PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Appellant, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Appellee, 425 So. 2d 133

ERVIN, Judge. Appellant, Palm Beach Junior College, appeals an order of the Public Employees Relations Commission (PERC) which determined that a public employer commits an unfair labor practice by bargaining to impasse its proposal to include within a collective bargain agreement a management prerogatives clause, and, after acting as a legislative body, by requiring that the clause be incorporated within the agreement. As a remedy, PERC set aside the impasse resolution action taken by the Board of Trustees in accordance with

Section 447.403(4), Florida Statutes (Supp. 1980), and imposed a modified contract on the parties. Appellant urges numerous points on appeal. We affirm all, but address only one which we find merits extended consideration, urging that the employer’s insistence on the clause was in conformity with a legitimate management interest, and was consistent with case law in the private sector. Bargaining between United Faculty of Palm Beach Junior College (United Faculty) and Palm Beach Junior College Board of Trustees (Palm Beach) began on April 16, 1980.

On June 10, 1980, as part of a package of bargaining proposals, Palm Beach presented to the union a management prerogatives clause, which was rejected by its bargaining representative the following week, and an impasse was declared. A mediator was selected and bargaining sessions were held at which the parties discussed but failed to agree on substitute language for the proposed clause.

Among other things, United Faculty union presented the following alternatives: that the clause be withdrawn; that Palm Beach submit a list of subjects to which the waiver would apply; and that the parties bargain over such a list if the

section were withdrawn until the parties engaged in negotiations for the 1981-82 contract. Palm Beach refused to withdraw its proposal, declined to formulate a list, stating that it believed it could not develop an adequate list, and responded further that it would proceed only if the matter were included in current negotiations for the 1980-81 contract year. On August 28, 1980, a special master was appointed by PERC, and on October 10, 1980, he recommended that the proposed clause not be included within the contract.

On October 30, 1980, Palm Beach proposed two alternative clauses, but the parties were again unable to reach agreement. On November 19, 1980, the Board of Trustees of Palm Beach Junior College, in accordance with

Section 447.403(4), Florida Statutes (Supp.1980), and in its capacity as a legislative body, resolved the impasse by mandating a contract which included the management prerogatives clause originally proposed by Palm Beach. This contract, with salary increases and other terms the parties had tentatively agreed upon during bargaining, was prepared, signed, and offered to United Faculty for a ratification vote in accordance with

Section 447.-403(4)(e), Florida Statutes (Supp.1980). United Faculty declined to sign the contract or to submit it to the members for a vote; instead it filed an unfair labor practice charge with PERC. After a public hearing, the hearing officer’s recommended order found that the proposed clause was not a mandatory subject for bargaining and that Palm Beach had committed an unfair labor practice by bargaining to impasse on the clause. As a remedy, the hearing officer recommended that Palm Beach offer the contract of November 19, 1980, to United Faculty without the clause.

In its conclusions of law, the Commission held, among other things, that inclusion of a management prerogatives clause which operates as a waiver of the [employees’] statutory right to bargain over the effect or impact upon bargaining unit employees of the exercise of management rights prior to the implementation of such management rights or decisions is not a subject over which collective bargaining negotiations are required pursuant to

Section 447.309(1), Florida Statutes (1979). PERC ordered Palm Beach to rescind the action taken on November 19, 1980, and thereafter to offer United Faculty a collective bargaining agreement without the disputed clause, but with the other provisions that the parties had agreed upon during negotiations. This appeal followed. Essentially, we are asked in this appeal whether PERC’s

interpretation of the Public Employees Relations Act (PERA) was in error. The standard to be applied on review of the construction of a statute that an agency is charged to enforce is ordinarily to accord substantial deference to it and decline to overturn it, except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the state’s constitution or the plain intent of the statute. See King v. Seamon, 59 So.2d 859, 861 (Fla.1952); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); Green v.

Stuckey’s of Fanning Springs, Inc., 99 So.2d 867 (Fla.1957); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973); Ft. Pierce Utilities Authority v. Florida Public Service Commission, 388 So.2d 1031, 1035 (Fla.1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981).

As we observed in Framat Realty, Inc., 407 So.2d at 242: “[T]he judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible

interpretations of a statute must and will be sustained, though other

interpretations are possible and may even seem preferable according to some views.” PERC has been provided with broad powers of administering

Part II of

Chapter 447 by

Section 447.207, Florida Statutes (1979). We are not prepared to state on this record that PERC’s

interpretation of the respective statutes was clearly erroneous, unreasonable or in conflict with some provision of the constitution or the plain intent of the statutes involved. We consider that there was, under the circumstances, both competent and substantial evidence, as well as a legal foundation supporting the Commission’s determination that the public employer’s insistence on including the disputed clause within the agreement was an unfair labor practice.

The record reveals that on more than one occasion Palm Beach Junior College refused, in response to the union’s request, to disclose a list of matters over which it proposed to exercise unilateral control. The effect of the public employer’s ultimate action was to force the union to waive, prior to the implementation of any such management decision, whatever right the union might otherwise have following its execution to bargain over the impact the decision could have on mandatory items of bargaining, i.e., the wages, hours, and terms and conditions of employment. See

Section 447.309(1), Florida Statutes. The hearing officer amplified upon the ordinary bargaining process as follows: In the normal course of events, bargaining takes place prior to the management decision involved, or, more properly, in anticipation of management decisions likely to be made. For example, parties may negotiate a clause in a collective bargaining agreement which is only applicable in the event of a layoff to provide an orderly procedure in the event that management decides to lay off employees. The alternative is simply to negotiate layoff at the time the decision to lay off is taken.

By opposing so-called “impact” bargaining, the Respondent [employer] simply registers its preference that contingencies be dealt with before the fact, rather than afterwards. To the extent that contingencies can be anticipated and dealt with before the fact, this is entirely appropriate. But to the extent that unforeseen contingencies arise, insisting that no bargaining take place to resolve such unforeseen contingencies represents a lack of good faith in the negotiating process.

In this context, impact bargaining simply provides a means of resolving disputes concerning necessary but unforeseen changes in wages, hours, terms and conditions of employment consistent with the public interest.... The only bargaining that occurred between the parties was in essence the inclusion of the clause, or alternative clauses, in the agreement. No negotiations took place, however, as to the scope of subjects the proposed clause would encompass. The college either would not or could not provide a list of matters to which the proposed waiver clause might apply.

Under the “take it or leave it attitude” evidenced by the employer, PERC correctly held that Palm Beach refused to bargain collectively in good faith with United Faculty in violation of

Section 447.501(l)(c), Florida Statutes. The public employer’s insistence on including the waiver clause within the agreement, without bargaining over the effect the waiver might have on required subjects of bargaining, is somewhat analogous to the legislative mandate, provided in Sections 447.301(2) and 447.309(5), Florida Statutes (1979), that no collective bargaining agreement shall include any provision relating to retirement. In upholding the First District’s decision invalidating the statutory prohibitions, our supreme court observed that the restrictions “did not simply regulate a particular aspect of collective bargaining — they prohibited it entirely.

Article I,

section 6, permits regulation of the bargaining process but not the abridgement thereof.” City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487, 490 (Fla.1981). Similarly, Palm Beach, through its utilization of a management prerogatives clause, has sought to do that which the legislature was forbidden to do: abridge the bargaining process.

In saying the above, we acknowledge that certain decisions must be retained exclusively by management; that there are “those management decisions which are [so] fundamental to the basic direction of a corporate enterprise or [those] which impinge [so] . .. indirectly upon employment security” as to require their exclusion from the area of mandatory bargaining. Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 223, 85 S.Ct. 398, 410, 13 L.Ed.2d 233, 246 (1964) (Stewart, J., concurring).

For example, determinations “such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the employment relationship.” First National Maintenance Corp. v. National Labor Relations Board, 452 U.S. 666, 676-77, 101 S.Ct. 2573, 2579, 69 L.Ed.2d 318, 329 (1981). On the other hand, some decisions, “such as the order of succession of layoffs and recalls, production quotas, and work rules, are . .. exclusively ‘an aspect of the relationship’ between employer and employee.” Id.

Our state has legislatively recognized the rights of a public employer to make decisions which are consistent with its purpose, including the rights “to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.”

Section 447.209, Florida Statutes. It remains the responsibility of the Commission, subject to review by the courts, to flesh out and refine those decisions which are the exclusive prerogatives of management, and those which must be subjected to the bargaining process. Here, however, we are not presented with an issue involving simply a prerogative which is peculiar to management.

We are instead confronted with the question of whether management has the right to insist on the inclusion of a clause waiving the right to bargain in advance of the implementation of a decision which could affect the required subjects of bargaining. This the public employer is quite properly forbidden to do. We have considered the college’s references to cases in the private sector, but find them distinguishable both on their facts and on the law upon which they were decided. Although we have recognized federal decisions construing the National Labor Relations Act (NLRA) as persuasive authority to the extent

Chapter 447 and the NLRA are analogous, Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), we must decline to follow them in those instances in which the respective acts follow divergent courses. Thus, notwithstanding the United States Supreme Court’s holding in National Labor Relations Board v.

American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), that the employer’s bargaining over the inclusion of a management functions clause in a collective bargaining agreement, which would exclude certain subjects from future arbitration, was not, per se, an unfair labor practice, the facts there revealed that the clause — unlike the one before us — enumerated a limited list of matters which the employer desired to be nonarbitrable.

As a result, the parties were not denied, during the course of collective bargaining, the right to bargain generally over the effect the matters enumerated in the clause might have on those conditions of employment the parties were required to bargain for collectively under the National Labor Relations Act, 49 Stat. 449 (1935), 29 U.S.C. §§ 151 et seq., as amended, 61 Stat. 136 (1947), 29 U.S.C. (Supp. IV) §§ 151 et seq.

Perhaps a more fundamental difference between the situation presented to the Court in American National Insurance Co. and that before us is that the N.L.R.A. “does not compel any agreement whatsoever between employees and employers.” 343 U.S. at 402, 72 S.Ct. at 828, 96 L.Ed. at 1036. Not so PERA.

Section 447.403(4)(d), Florida Statutes, permits the public employer to move a required subject of bargaining through impasse, and, in its capacity as legislative body, to “take such action as it deems to be in the public interest” in order to resolve the issue. Other federal cases construing pertinent provisions of the NLRA are both supportive and non-supportive of the employer’s position.

For example, the Court has stated that a matter which is not a mandatory subject of bargaining may be raised at the bargaining table, unless it is illegal, and the parties may incorporate it into an enforceable collective bargaining agreement. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Labor and management may not, however, insist on it to the point of impasse. Id.

Again, a management decision to replace existing employees with those of an independent contractor to do the same work under similar conditions of employment, in an effort to reduce labor costs, was deemed one peculiarly suitable for resolution within the collective bargaining framework. Fi-breboard Paper Products Corp. v. National Labor Relations Board.

More recently the Court held that a management decision to terminate a cleaning service contract with a third party, caused by a dispute between management and the third party over the amount of fees, was not an unfair labor practice within the meaning of Sections 8(

d) and 8(a)(5) of the National Labor Relations Act (29 U.S.C. §§ 158(

d) and 158(a)(5)), despite the resulting discharge of employees, because the decision “had as its focus only the economic profitability of the contract with Greenpark [the third party], a concern ... wholly apart from the employment relationship.” First National Maintenance Corp. v. National Labor Relations Board, 452 U.S. at 677, 101 S.Ct. at 2579, 69 L.Ed.2d at 329 (1981). Although the Court concluded that the management decision was not part of

Section 8(d)’s “terms and conditions of employment” which the parties were required to bargain, it nevertheless observed that the union had not been certified as the bargaining agent until well after the employer’s economic difficulties with its contractual party had begun; accordingly the Court was “not faced with an employer’s abrogation of ongoing negotiations or an existing bargaining agreement.” 452 U.S. at 688, 101 S.Ct. at 2585, 69 L.Ed.2d at 336 (e.s.). Clearly, a unilateral decision made by management during collective bargaining represents a per se refusal to bargain. National Labor Relations Board v.

Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Perhaps the major distinction between public sector law and that in the private sector is that in the latter the employee has the option to strike — a right specifically denied the public employee in Florida by

Article I,

section 6 of the Florida Constitution. This distinction was alluded to in First National Maintenance Corp.: “[B]oth employer and union may bargain to impasse over these matters [the matters of required bargaining] and use the economic weapons at their disposal to attempt to secure their respective aims.” 452 U.S. at 675,101 S.Ct. at 2578, 69 L.Ed.2d at 328 (e.s.). The courts of Florida in numerous instances have noted that

Section 447.309(1), Florida Statutes, requires a relatively broad scope of negotiations to help counter-balance the absence of the right to strike by public employees. For example, in School Board of Escambia County v. Public Employees Relations Commission, 350 So.2d 819, 821 (Fla. 1st DCA 1977), we observed that the constitutional and legislative prohibitions against strikes by public employees were [n]ever intended to give public employers a power advantage over their employees in contract negotiations.

Strikes are prohibited to protect the public, not to circumvent the rights of public employees to meaningful collective bargaining with their employer. Later, in School Board of Orange County v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979), the Fourth District Court of Appeal commented: We do not agree with the petitioner’s position that the right of ultimate decision making instills the right of unilateral action without bargaining because to hold that would effectively gut the life of the statute providing for bargaining by public employees.

There are certain tradeoffs in the statutory scheme not the least of which is the lack of right to strike. On the record before it, the Commission, in our judgment, correctly determined that a provision such as

Article XXII,

Section C, does not itself constitute a wage, hour, term, or condition of employment within the meaning of

Section 447.309(1), and therefore properly required its excision. PERC, drawing upon its expertise in the field regulated, observed that courts in other public sector jurisdictions, with laws prohibiting strikes, have broadly construed the phrase “terms and conditions of employment,” in their development of a test establishing a line between the items to be bargained collectively, and the inherent rights of management. See, e.g., International Brotherhood of Teamsters Local 320 v. City of Minneapolis, 302 Minn. 410, 225 N.W.2d 254 (1975); Pennsylvania Labor Relations Board v.

State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975); Van Buren Public School District v. Wayne County Circuit Judge, 61 Mich.App. 6, 232 N.W.2d 278 (1975). Upon considering those decisions, as well as the applicable language in

Chapter 447, PERC has concluded, rightly we believe, that the stability to be encouraged in the bargaining relationship between public employer and employee requires the parties to conduct negotiations over a broad range of subjects, and that such stability might well be disrupted if one party were to be allowed to implement unilateral management decisions prior to negotiations.

We agree also with PERC’s policy determination that a public sector union — unlike a bargaining unit in the private sector — faced with an employer’s insistence upon the inclusion of a waiver clause such as that proposed below, has no effective lawful means to counter that insistence within our statutory scheme if the matter were brought to impasse. Because there is no statutory procedure afforded the public employee to bring pressure upon an employer to make concessions in collective bargaining, either through a strike or binding arbitration, PERC has been provided broad authority under

Section 447.503, as a means of allaying a significant imbalance of bargaining power in favor of the employer. The order on review is a policy decision which PERC is well suited to make, compare City of Clearwater (Fire Department) v. Lewis, 404 So.2d 1156, 1161-62 (Fla. 2d DCA 1981), and one which we find to be neither clearly erroneous nor in conflict with a provision of either the constitution or the plain intent of the statutes involved. AFFIRMED. McCORD, J., concurs. SHAW, J., dissents with opinion. . The clause,

Article XXII,

Section C, provides: Whenever the Employer exercises a right to [or] privilege contractually reserved to it or retained by it, the Employer shall not be obliged to bargain collectively with respect to the effect or impact of that exercise on individual unit members or on the unit as a group, or to postpone or delay effectuation or implementation of the management decision involved for any reason other than an express limitation contained in this Agreement. . The first alternative clause proposed the following: It is clearly and unmistakably understood by the parties hereto, and agreed, that the reservation or retention of a right, or the existence of a right, under this

Article or emanating from some other source, within or independent of this Agreement, comprehends, includes and encompasses the authority, without further bargaining, to act and implement, as well as the rights to engage in decision making. It is assumed that decisions lawfully arrived at and which are contractually proper will be so implemented, and questions as to the effects or impacts of such implementations and consequential actions shall not be subject for mandatory bargaining during the term of the Agreement.

The parties also agree, however, to meet and confer, at the request of either, although not to bargain in the legal sense, as to such impacts or effects. The second proposal stated: The right to take unilateral action refers to all rights described in

Section A, and is not qualified by or subject to any duty to bargain over the effects or impacts of actions taken or of consequential, reasonable changes in terms or conditions of employment made in consonance with such actions.