School Board of Lee County (School Board) filed a response to the petition.

The petition sets forth the following undisputed facts. The Teachers Association, the Support Association, and the School Board reached impasses in collective bargaining on the issue of wages. The School Board, acting as a legislative body in accordance with Section 447.403, Florida Statutes, resolved the issue of wages. The Teachers Association failed to ratify a collective bargaining agreement which included the imposed wages. The School Board, relying upon the Commission's decision in LIUNA, Public Employees Local 678 v. Orange County, 19 FPER  24061 (1993), stated that it could not implement a retroactive pay raise for the affected employees in the bargaining unit represented by the Teachers Association without being found guilty of an unfair labor practice because of a failure of ratification. It was stated that this was the case, even with a waiver or "verbal agreement" (albeit without ratification) by the Teachers Association allowing a retroactive pay raise.

The School Board, in its response to the petition, disputes one of its factual statements. The School Board further alleges that additional facts have transpired since the filing of the petition. No response has been filed concerning the School Board's alleged additional facts. [1/ In any case, it is ordinarily beyond the scope of a declaratory statement to resolve factual disputes between the parties.]

The School Board states, contrary to the facts alleged in the petition, that it has never agreed to provide a legislatively imposed pay increase retroactively. The School Board states that it "one particular consequence of a lack of ratification was that the legislatively resolved issue of compensation would, pursuant to  447.403(4)(e), Florida Statutes, take effect as of the date of the legislative body's actions ..., thereby precluding the payment of any retroactive salary increase for the period between [the beginning of the School Board's fiscal year and the time of the School Board's legislative body resolution of impasse items]."

The School Board further states that, since the filing of the petition, the Support Association has ratified its agreement with the School Board which contains an imposed wage provision. According to the School Board, ratification by the Support Association allowed the employees in that bargaining unit to receive a retroactive pay increase, pursuant to the School Board's prior statements to representatives of both employee organizations in negotiations.

The School Board further states that the instant petition was filed after the School Board was informed by the Teachers Association that it would consider filing such a petition to obtain a ruling from the Commission as to the legality of the School Board paying a retroactive pay raise regardless of ratification. The School Board asserts that it informed the Teachers Association that, regardless of the Commission's interpretation of the law in a declaratory statement, the School Board would not revisit the issue of retroactive wages for the employees in the unit represented by the Teacher's Association. Finally, the School Board argues to the Commission that its action in denying retroactivity of a pay raise for the bargaining unit which did not ratify an agreement has been proper and entirely consistent both with the applicable statute and Commission case law.

Florida Administrative Code Rule 38D-22.001 prescribes the purpose and applicability of declaratory statement as follows:
A declaratory statement is a means for determining
specific questions as to the rights, obligations, or
liabilities of a party when controversy or doubt has
arisen regarding the applicability of a specific
statute, or a specific Commission order or rule.
Petitions for a declaratory statements may not be
used to resolve factual disputes between adversaries
and are not to be used as a substitute for other
remedies provided by Chapter 447, Florida Statutes.
The potential affect upon a petitioning party's
interest must be alleged in order for petitioner to
show the existence of a controversy or doubt.

Consistent with the language of the aforementioned rule, the Commission has consistently dismissed petitions for a declaratory statement which have asked for opinions as to actions to be taken in active controversies which relate to the conduct of an entity other than the petitioner. E.g. In re IAFF, Local 2489, 15 FPER  20183 at 384 (1989) and cases cited therein. The purpose of a petition for a declaratory statement is not to resolve an active dispute or controversy between parties, but to provide guidance with respect to future action contemplated by the petitioner. Id.

The School Board replies in response to the petition that it was told by the Teachers Association that it would file this petition in an apparent attempt to obtain Commission resolution of a dispute between it and the School Board over whether the School Board could pay a retroactive wage increase even in the absence of ratification. It is beyond the scope of the Commission's authority to issue a declaratory statement for it to be used to resolve an argument in favor of a petitioner so that it can tell a third party it may lawfully take certain acts desired by the petitioner. Accordingly, this petition is DISMISSED.

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 on 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 38D15.005.
It is so ordered.
HORNE, Chairman, ANTHONY and GOODING, Commissioners, concur.
I HEREBY CERTIFY that this document was filed and a copy served on each party on August 5, 1996.
BY: Mary ann Burns
Clerk