STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNITED FACULTY OF PALM BEACH ) JR. COLLEGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2104

) PERC CASE NO. 8HCA-754-4158 DISTRICT BOARD OF TRUSTEES OF )

PALM BEACH JR. COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on March 2, 1976 at Tallahassee, Florida.

APPEARANCES

Rodney W. Smith, Esquire, Staff Attorney, PERC, Representing General Counsel, PERC, Petitioner

Sidney L. Matthew, Esquire, 208 West Pensacola Street, Tallahassee, Florida, representing United Faculty of Palm Beach Jr. College, Charging Party

Jesse Hogg, Esquire, of HOGG, ALLEN, RICE, & NORTON, P.A.,

225 Alcazar Avenue, Coral Cables, Florida 33134, representing District Board of Trustees of Palm Beach Jr. College, Respondent.

By Administrative Complaint filed February 11, 1976, the Acting General Counsel, Public Employees Relations Commission, (PERC) alleges that Respondent, Trustees of the Palm Beach Jr. College, has engaged in an unfair labor practice in violation of 447.501(1)(a) F.S. in refusing to grant dues deduction to the United Faculty of Palm Beach Jr. College, the Charging Party, or to enter into negotiations solely for the purpose of discussing dues deductions.

At the hearing in the above styled cause the Respondent moved to dismiss the complaint on several grounds, all generally related to the proposition that the complaint issued by the General Counsel for PERC was not authorized by Chapter 447 F.S. and was therefore invalid; particularly since the general counsel was an agent and employee of the Commission, which placed the Commission in the posture of being both accuser and judge. Since the procedure adopted was that provided by the rules of the Commission and the instant hearing was not a rules challenge pursuant to 120.56 F.S. but an adjudicatory hearing pursuant to 120.57(1) F.S., the motions were denied.

Thereafter the parties acknowledged that the Charging Party has been duly certified as the exclusive bargaining agent for the employed organization and stipulated into evidence Exhibits 1 - 4 containing: (1) A request by the union for a meeting to discuss dues deductions; (2) A response to that request denying a meeting for that sole purpose; (3) A request for the college to advise if the author of Exhibit 2 spoke for the college and; (4) A reply to Exhibit 3 that the college does refuse to grant dues check-off immediately pending a discussion of details. A ruling on the admissibility of Exhibit 5 was deferred at the hearing. Exhibit 5 is a letter addressed to the Acting General Counsel, PERC, by the Attorney for the Charging Party advising the General Counsel that in accordance with PERC's suggestion that the Charging Party offer to pay the college the reasonable cost of dues deduction, the union would do so in order to facilitate the investigation of the charges. Exhibit 5 is herewith admitted into evidence.

At this posture of the proceeding the parties agreed that there was no dispute as to the facts of the complaint or the charges and the sole issue was one of law, viz: Does the Public Employer have a duty to bargain with the representative of the duly certified employee organization on the sole issue of dues deduction in the absence of any collective bargaining agreement between the parties? The corollary to this question is whether the certified employee organization has the right to dues deduction in the absence of a collective bargaining agreement. All parties submitted briefs on this issue and they have been fully considered by the hearing officer.

CONCLUSIONS OF LAW

1. The provision of the Florida Public Employees Relations Act pertinent to dues deduction is contained in 447.303 F.S. which provides:

   
   

   "Any employee organization which has been certified as a bargaining agent shall, upon request, have its dues and uniform assessments deducted and collected by the employer from the salaries of those employees who authorize the deduction of said dues and assessments.

   However, such authorization is revokable at the employee's will upon 30 days' written notice to the employer and employee organization. Reasonable cost to the employer of said deductions shall be a proper subject of collective bargaining. Such deductions shall be in force during the term of the collective bargaining agreement. The public employer is expressly prohibited from any involvement in the collection of fines, penalty, or special assessments."

   
   

2. No Florida cases on the specific question here involved or in another jurisdiction with the same statutory provisions have been cited by any party hereto. The question therefore appears to be one of first impression in this state.

   
   

3. In applying and construing the above quoted statute the primary guide is to determine the purpose of the legislation and the legislative intent - "The polestar by which the courts must be guided." Scarberough v. Newsome, 7.So.2d

   321 (1942); Smith v. Ryan 39 So.2d 281 (Fla. 1949); Singleton v. Larson, 46

   So.2d 186 (Fla. 1950); Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905 (Fla. 1969). Where legislative intent as evidenced by statute is plain and unambiguous there is no necessity for any construction or any interpretation of the statute, and courts need only give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973).

   
   

4. Another basic principle of statutory construction applicable here is that the courts are obligated to give meaning to all words chosen by the legislature in enacting a statute. Atlantic Coastline Railroad Co. v. Boyd, 102 So.2d 709 (Fla. 1958).

   
   

5. The initial sentence of 4470.03 F.S. says such bargaining agent as the Charging Party herein shall, upon request, have its dues deducted and collected by the employer from the salaries of those employees so authorizing the deduction. Standing alone this would give the union the right, and place upon the employer the correlative duty, to dues deduction. 1/ However, other words of this same statutory provision must also be considered and given their plain meaning. The first of these is that reasonable costs to the employer of such deduction shall be a proper subject of collective bargaining. Beading this provision of the statute in conjunction with the initial sentence, and giving meaning to both provisions, could lead to the conclusion that before the employer has the duty to withhold dues the cost of such deductions should be resolved by collective bargaining. This interpretation standing alone would lead to the position apparently taken by PERC's general counsel and adopted by the union when the latter offered to pay to the employer the reasonable costs of dues deduction.

   
   

6. The third provision of the statute that must be considered in determining the legislative intent regarding dues deductions is the sentence which provides such deductions shall be in force during the term of the collective bargaining agreement. The literal meaning of those words could lead to the conclusion that such duty on the part of the employer exists only during the term of the collective bargaining agreement. If this were the intent of the legislature, then without a collective bargaining agreement there is no duty on the part of the employer to withhold dues.

   
   

7. If all three of these statutory provisions are considered together, and a basic rule of statutory construction is that all provisions of the statute must be so considered, the employee organization has the right to have membership dues deducted subject to two conditions. The first condition is that the expense of the dues deductions shall be a proper subject of collective bargaining and the second condition is that such check-off of dues shall be effective during the term of the collective bargaining agreement. Without going beyond the words of the statute it clearly appears that the employee organization has no right to dues deduction independent of a collective bargaining agreement.

   
   

8. Inasmuch as PERC's general counsel contends that 447.303 F.S. gives the employee organization the right to dues deduction independent of a collective bargaining agreement, the history of dues deductions and other jurisdictions' statutes will be briefly considered. Initially it must be recognized that dues deduction is a very important matter from the union's standpoint. As noted by the Charging Party in its brief:

   
   

   The value of dues check-off to the union is significant especially in right-to-work states such as Florida. In a right-to-work state the

   check-off of the dues is the only lawful security device available to unions. Thus, under the original National Labor Relations Act (NLRA) the collection of dues had been held not a matter for collective bargaining but was mandated by law as an obligation upon the employer (citation omitted)."

   
   

9. The passage of the Taft-Hartley Act made dues check-off a proper subject for collective bargaining although the general counsel in its brief states the NLRA does not contain a provision on the subject of dues deduction.

   
   

10. The security aspect of dues check-off was noted in footnote 5 of Respondent's brief as follows:

    
    

    "It might appear at first blush, that check-off is not directly related to union

    security, since it only requires and insures the continuing payment of dues and assessments by employees who have already become members. However, the practical effect of check-off, perhaps due to employee inertia or the creation of a sense of union identification, as tending to make a union secure, has long been recognized, as has the principal that withholding check-off tends to prevent contract agreement (see H. K. Porter Co. v.

    NLRB, 1970, 397 U.S 99, 73 LRRM 2561; H. K.

    Porter Co., 1965, 153 NLRB 1370, 1372, 59 LRRM

    1462)."

    
    

11. The general counsel acknowledges that a literal reading of the sentence in the statute that "Such deduction shall be enforced during the term of the collective bargaining agreement" clearly implies that dues deductions may not exist independent of a collective bargaining agreement. He then recognizes the conflict between this condition and the first sentence of the statute that the duly certified employee organization shall, upon request, have its dues deducted; but contends that the obvious intent of the legislature was as expressed in the first sentence of 447.303 F.S. For such authority Johnson v. State, 27 So.2d 276 (Fla. 1946) is cited. This case involved an appeal from the criminal conviction in which appellant contended a search warrant was invalid. In discussing the construction of the pertinent statute therein involved the court said at p. 282:

    
    

    "It is the contention of the appellant that the second paragraph of this section is of no force and effect because it is in conflict with the first paragraph of the section. We cannot follow this reasoning because it is a well settled rule of construction that the last expression of the legislative will is the law in cases of conflicting provisions in the same statute or in different statutes the last in point of time or order prevails. See 59 CJ 999 and authorities there cited. There are exceptions to this rule, as pointed out in Sams v. King, 18 Fla. 557; Hall v. State, 39

    Fla. 637, 23 So. 119; State ex rel. v.

    Bessinger, 155 Fla. 730, 21 So.2d 243. In each of these cases it was held in effect that where the last sentence in one section of a statute is plainly inconsistent with the preceding sentences of the same section and preceding sections which conform to the legislature's obvious policy and intent such last sentence, if operative at all, must be so construed as to give it effect consistent with such other sections and part of sections and with the policy they indicate."

    
    

12. Since the legislature provided two exceptions following the grant of the right of employee organizations to dues deductions it is apparent that it intended effect be given to both exceptions. The contention of the general counsel that the second exception refers only to "negotiable" items and that dues deduction is "non-negotiable" is inconsistent with basic principles of statutory construction and not in consonance with the intent of the legislature. This intent is expressed in 447.201 F.S. which provides in part:

    
    

    "It is the intent of the legislature that nothing herein shall be construed either to encourage or discourage organization of public employees."

    
    

13. There is little legislative history available in this matter. Historically the National Relations Labor Act made no provisions for dues deductions by employers and initially did not even require an employer to negotiate for a dues check-off arrangement (Hughes Tool Co. v. NLRB, CA 5, 1945,

    147 F2d 69, 15 LRR, 852). The Taft-Hartley amendments changed that situation to the extent of making dues check-off a proper subject of collective bargaining. (Reed and Prince Mfg. Co., 1951, 96 NLRB 850, 28 LRRM 1608). No right to dues check-off exists under the present NLRA independent of a collective bargaining agreement.

    
    

14. Some 20-odd states have enacted Public Employees Relations Acts. In those that refer to dues deductions some (Hawaii, Montana, Indiana, and Washington) provide for dues deduction independent of a collective bargaining agreement. For example, the Montana statute provides:

    
    

    "Upon written authorization of any public employee within a bargaining unit, the public employer shall deduct from the pay of the public employee the monthly amount of dues as certified by the secretary of the exclusive representative and shall deliver the dues to the treasurer of the exclusive representative."

    
    

15. In those states where the collective bargaining agreement is mentioned in a statutory section dealing with dues deduction, the obligation to make such deduction is co-extensive with the duration of the collective bargaining agreement.

    
    

    "Employers and employee organizations are authorized to negotiate provisions in a collective bargaining agreement calling for

    the payroll deduction of employee organization dues and initiation fees and for payroll deduction of the service fee described in subsection (a) of this section." (Sec. 11(b) Conn. State Employees Bargaining Act.)

    
    

    "Municipal employers and employee organizations are authorized to negotiate provisions in a collective bargaining agreement calling for the payroll deduction of

    employee organization dues and initiation fees." (Sec. 7-477 Conn. Municipal Employees

    Relations Act.)

    
    

    "The scope of mandatory bargaining is limited to:

    
    

    1. Deduction of dues for the recognized employee organization." (Nevada Local Government Employee-Management Relations Act, Sec. 208.150(2)(1).

       
       

       "Membership dues and deductions and maintenance of membership are proper subjects of bargaining. . ." (Penn. Public Employees Relations Act, Sec. 705).

       
       

       "The Commonwealth or any other employer shall require as a condition of employment during the life of the collective bargaining agreement so providing, the payment on and after the 30th day following the beginning of such employment, or the effective date of such agreement, whichever is later, of a service fee to the employee organization. . . (Mass. Public Employees Relations Act, Sec. 12).

       
       

16. While many section of Florida PERC are similar to those of New York's Taylor Act, Section 208 of the latter Act provides:

    
    

    "A Public Employer shall extend to an employee organization certified or recognized pursuant to this article the following rights: . . .

    (b) To membership dues deduction, upon presentation of dues deduction cards signed by individual employees. . ."

    
    

17. The clear wording of that statute makes dues check-off mandatory upon the employer independent of a collective bargaining agreement and the New York PERC has so held.

    
    

18. The similarity beteen the New York PERC and the Florida PERC contended by the general counsel is not apparent to the undersigned as the New York PERC contains no reference to a collective bargaining agreement in connection with dues deductions as does the Florida PERC.

19. From the foregoing it is concluded that 447.303 F.S. does not impose upon the public employer the duty to effect dues deductions for those employees so requesting, and remitting same to the certified bargaining representative absent a collective bargaining agreement. The issue of continuing dues check- off following the expiration of a collective bargaining agreement and while negotiations for a new collective bargaining agreement continue was not considered and conclusions reached herein are not deemed persuasive on that issue. It is therefore,

RECOMMENDED that the complaint be dismissed.

DONE and ENTERED this 27th day of April, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ In speaking of rights and duties in this context it should be clear for every right of which we speak there is a corresponding duty to grant that right. If the employee organization has the right to have dues withheld from its members' pay so authorizing the deduction the public employer has the duty to deduct those dues and remit them to the employee organization. If there is no right, there is no duty. One does not exist without the other.

Docket for Case No: 75-002104

Orders for Case No: 75-002104