STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LABORER'S INTERNATIONAL UNION ) OF NORTH AMERICA, LOCAL NO. 1240 )

)

Petitioner, )

)

vs. ) CASE NO. 79-1812RX

)

PUBLIC EMPLOYEES RELATIONS )

COMMISSION, )

)

Respondent. )

)

FINAL ORDER

By Petition for Order Invalidating Administrative Rule filed 22 August 1979, Laborers' International Union of North America, Local No. 1240, Petitioner, challenges the Public Employees Relations Commission's (PERC, or Respondent) action in dismissing a scheduled representation hearing because Petitioner failed to file a prehearing statement at least seven days before the scheduled hearing. As grounds there for it is alleged that the insertion of the provision in Respondent's Prehearing Order that

"The hearing may be cancelled if a petitioner or an intervenor fails to timely file its prehearing statement.

constitutes a rule which was not promulgated in accordance with the provisions of Chapter 120, Florida Statutes, and is therefore invalid.

APPEARANCES

For Petitioner: Richard H. Frank, Esquire

Mark F. Kelly, Esquire

341 Plant Avenue Tampa, Florida 33606

For Respondent: Michael M. Switzer, Esquire

Public Employees Relations Commission 2600 Blair Stone Road, Suite 300

Tallahassee, Florida 32301

Pursuant to Stipulation with final date of 9/6/79 the parties hereto, by and through their respective counsel, stipulated to the relevant facts; waived a formal hearing and the requirement that the order be entered within thirty days; and each party presented briefs on the legal issues involved.

FINDINGS OF FACT

1. The policy being challenged provides that:

   
   

   The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement.

   
   

2. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120.

   
   

3. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on

   30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying:

   
   

   1. Those fact disputes to be presented for resolution.

   2. Any and all legal questions to be presented for resolution.

   3. The legal authority to be relied upon by each party in presenting its arguments.

   4. Those witnesses to be called at the hearing, except rebuttal witnesses.

   5. The approximate time necessary to present the party's case.

   6. Any outstanding motions or procedural questions to be resolved.

      
      

4. This Pre-Hearing Order then provided:

   
   

   The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement.

   
   

5. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission.

   
   

6. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

8. Section 120.52(14), Florida Statutes, provides in pertinent part: "Rule" means each agency statement of

   general applicability that implements,

   interprets, or prescribes law or policy . . .

   
   

9. Certain exceptions to this definition are contained in this statutory provision but these exceptions are not relevant herein.

   
   

10. It is first to be noted that the challenged provision was contained in an order issued by PERC and affected only those parties thereto. The statement, therefore, had limited applicability and not general applicability as is required by the definition of a rule. However, Petitioner contends that because this provision or policy statement is contained in all prehearing orders, that factor gives the provision general applicability.

    
    

11. If this provision, that hearings may be cancelled if prehearing statements are not filed by the parties, is a rule, then PERC could cancel any hearing if this condition was not met, whether or not the provision was contained in the prehearing order. It is doubtful that anyone would so contend. This only points up the obvious--that PERC did not consider this to be an unpublished rule. On the other hand, had PERC attempted to cancel a hearing without including a requirement for the prehearing statement in the prehearing order, and without a properly adopted rule so authorizing, Petitioner would have valid grounds for objecting.

    
    

12. Here there is no question but the objected-to policy was contained in an order applicable only to the parties thereto. Only when added to all prehearing orders does it have general applicability. In McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) the court stated at p 581:

    
    

    While the Florida APA thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.

    
    

13. It would appear that PERC was following this advice by inserting this provision in its prehearing orders. The same requirement could have been adopted as a rule. If this had been done, continued inclusion in prehearing orders would be redundant.

    
    

14. The distinction between rule and order was pointed out in Department of Commerce v. Matthews Corporation, 358 So.2d 256 (Fla. 1 DCA 1978) wherein the

    court quoted Mr. Justice Holmes in Prentiss v. Atlantic Coast Line Co., 211 US 210, 226 (1908) as follows:

    
    

    A judicial inquiry investigates, declares, enforces liabilities as they stand on

    present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions

    by making a new rule, to be applied thereafter to all or some part of those subject to its power.

    
    

15. The act here complained of, i.e. cancelling of the hearing, was done pursuant to an order affecting only the parties thereto and in accordance with the situation then existing. None was affected by this order but those parties thereto. It had no future applicability in other cases and situations unless inserted in future prehearing orders.

    
    

16. Orders are not subject to collateral attack in a rule challenge proceeding. State Dept. of Health and Rehabilitative Services v. Barr, 395 So.2d 503 (Fla. 1st DCA 1978)

    
    

17. To insure that policy-type orders issued by PERC in representation and unfair labor practice proceedings are not subject to collateral attack as rules, the legislature in Chapter 79-85, Section II, Laws of Florida, amended Section 447.207(6), Florida Statutes, to include the following provision:

    
    

    The petitioner, charging party, respondent, and any intervenors shall be the adversary parties before the commission in any adjudicatory proceeding conducted pursuant to this part. Any commission statement of general applicability that implements, interprets, or prescribes law or policy, made in the course of adjudicating a case pursuant to s 447.307 or s 447.503 shall not constitute a rule within the meaning of s. 120.52(14)

    
    

18. The proceeding in which the prehearing order was entered was brought pursuant to s 447.307. Accordingly, even if the contested language used could be found to be a policy statement having general applicability, the provision above quoted would preclude a finding that the hearing was cancelled because of an invalid rule.

From the foregoing it is concluded that the language complained of in the prehearing order filed July 30, 1979 in Case No. RC-79-036 is not a rule but an order entered pursuant to the provisions of Section 120.57, Florida Statutes.

It is therefore

ORDERED that the petition of Laborers' International Union of North America, Local No. 1240, to have the language in Prehearing Order filed 30 July 1979 in Case No. RC-79-036 declared a rule, be dismissed and the case closed.

Entered this 31st day of October, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Richard H. Frank, Esquire Mark F. Kelly, Esquire

341 Plant Avenue Tampa, Florida 33606

Michael M. Switzer, Esquire

Public Employees Relations Commission 2600 Blair Stone Pond - Suite 300 Tallahassee, Florida 32301

Docket for Case No: 79-001812RX

Orders for Case No: 79-001812RX