IN THE SUPREME COURT OF FLORIDA CASE NO. SC INTERNATIONAL UNION OF POLICE ASSOCIATIONS, Petitioner, vs. STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC INTERNATIONAL UNION OF POLICE ASSOCIATIONS, Petitioner, vs. STATE OF FLORIDA, Respondent. On Petition for Discretionary Review of the Opinion of the First District Court of Appeal (Case No. 1D ) JURISDICTIONAL ANSWER BRIEF OF RESPONDENT ALLEN, NORTON & BLUE, P.A. Michael Mattimore Florida Bar ID No Avery McKnight Florida Bar ID No North Monroe Street Tallahassee, Florida Tel: (850) Fax: (850)

2 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...4 JURISDICTIONAL STATEMENT ARGUMENT...6 I. The Opinion Does Not Expressly and Directly Conflict with Schnurmacher...6 Page II. The Opinion Does Not Expressly and Directly Conflict with Precedents Holding that Parties May Confer Jurisdiction upon Arbitrators Through Waiver...8 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE ii

3 TABLE OF AUTHORITIES CASES City of Miami v. Fraternal Order of Police, Miami Lodge 20, 511 So. 2d 549 (Fla. 1987)...6 City of West Palm Beach v. Palm Beach Co. Police Benevolent Assoc., 387 So. 2d 533, 535 (Fla. 4th DCA 1980)...3 Commc'ns Workers of Am. v. Indian River Sch. Bd., 888 So. 2d 96, 101 (Fla. 4th DCA 2004)... 7, 8 Computer Task Group, Inc. v. Palm Beach Co., 782 So. 2d 942, 944 (Fla. 4th DCA 2001)...6 Local Union # 2135, Int'l Assoc. of Firefighters v. City of Ocala, 371 So. 2d 583, 585 (Fla. 1st DCA 1979)...6 Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328, 1329 (Fla. 1989)...7 FLORIDA CONSTITUTION Article V, Section 3(b)(3)....5 FLORIDA STATUTES Chapter 447, Fla. Stat... 4, 6, , Fla. Stat , Fla. Stat FLORIDA RULES Fla. R. App. P (a)(2)(A).5 Fla. R. App. P (a) iii

4 STATEMENT OF THE CASE AND FACTS The instant matter originated with the filing of a class action grievance by Petitioner, International Union of Police Associations ( IUPA ) against the Respondent, State of Florida ( State ). In its grievance, IUPA maintained that the Department of Highway Safety and Motor Vehicles ( DHSMV ), which represented one of the many covered agencies under the CBA, had a past practice of allowing its officers to accumulate special compensatory leave in excess of the 240 hours and to receive payment for such time upon retirement at their current rate of pay. IUPA further asserted that such a past practice should be maintained. DHSMV denied the grievance at Step 2 and the Department of Management Services ( DMS ) denied the grievance at Step 3. In accordance with the CBA, the matter ultimately proceeded to arbitration before Charles A. Hall ( Arbitrator ) over the objection of the State. After the hearing and submission of postarbitration briefs, the Arbitrator issued a decision sustaining IUPA s grievance. As a result, the State filed its Application to Vacate Arbitration Award pursuant to sections and , Florida Statutes. Subsequently, the trial court issued its Final Judgment Confirming Arbitration Award and Denying Application to Vacate dated April 25, 2005 ( Final Judgment ). The appeal below followed and the State submitted that the Final Judgment should be reversed because: (1) the Arbitrator exceed his powers by considering 40178

5 the issue of past practice rather than the clear language of the CBA; (2) there was evident partiality by the Arbitrator; and (3) the proper forum for the labor dispute between the State and IUPA was before the Public Employees Relations Commission ( PERC ) rather than the Arbitrator. In the per curiam Opinion, the First DCA correctly determined that PERC was indeed the proper forum for the parties labor dispute rather than the Arbitrator as objected to by the State. (Opinion at pp. 1 2). In pertinent part, the First DCA explained that: The collective bargaining agreement between the parties provides for resolution by arbitration of grievances. The term grievance is defined in that agreement as a dispute involving the interpretation or application of the specific provisions of th[e] agreement. From the outset, the state has argued, we believe correctly, that the dispute does not involve the interpretation or application of any specific provision of the collective bargaining agreement. We agree with the state that, if anything, the dispute involves whether a unilateral change in a term or condition of employment has occurred. As such, the dispute falls within the exclusive jurisdiction of PERC pursuant to the provisions of chapter 447, Florida Statutes. See Commc ns Workers of Am. v. Indian River Sch. Bd., 888 So. 2d (Fla. 4th DCA 2004) (holding that, because the union s complaint was arguably covered by chapter 447, absent deferral by PERC, it was subject to PERC s exclusive jurisdiction). While PERC may have the power to defer to arbitration, only it may make that determination. Id. See also City of Miami v. Fraternal Order of Police, Miami Lodge 20, 511 So. 2d 549 (Fla. 1987). A party may not bypass PERC s jurisdiction and proceed directly to arbitration. Commc ns Workers of Am., 888 So. 2d at 101. Because this is precisely what [IUPA] did here, we are constrained to reverse and remand with directions that

6 the trial court set aside its final order confirming the arbitrator s decision and enter an amended final order granting the state s application to vacate that decision. (Emphasis added). (Id. at 2 3). Given its resolution that PERC possessed excusive jurisdiction of the parties labor dispute, the First DCA held that it was unnecessary to address the State s remaining two issues related to the Arbitrator s alleged improprieties. (Id. at 3). On March 29, 2006, IUPA filed a Motion for Rehearing and Rehearing En Banc arguing that the Panel had: (1) misapprehended the issue of whether the parties dispute involved interpretation or application of a collective bargaining agreement; (2) overlooked the issue of waiver; and (3) rendered a decision that created an intradistrict conflict. In response thereto, the State submitted that IUPA s motion was improper inasmuch as it was simply a vehicle for its attempt to continue advocating and re-arguing matters already presented to and unanimously decided by the Panel. The State added that IUPA s motion violated Florida Rule of Appellate Procedure 9.330(a) by presenting new arguments and relying upon new case authorities not previously cited in a brief or raised at an oral argument. 1 1 On page 7 of the Jurisdictional Brief, IUPA improperly presents to this Court the same new arguments and cases including City of West Palm Beach v. Palm Beach Co. Police Benevolent Assoc., 387 So. 2d 533, 535 (Fla. 4th DCA 1980) and Computer Task Group, Inc. v. Palm Beach Co., 782 So. 2d 942, 944 (Fla. 4th DCA 2001), which were not previously cited in a brief or raised at an oral argument before the First DCA. As such, the Court should decline to consider these new

7 Furthermore, the State demonstrated that the Opinion did not create an intradistrict conflict and was wholly distinguishable from the cases relied upon by IUPA in support of its request for rehearing en banc. Accordingly, the First DCA denied IUPA s motion. Presently, IUPA erroneously seeks for this Court to invoke its discretionary jurisdiction to review the Opinion under Article V, Section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A). SUMMARY OF THE ARGUMENT The labor dispute between the parties, which is the basis of the instant Opinion, arises from an alleged unilateral change in a past practice of employment and not a violation of any terms of the CBA. Unilateral changes in the terms and conditions of employment may constitute an unfair labor practice under Chapter 447 of the Florida Statutes. This Court has found that when the issues constitute an unfair labor practice, PERC has sole jurisdiction. IUPA does not refute that the labor dispute between the parties was arguably covered by the provisions of Chapter 447, Part II, of the Florida Statutes, and was within the preemptive jurisdiction of PERC. Given that PERC has preemptive authority, retains jurisdiction and has the exclusive decision-making power to defer to arbitration, issues. See Savoie v. State, 442 So. 2d 308, 312 (1982) (The Court s authority to consider issues other than those upon which jurisdiction is based is discretionary and should be exercised only when these other issues have been properly briefed and argued and are dispositive of the case)

8 IUPA was not permitted to bypass the jurisdiction of PERC and proceed directly to arbitration regarding its dispute over the timely objections of the State. In addition, the State did not confer jurisdiction upon the Arbitrator to decide whether the parties had amended Article 23 of their agreement through a longstanding mutually agreed upon past practice. The undisputed record before the First DCA reflects that the State did not concede that the CBA was capable of being amended by past practice and confirms that the matter proceeded to arbitration over the State s objections. Indeed, IUPA has readily admitted that in this case the [S]tate never waived its claim that only PERC could determine whether there had been a unilateral change. Consequently, the per curiam Opinion rendered by the First DCA was appropriate and does not directly and expressly conflict with Schnurmacher or any other decisions by this Court or other district courts of appeal on the same point of law. JURISDICTIONAL STATEMENT The State urges this Court to deny the Petition for Discretionary Review of the Opinion of the First DCA. Contrary to IUPA s assertions, the instant Opinion does not expressly and directly conflict with a decision of this Court or another district court of appeal on the same point of law, and does not expressly affect a class of state officers. Accordingly, this Court should not invoke its discretionary

9 jurisdiction available under Article V, Section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A). ARGUMENT I. THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH SCHNURMACHER The labor dispute between the parties arises from an alleged unilateral change in a past practice of employment and not a violation of any terms of the CBA. Unilateral changes in the terms and conditions of employment may constitute an unfair labor practice under Chapter 447 of the Florida Statutes. This Court has found that when the issues constitute an unfair labor practice, PERC has sole jurisdiction. See City of Miami v. Fraternal Order of Police, Miami Lodge 20, 511 So. 2d 549 (Fla. 1987). Moreover, IUPA does not refute that the labor dispute between the parties was arguably covered by the provisions of Chapter 447, Part II, of the Florida Statutes, and was within the preemptive jurisdiction of PERC. See Local Union # 2135, Int l Assoc. of Firefighters v. City of Ocala, 371 So. 2d 583, 585 (Fla. 1st DCA 1979). Indeed, IUPA has acknowledged previously in its Motion for Rehearing and Rehearing En Banc that in this case the [S]tate never waived its claim that only PERC could determine whether there had been a unilateral change. Such an acknowledgment reflects that the First DCA was correct to agree with the State that, if anything, the dispute involve[d] whether a unilateral change in a term or

10 condition of employment has occurred and find that absent deferral by PERC, the dispute falls within the exclusive jurisdiction of PERC pursuant to the provisions of chapter 447, Florida Statutes. (Opinion at p. 3). See City of Miami, 511 So. 2d 549 (holding that PERC had the authority for deferral in order to give effect to the various provisions of Chapter 447, Part II, Florida Statutes, and in particular the mandatory requirement of final and binding arbitration concerning interpretations of a collective bargaining agreement); Commc ns Workers of Am. v. Indian River County Sch. Bd., 888 So. 2d 96 (Fla. 4th DCA 2004) (holding that absent deferral by PERC, union s complaint was arguably covered by Chapter 447 and subject to PERC s exclusive jurisdiction). In light of these facts, IUPA s assertion that the court redefined grievance to be a dispute involving the interpretation or application of the specific provisions of th[e] agreement as they have been expressly written is disingenuous. Furthermore, its suggestion that the State agree[d] to be bound to the Arbitrator s interpretation of the terms of a collective bargaining agreement so long as the interpretation of the contractual language is reasonably debatable is completely erroneous and without merit. In Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328 (Fla. 1989), this Court stated that: [I]t is well settled that the award of arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts; if the award is within the scope of the submission,

11 and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment. [citations omitted]. (Emphasis supplied). Given that PERC has preemptive authority, retains jurisdiction and has the exclusive decision-making power to defer to arbitration, IUPA was not permitted to bypass the jurisdiction of PERC and proceed directly to arbitration regarding its dispute over the timely objections of the State. See Commc ns Workers of Am., 888 So. 2d at 101. Accordingly, the per curiam Opinion rendered by the First DCA was appropriate and does not directly and expressly conflict with Schnurmacher or any other decisions by this Court or other district courts of appeal on the same point of law. II. THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH PRECEDENTS HOLDING THAT PARTIES MAY CONFER JURISDICTION UPON ARBITRATORS THROUGH WAIVER Contrary to IUPA s assertion, the State did not confer jurisdiction upon the Arbitrator to decide whether the parties had amended Article 23 of their agreement through a longstanding mutually agreed upon past practice. Furthermore, IUPA s contention that the First DCA s refusal to recognize that the parties had conferred jurisdiction upon the Arbitrator to decide the very issue in dispute directly and expressly conflicts with the precedents of other District Courts is completely misguided and a distortion of the factual record in this matter. The undisputed record before the First DCA reflects that the State did not concede that the CBA

12 was capable of being amended by past practice and confirms that the matter proceeded to arbitration over the State s objections. In fact, IUPA has readily admitted that in this case the [S]tate never waived its claim that only PERC could determine whether there had been a unilateral change. Most significantly, and as expressly set forth in the Arbitrator s decision: The State contends that the clear and unambiguous language of the CBA provides management with sufficient authority for the enforcement of the provision that limits the accumulation of SCL to 240 hours, regardless of any past practice to the contrary. The State further contends that a past practice cannot amend the clear language of the CBA. The State also contends that in as much as leave time is a mandatory subject of bargaining the proper course of action for the Union should have been for the Union to file an Unfair Labor Practice Charge with the Public Employees Relations Commission based on the State s refusal to bargain over the issue of leave time. Clearly, the State contested the Arbitrator s authority to determine whether the CBA had been amended by past practice and whether arbitration was the appropriate forum for this matter. As also aforementioned, IUPA does not deny or refute that the labor dispute between the parties was arguably covered by the pertinent provisions of Chapter 447 and within the preemptive jurisdiction of PERC. In that IUPA bypassed PERC s exclusive jurisdiction and proceeded directly to arbitration over the objections of the State, the First DCA has properly

13 reversed and remanded with directions that the trial court set aside its Final Order. Accordingly, IUPA s request that this Court invoke its discretionary review of the instant Opinion should be denied. CONCLUSION As recognized by the First DCA, the dispute between the State and IUPA was, if anything, a unilateral change in a term or condition of employment which falls within the exclusive jurisdiction of PERC pursuant to the provisions of Chapter 447 of the Florida Statutes. Because PERC has preemptive authority, retains jurisdiction and has the exclusive decision-making power to defer to arbitration, the First DCA correctly held that the proper forum for the resolution of the parties dispute was PERC rather than an arbitrator over the objections of the State. Contrary to IUPA s assertions, the per curiam Opinion does not expressly and directly conflict with any decisions of this Court or another district court of appeal on the same point of law sufficient to warrant the requested discretionary review. For these reasons and the reasons articulated in detail above, this Court should not invoke its discretionary jurisdiction to review the instant Opinion. Respectfully Submitted, ALLEN, NORTON& BLUE, P.A. s/michael Mattimore North Monroe Street Michael Mattimore Tallahassee, Florida Florida Bar ID No PH: Avery McKnight FAX: (850) Florida Bar ID No

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished, by U.S. Mail, postage prepaid, this 10th day of July, 2006, to Tobe Lev, Esquire, Post Office Box 2231, Orlando, Florida s/michael Mattimore Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing, which utilizes a Times New Roman 14-point font, complies with the font requirements set forth in Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. s/michael Mattimore Attorney