SCHOOL BOARD OF POLK COUNTY, APPELLANT,
v.
FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, ET AL., APPELLEES
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The Florida District Court of Appeal held that the Public Employees Relations Commission (PERC) erred in adding bus garage employees to an existing collective bargaining unit without first conducting a self-determination election among those employees. The court ruled that public employees are entitled to vote on whether to join an existing unit, consistent with National Labor Relations Board precedent.
PERC's order adding bus garage employees to the existing unit without a self-determination election reflects an erroneous interpretation of PERA and is set aside. Public employees are entitled to vote on whether to join an existing bargaining unit before being added to that unit, consistent with National Labor Relations Board precedent in analogous situations.
[1] Public employees in a fringe group are entitled to a self-determination election before being added to an existing collective bargaining unit.
[2] A public employee relations commission's interpretation of a public employee relations act is erroneous if it denies fringe group employees the right to vote on inclusion…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In such cases, the NLRB has never failed to permit a self-determination election among the members of the fringe group before adding them to the existing unit.”
Establishes the controlling NLRB precedent that fringe groups must have opportunity to vote before unit inclusion
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Join FLexlaw to unlock all legal intelligenceIn 1975, PERC certified a union as the exclusive bargaining agent for a unit of maintenance, custodial, and warehouse employees of the Polk County Sch…
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DANAHY, Judge.
The Public Employees Relations Commission (PERC) takes the position in this case that a “fringe” group of public employees may be added to an existing collective bargaining unit without giving the employees in that group the opportunity, through a self-determination election, to indicate whether they wish to be included in the existing unit or to remain unrepresented. We disagree.
In 1975 PERC certified the Polk County Non-Instructional Employees Union, Local 2227, AFSCME, AFL-CIO (the Union) as the exclusive bargaining agent for a collective bargaining unit composed of the maintenance, custodial and warehouse employees of the School Board of Polk County (the School Board). The unit did not include the School Board’s bus garage employees. Five years later , the union initiated this proceeding by filing a petition for unit clarification seeking to add the bus garage employees to its existing unit of maintenance, custodial and warehouse employees.
All parties agree that the bus garage employees would not constitute an appropriate bargaining unit by themselves, and that the only unit in which they could appropriately be placed is the overall unit of maintenance, custodial and warehouse employees. The sole issue is whether the bus garage employees should be permitted to vote on the matter. The Union and the School Board agree that they should, and asked PERC to conduct a secret ballot election among the bus garage employees before adding them to the existing unit. Notwithstanding that request, PERC entered an order directing that the bus garage employees be placed in the existing collective bargaining unit without an election. The School Board has petitioned this court for review of that order. We hold that the order reflects an erroneous interpretation of the Public Employees Relations Act (PERA) and set it aside.
In reaching our decision, we chose to follow the precedent set by the National Labor Relations Board (NLRB) in like cases arising under the National Labor Relations Act (NLRA). Since the relevant provisions of Florida’s PERA are similar to those of the NLRA,1 decisions of the NLRB are per tinent and instructive where, as here, the case is one of first impression under PERA. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108 (Fla. 1st DCA 1977); Craver and La Peer, The Legal Obligations of Governmental Employers and Labor Organizations Under the Recognition-Certification Provisions of the Florida Public Employees Relations Act, 27 U.Fla.L.Rev. 705, 711-712 (1975).
Both the School Board and PERC recognize the relevancy of NLRB decisions in resolving the question presented to us in this case, but neither has favored us with an accurate statement of the NLRB’s position. The NLRB cases cited to us involve an entirely different situation, that in which a representation election is to be held in the historical bargaining unit and the question has arisen whether employees in a fringe group not previously included in the unit should be given the opportunity to vote separately. The NLRB has at times followed the practice of directing a separate vote by the members of such a previously excluded group. The Zia Company, 108 N.L.R.B. 1134 (1954). Its present policy however, is to direct only one election among all employees in the appropriate unit including the members of the fringe group. D. V. Displays Corp., 134 N.L.R.B. 568 (1961). PERC cites the NLRB rule in such cases as authority for the proposition that members of a fringe group previously omitted from a unit may only vote as members of the unit. PERC argues that, therefore, the fringe group may be added to the unit without a self-determination election by its members.
In the case before us, no election is to be held among the members of the Union’s current unit of School Board employees. The question is not whether the bus garage employees should be given the opportunity to vote separately on whether they wish to be represented or permitted to vote only as members of the existing unit. The question is whether the bus garage employees are entitled to vote at all before being added to a currently represented unit.
PERC tells us that there is no analogous proceeding for unit clarification under the NLRA because the NLRB and PERC differ on the timing of unit clarification. PERC says that the NLRB will add a missing fringe group to an appropriate unit only when a question concerning representation is raised concerning the entire unit, including the fringe group; thus, fringe group employees are permitted to express their representational preference contemporaneously with all other unit employees as part of the entire unit’s decision. Thus, PERC concludés that it is inappropriate to delay inclusion of positions mistakenly excluded from their only appropriate unit until such time as a representational controversy exists in the entire unit.
In its zeal to obtain this court’s approval of its position, PERC has failed to advise us of significant decisions relevant to disposition of this appeal. There are NLRB proceedings in which missing fringe groups can be added to existing units notwithstanding that there is no question of representation requiring an election in the overall unit. In such cases, the NLRB has never failed to permit a self-determination election among the members of the fringe group before adding them to the existing unit. Photype, Inc., 145 N.L.R.B. 1268, 1272 n. 8 (1964); The Connecticut Light and Power Co., 121 N.L.R.B. 768 (1958); D. V. Displays Corp., 134 N.L.R.B. 568, 573 (1961) (Rodgers and Leedom, dissenting). We agree with that approach.
PERC admonishes against “slavish adherence” to NLRB precedent and offers many reasons why we should consider that Florida’s public sector labor policy embodied in PERA justifies PERC’s decision in this case, which PERC describes as “a correct balancing of competing public interests in accordance with Florida public sector labor policy.” We are not persuaded that there is any public policy reason to deny public employees the same opportunity as private employees to vote on the matter before" adding those employees to an existing collective bargaining unit. We set aside the PERC order under review and remand this proceeding with directions that PERC conduct a self-determination-election among the School Board’s bus garage employees on the question whether they wish to become part of the bargaining unit composed of maintenance, custodial and warehouse employees, or whether they wish to remain outside the unit and unrepresented.
SCHEB, C. J., and HOBSON, J., concur. . Compare section 447.301(1), Florida Statutes (1979), with 29 U.S.C. section 157 (1970). Compare section 447.307, Florida Statutes (1979), with 29 U.S.C. section 159 (1970).
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City OF Orlando v. Fla. Pub. Emps. Relations Comm'n & Orange Cnty. Police Benevolent Ass'n, 435 So. 2d 275 (Fla. 5th DCA 1983)…n of employment of those within the bargaining unit, PERC has incorrectly interpreted PERA, so we are dealing with a question of law which we are obligated to correct. See School Board of Polk County v. Florida Public Employees Relations Commission, 399 So. 2d 520 (Fla.2d DCA 1981); Pasco County School Board v. Florida Public Employees Relations Commission. Under sections 447.301(2) and 447.309(1), Florida Statutes (1981), a public employer is obligated to bargain collectively in the determination of the wag…
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City OF Clearwater (Fire Department) v. Lewis, 404 So. 2d 1156 (Fla. 2d DCA 1981)…hese matters is likely to result in a more informed decision. Since there is a reasonable basis for the policy established by PERC in this case which is consistent with the philosophy of chapter 447, we will not disturb it. Cf. School Board v. PERC, 399 So. 2d 520 (Fla. 2d DCA 1981), in which this court overturned a PERC order deemed to be arbitrary and out of harmony with the Public Employees Labor Relations Act. We also agree with PERC’s contention that it did not improperly overrule the hearing officer’s…
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Rewolinski v. Fisher, 444 So. 2d 54 (Fla. 3d DCA 1984)…rnal association matters takes on added force. Florida courts have repeatedly stated that in cases involving union matters, analogous federal precedent is highly relevant. School Board of Polk County v. Florida Public Employees Relations Commission, 399 So. 2d 520 (Fla. 2d DCA 1981); North Brevard County Hospital District v. Florida Public Employees Relations Commission, 392 So. 2d 556 (Fla. 1st DCA 1980); Public Employees Relations Commission v. District School Board of DeSoto County, 374 So. 2d 1005 (Fla. 2…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pasco Cnty. Sch. Bd. v. Fla. Pub. Emps. Relations Comm'n & Pasco Cnty. Classroom Teachers Ass'n, 353 So. 2d 108 (Fla. 1st DCA 1977)