Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-358 _____________________________ ORLANDO PROFESSIONAL FIRE FIGHTERS, LOCAL 1365, IAFF, Appellant, v. CITY OF ORLANDO, SERVICE EMPLOYEES INTERNATIONAL UNION, FLORIDA PUBLIC SERVICES UNION, CHANGE TO WIN, Appellees. _____________________________ On appeal from Public Employees Relations Commission. Donna Poole, Chairwoman. April 23, 2021 PER CURIAM. The appellant, Orlando Professional Fire Fighters Local 1365, Inc., of the International Association of Fire Fighters, represents a bargaining unit of rank-and-file fire suppression employees for the City of Orlando (the City), which includes fire fighters who are certified as emergency medical technicians or paramedics. The appellant challenges a final order from the Public Employees Relations Commission (PERC) dismissing its unit clarification petition that sought to sever two newly created City classifications from a bargaining unit represented by the Service Employees International Union (SEIU). We affirm the order on appeal for the following reasons. Facts In November 2018, the City created two new classifications – civilian emergency medical technician and civilian paramedic. In June 2019, PERC granted SEIU’s petition to add the classifications to its existing bargaining unit comprised of non- supervisory, white-collar employees of the City. See Serv. Emps. Int’l Union (SEIU) Fla. Public Servs. Union (FPSU), Change to Win (CTW) v. City of Orlando, 46 FPER ¶ 2 (2019). In September 2019, the appellant filed its unit clarification petition seeking to sever the classifications from the SEIU bargaining unit and to place them in the appellant’s rank-and-file bargaining unit. The appellant asserted there was a pending grievance under the Collective Bargaining Agreement at the time of the SEIU proceedings, but the appellant had not been noticed of the SEIU proceedings. As a result, the appellant asserted PERC incorrectly granted SEIU’s petition without knowledge of all relevant facts. The appellant argued the classifications were inappropriately placed in the SEIU bargaining unit and placement was more appropriate in its bargaining unit. The appellant argued that PERC’s standard for severing classifications from a bargaining unit – that the existing unit is unworkable or inappropriate due to the existence of special or compelling circumstances – should not apply in this case where there was no established bargaining history to protect. The hearing officer recommended the petition be dismissed, and PERC adopted that recommendation in the order on appeal. Ultimately, PERC determined that its standard for severing classifications still applied to the brief bargaining relationship in this case. PERC reiterated that in placing the classifications in the SEIU unit, its duty was to define an appropriate bargaining unit, not necessarily the most appropriate unit. PERC determined the appellant failed to show the SEIU unit was not appropriate. As there were no changed circumstances that would merit a reevaluation of the appropriateness of SEIU’s bargaining unit, 2 PERC concluded the appellant’s petition was deficient and should be dismissed. This appeal followed. I. In its first issue on appeal, the appellant seeks review pursuant to section 120.68(7)(c), Florida Statutes, which requires this Court to remand a case to an agency for further proceedings when it finds, “The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” The appellant does not challenge PERC’s ability to define an appropriate bargaining unit. It simply argues it shared a greater community of interest with the classifications than SEIU, yet PERC assigned the classifications to SEIU without notice or provision for the appellant to be heard in the matter. As pointed out by the hearing officer, the two classifications did not exist within the City before 2018; therefore, the appellant could not assert a greater community of interest with them as it had no bona fide bargaining history with them to require notice or the ability to participate in the SEIU proceedings. Further, as pointed out by the hearing officer, the appellant never sought to add the classifications to its own bargaining unit at any earlier date. Any failure to notify the appellant of the SEIU proceedings had no impact on the fairness of this independent proceeding regarding the viability of the appellant’s petition. The appellant has failed to identify any material error in procedure to warrant reversal. II. In its second issue, the appellant seeks review under subsections 120.68(7)(e)3. and 4., which require remand upon a finding that an agency’s exercise of discretion was inconsistent with agency policy or prior practice or in violation of a constitutional or statutory provision. But this Court will not substitute its judgment for that of the agency on an issue of discretion. § 120.68(7)(e), Fla. Stat. The appellant argues PERC departed from prior precedent by requiring it to demonstrate the SEIU bargaining unit was unworkable or inappropriate where SEIU had no bargaining 3 history regarding the classifications. The appellant is correct that there was no bargaining history between the SEIU and the City regarding the classifications to create an additional justification to protect their relationship under the rationale of promoting stable labor relations. See Broward Cnty. CTA v. Sch. Bd. of Broward Cnty., 9 FPER ¶ 14141 (1983) (recognizing an established bargaining history adds an additional layer of consideration regarding whether a unit is inappropriate). However, the absence of bargaining history in a unit already defined as appropriate by PERC does not automatically render that unit unworkable or inappropriate. See Fla. Police Benevolent Ass’n v. Santa Rosa Cnty. Sheriff’s Dep’t, 21 FPER ¶ 26151 (1995) (“Sections 447.207(6) and 447.307, Florida Statutes, authorize the Commission to define an appropriate bargaining unit. In performing this task, the Commission is not required to define the most appropriate unit. Instead, we must define an appropriate unit. When more than one unit is appropriate, the Commission has a long-standing policy of approving the unit sought by the petitioning organization notwithstanding an employer’s desire for a more comprehensive unit that may also be appropriate.”). This was exactly the point determined below – there was no indication that the recent addition of the classifications to the SEIU unit was unworkable. Deference was appropriately afforded to PERC’s prior decision to add the classifications to the SEIU unit. PERC consistently applied its established legal standards to this case, and its decision is based on competent, substantial evidence. The appellant has failed to demonstrate any basis for reversal. The final order on appeal is AFFIRMED. ROBERTS, ROWE, and KELSEY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 Tobe Lev and Richard P. Siwica of Egan, Lev, Lindstrom & Siwica, P.A., Orlando, for Appellant. Alyssa S. Lathrop, Public Employees Relations Commission, Tallahassee; Wayne L. Helsby and Marc Sugerman of Allen Norton & Blue, Winter Park, for Appellees. 5