SUPREME COURT of FLORIDA Case No. SC05-813 UNIVERSITY of WEST FLORIDA BOARD of TRUSTEES, Petitioner, Vs. UNITED FACULTY of FLORI

SUPREME COURT OF FLORIDA

Case No. SC05-813

UNIVERSITY OF WEST FLORIDA BOARD OF TRUSTEES,

Petitioner,

vs.

UNITED FACULTY OF FLORIDA and FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME,

Respondents.

On Petition for Discretionary Review of the Opinion of the District Court of Appeal, First District (Case No. 1D03-4689)

JURISDICTION BRIEF OF RESPONDENT UNITED FACULTY OF FLORIDA

THOMAS W. BROOKS Florida Bar No. 0191034 MEYER AND BROOKS, P.A. Post Office Box 1547 Tallahassee, Florida 32302 (850) 878-5212 - Telephone (850) 656-6750 - Facsimile

ATTORNEY FOR RESPONDENT UFF TABLE OF CONTENTS

Page No.

TABLE OF CITATIONS ...... ii

STATEMENT OF THE CASE AND OF THE FACTS ...... 1

SUMMARY OF THE ARGUMENT ...... 2

ARGUMENT

I. WHETHER THE DISTRICT COURT OPINION AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS...... 4

II. WHETHER THE DISTRICT COURT OPINION EXPRESSLY CONSTRUES A PROVISION OF THE STATE CONSTITUTION...... 5

III. WHETHER THIS COURT SHOULD EXERCISE DISCRETIONARY JURISDICTION, SHOULD SUCH JURISDICTION EXIST...... 6

CONCLUSION...... 9

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF COMPLIANCE...... 10

TABLE OF CITATIONS Page No. CASES:

Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla. 1993)...... 6

Fall River Dyeing and Finishing Corp. v. N.L.R.B., 482 U.S. 27, 107 S.Ct. 2225 (1987) ...... 3, 7

Spradley v. State, 293 So.2d 697 (Fla. 1974) ...... 2, 4

United Faculty of Florida v. Public Employees Relations Commission, 898 So.2d 96 (Fla. 1st DCA 2005)...... 6, 8

FLORIDA CONSTITUTION:

Article I, Section 6, Florida Constitution ...... 2, 5, 6, 8

Article I, Section 10, Florida Constitution...... 6

Article V, Section 3(b)(3), Florida Constitution ...... 2, 4

Article IX, Section 7, Florida Constitution...... 6

OTHER:

Padovono, Florida Appellate Practice, Section 3.8 (2005 ed.)...... 5

-ii- STATEMENT OF THE CASE AND OF THE FACTS

The United Faculty of Florida agrees with Respondent Florida Public

Employees Council 79, AFSCME, that Petitioner’s Statement of the Case and the

Facts is inadequate.1 Consequently, the UFF adopts the Statement of the Case and the Facts of AFSCME. In addition, the UFF clarifies that it did not contend in its unfair labor practice charge that the Florida Board of Governors was the public employer, and it alleged in its charge that the FSUBOT committed an unfair labor practice by refusing to continue to process grievances arising under the collective bargaining agreement with the Florida Board of Education, as successor employer to the Florida Board of Regents, as well as by discontinuing deduction of union dues. (R. 1, 23-27).

The FSUBOT has not sought review of the decision below before this Court, but the UFF will be affected by any review granted by this Court because it represents faculty and other professional employees at all of the schools in the State

University System.

1 Respondents United Faculty of Florida and Florida Public Employees Council 79, AFSCME ,will be referred to as “UFF” and “AFSCME,” respectively. The Public Employees Relations Commission will be referred to as “PERC.” The Boards of Trustees for Florida State University and the University of West Florida will be referred to as “FSUBOT” and “UWFBOT,” respectively. The record will be referred to by the letter “R” followed by the volume and page number.

-1- SUMMARY OF THE ARGUMENT

The Court does not have discretionary jurisdiction to review the decision below because it neither affects a class of constitutional officers nor directly construes a provision of the State Constitution as those requirements have been established by the decisions of this Court. The decision below does not directly and exclusively affect a class of constitutional officers as required by Spradley v.

State, 293 So.2d 697 (Fla. 1974). Rather, it affects the boards of trustees of the state universities in the same way as all other public employers. Nor does the

District Court’s sole, brief reference to Article I, Section 6 of the Florida

Constitution constitute an express construction as contemplated by Article V,

Section 3(b)(3) of the Florida Constitution. Rather, the Court merely applied constitutional principles previously established by this Court to the facts of this case, which is insufficient to establish discretionary jurisdiction.

Even if the Court had jurisdiction, it should not exercise its discretion to review the decision below, which merely required PERC to apply its long- established successorship doctrine to university boards of trustees just like all other public employers. Rather than disrupt labor relations, the decision below ensures the stabilization of labor relations during the change from a statutory to a constitutionally-based system of higher education.

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The successorship doctrine, developed in and adopted from the private sector by PERC, exists to protect the employees’ choice to be represented by a union where there are changes in the nature or structure of the employing entity.

Under this doctrine, a new employing entity assuming all or part of a predecessor’s operations is required to bargain with the union selected by its predecessor employees “[i]f it makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor.” Fall River

Dyeing and Finishing Corp. v. N.L.R.B., 482 U.S. 27, 41, 107 S.Ct. 2225, 2234

(1987). The District Court correctly found that PERC failed to properly apply this principle, which it had adopted over 20 years earlier, to the undisputed facts of this case. In so doing, it did not create any new law, but merely required that university boards of trustees such as Petitioner be treated the same as all other public employers. This decision, therefore, presents no issue that needs to be, or should be, reviewed by this Court.

-3- ARGUMENT

I. WHETHER THE DISTRICT COURT OPINION AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS

The UFF agrees with AFSCME that this case is controlled by Spradley v.

State, 293 So.2d 697, 701 (Fla. 1974), which requires that this Court has discretionary jurisdiction under Article V, Section 3(b)(3), of the Florida

Constitution where the decision below “Directly and, in some way, Exclusively affect[s] the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers.” This Court has never retreated from this decision and, as AFSCME correctly notes, there is no basis for concluding that the addition of the word “expressly” to this provision in 1980 was intended to alter this Court’s construction of this provision in this regard.

Application of the principles set forth in Spradley compels the conclusion that this Court lacks discretionary jurisdiction in this case. The District Court’s decision does not exclusively affect university boards of trustees. On the contrary, it requires that university boards of trustees be treated the same as all other public employers, many of whom are not constitutional or state officers, rather than being granted the special status resulting from PERC’s erroneous decision. Therefore, this Court lacks jurisdiction under this provision.

-4- II. WHETHER THE DISTRICT COURT OPINION EXPRESSLY CONSTRUES A PROVISION OF THE STATE CONSTITUTION

Petitioner does not allege in its brief that the District Court’s opinion expressly construes a provision of the State Constitution. In fact, it alleges only that the District Court “necessarily applied and construed” this provision, so it appears that Petitioner is not raising this argument as a separate basis for jurisdiction, but merely as a reason why this Court should exercise its discretionary review power should it otherwise have jurisdiction. As established by AFSCME in its brief, the mere application of a constitutional provision to the facts of a case does not constitute a construction of the constitutional provision involved. See,

Padovono, Florida Appellate Practice, Section 3.8 (2005 ed.). Nor is the fact that the District Court applied Article I, Section 6 in reaching its decision provide a basis for this Court’s exercise of its discretionary review powers in this case.

The District Court referred to Article I, Section 6 once in its opinion:

State government cannot, consistently with article I, section 6 of the Florida Constitution (“The right of employees. . .to bargain collectively shall not be. . .abridged.”), unilaterally terminate its obligations under a collective bargaining agreement simply by reorganizing the Executive Branch, where the employees affected perform the same work, in the same jobs, under the same supervisors, by operating the same facilities, carrying on the enterprise, providing the same service. -5-

United Faculty of Florida v. Public Employees Relations Commission, 898 So.2d

96, 98 (Fla. 1st DCA 2005). This was merely an application of the principles set forth by this Court in Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla.

1993)(collective bargaining agreements negotiated pursuant to Article I, Section 6 are entitled to the same protection from impairment under Article I, Section 10 as other contracts), to the facts of this case. As such, this reference neither qualifies as an express construction of Article I, Section 6 nor provides this Court with a compelling reason to revisit these principles in this case. On the contrary, there is no need for this Court to review the rather unremarkable proposition that Article I,

Section 6 applies to employing entities created under Article IX, Section 7 as well as other provisions of the Florida Constitution. Consequently, the Court should not exercise its jurisdiction on this basis.

III. WHETHER THIS COURT SHOULD EXERCISE DISCRETIONARY JURISDICTION, SHOULD SUCH JURISDICTION EXIST

The UFF submits that, even if this Court determines that it has jurisdiction to review the decision of the District Court in this case, it should decline to do so. As previously stated, the District Court’s opinion does not establish any new legal principles, but merely rejects PERC’s attempt to carve out a special exception to

-6- the successorship doctrine for the reorganization of the State University System.

Dyeing and Finishing Corp. v. N.L.R.B., 482 U.S. 27, 41, 107 S.Ct. 2225, 2234

(1987). The District Court correctly found that PERC failed to properly apply this principle, which it had adopted over 20 years earlier, by finding that the university boards of trustees were not successor employers under the undisputed facts.

Consequently, the District Court ordered that PERC follow its own prior decisions and find that Petitioner and the FSUBOT were successor employers obligated to maintain the terms and conditions of employment established in the expired collective bargaining agreement until the UFF and AFSCME could amend their certifications and negotiate a new one. 898 So. 2d at 99.

Although important, this decision does not present any substantial question of statutory or constitutional law that needs clarification by this Court. On the

-7- contrary, the opinion brings the State University System in line with all other public employers with respect to the obligation to preserve the collective bargaining rights of public employees when there is a reorganization or other change in the employing entity.

As previously argued, the mere fact that the District Court found Article I,

Section 6 applicable to the State University System after the constitutional reorganization simply does not raise the kind of issue requiring this Court’s review.

Nor does the mere assertion of the possibility of “disruption” of allegedly newly formed labor relationships do so. As the District Court found, the very purpose of the successorship doctrine is to promote labor harmony and stability. 898 So. 2d at 101-02. There is therefore no basis for Petitioner’s speculative assertions that implementation of this decision will do the opposite. As AFSCME notes, this decision merely requires Petitioner to follow the long-established law and maintain the terms of the expired agreement as the status quo ante until a new collective bargaining agreement is negotiated. Petitioner is not entitled to maintain any advantage it may have gained as a result of PERC’s failure to impose this requirement in the first place.

Petitioner has failed to identify any compelling reason why this Court should review the well-reasoned opinion of the court below, so review should be denied.

-8- CONCLUSION

For the reasons set forth above, Petitioner’s request for discretionary review should be denied.

Respectfully submitted,

MEYER AND BROOKS, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302-1547 (850) 878-5212 (850) 656-6750 - Facsimile

By:______THOMAS W. BROOKS Florida Bar No: 191034

ATTORNEY FOR RESPONDENT UFF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the foregoing instrument has been sent by U.S. Mail on this 14th day of June, 2005, to: Michael

Mattimore, Esquire, Robert E. Larkin, III, Esquire, and Avery McKnight, Esquire,

ALLEN, NORTON & BLUE, 906 North Monroe Street, Tallahassee, Florida 32303 - counsel for Petitioner; Jerry G. Traynham, Esquire, PATTERSON & TRAYNHAM,

-9- Post Office Box 4289, Tallahassee, Florida 32315-4289 - counsel for AFSCME;

Alma R. Gonzalez, Esquire, FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME,

3064 Highland Oaks Terrace, Tallahassee, Florida 32301 - counsel for AFSCME;

Betty J. Steffens, General Counsel, Florida State University, 211 Westcott Building,

Tallahassee, Florida 32306 - counsel for FSUBOT; Regina DeIulio, General

Counsel, University of West Florida, Building 10, 11000 University Parkway,

Pensacola, Florida 32514-5750 - counsel for UWFBOT; Richard P. Siwica,

Esquire and Tobe Lev, Esquire, EGAN, LEV & SIWICA, P.A., Post Office Box

2231, Orlando, Florida 32802-2231 - counsel for Florida AFL-CIO; and John G.

Showalter, Esquire, Public Employees Relations Commission, 4050 Esplanade

Way, Tallahassee, Florida 32399-0950.

______Thomas W. Brooks

CERTIFICATE OF COMPLIANCE WITH FONT RULE

I hereby certify that this brief uses font size Times New Roman 14 in compliance with the font requirements of Florida Rule of Appellate Procedure

9.210(a)(2).

______Thomas W. Brooks

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