We here review two appeals from the same final decree.
The final decree declared the rights of the parties as follows:
Dade County and the Transit Authority appeal from certain portions of the resultant decree, while the bus operators' union appeals from others. The facts giving rise to the issues here involved are complex and lengthy, but must of necessity be set forth.
In order to accomplish the objective of establishing and developing a unified mass transit system under County ownership, the Board of County Commissioners enacted Ordinance No. 60-23 creating the Metropolitan Dade County Transit Authority as an agency of the County government, with exclusive jurisdiction in respect to the operation and maintenance of all transit systems acquired by the County subject to policies established by the County Commission. On May 17, 1961, the County agreed to purchase the bus transportation system owned by W.D. Pawley through the purchasing of all of the capital stock of four transit companies for an agreed purchase price of $7,705,274. This purchase price was to be paid through the use of revenue bonds of the County, issued in part to Mr. Pawley, pursuant to a Trust Agreement, and payable only from net revenues derived by the County from the operation of its newly acquired transit system. Subsequent to the above agreement, a so-called Supplemental Agreement providing for deferment of payment of a part of the purchase price and an Agreement for Delivery of Possession of Transit System were entered into. By the latter agreement the County was granted the right, at its option, to take possession and become the owner of the transit system prior to the delivery of the revenue bonds.
In furtherance of its aim of securing a county-wide bus transit system, the Board of County Commissioners by Ordinance No. 61-44 authorized the issuance of Dade County Transit System Revenue Bonds in the principal amount of $9,000,000, with interest not to exceed 5 percent a year, to provide funds for payment of the purchase price, construction of a central garage and office building, and to provide initial working capital for the County's operation of the transit system. In addition, the Ordinance authorized the execution of the Trust Agreement noted above, securing the payment of the revenue bonds.
In view of these actions, the bus operators' union requested the County to (1)
By resolution of November 21, 1961, the County Commission directed the County Attorney to institute appropriate litigation in order to secure judicial determination of the questions of law and matters of controversy raised by the Union concerning County recognition of the Union as bargaining agent for all transit employees and the proposed collective bargaining agreement. Pursuant to this resolution, complaint for declaratory decree was filed. The County sets forth therein that the established policy of the State of Florida prohibits any governmental entity from entering into a collective bargaining agreement with a labor union or negotiating with a labor union regarding wages, hours, and conditions of employment. Also placed in controversy was the right of these employees to strike and the effect thereon of § 839.221, Fla. Stat., F.S.A.
By its answer, the Union contended that (1) the operation of the transit companies affects interstate commerce within the meaning of the National Labor Relations Act, and thus, the labor relations involved are subject to such Act; (2) its members are not eligible for the County civil service program; (3) under the provisions of § 839.221, Fla. Stat., F.S.A., the government acquiring the utility is empowered to bargain collectively where the former owner maintains a substantial financial or operating control; (4) the County is without standing to raise the question concerning the right to make a collective bargaining agreement; and (5) under § 839.221, Fla. Stat., F.S.A., the County cannot lawfully acquire or operate the transit system without a collective bargaining agreement.
On December 19, 1961, the Union filed with the National Labor Relations Board a charge of unfair labor practices. However, no complaint was issued by the Board which had the following to say in this regard:
This determination was appealed by the Union to the District Court of the District of Columbia where the complaint was dismissed on the ground of lack of jurisdiction over the subject matter. This decision was affirmed by the United States Court of Appeals for the District of Columbia Circuit on June 13, 1963. Division 1267, Amalgamated Ass'n of Street, Elec. Ry. and Motor Coach Employees of America v. Ordman, 320 F.2d 729 (D.C. Cir.1963).
The Union has presented two points in its appeal: (1) The trial court erred in asserting jurisdiction; and (2) The trial court erred in holding that Florida law bars the County as transit employer from bargaining collectively and immunizes it against strikes.
The County maintains that the circuit court correctly held that it had jurisdiction of the controversy, and in addition presents two points in its appeal: (1) The trial court erred in holding that Mr. Pawley maintains a substantial financial or operating control in the County transit system; and (2) The trial court erred in holding that the members of the bus operators' union who accepted employment as county employees would not be included in classified civil service and other benefits.
The Union's first point raises the question of federal pre-emption. The Union has maintained both in the state and federal courts that all jurisdiction on the question of the relationship of the Union to the County is in the federal system. Their position is buttressed by the pronouncement of the Supreme Court of Florida in Scherer & Sons, Inc. v. International Ladies' Garment Workers' Union, Fla. 1962, 142 So.2d 290. The court there reaffirmed the principle that where a situation is "arguably subject" to the prohibitions or protections of the Labor Management Relations Act, 1947 (Taft-Hartley Act, Title 29 U.S.C.A. § 141 et seq.), the National Labor Relations Board is the appropriate forum to initially determine the presence or absence of federal jurisdiction.
The chancellor held that the situation in the instant case was not "arguably subject" to the provisions of the Taft-Hartley Act. He clearly felt that the case came within the exemption provided in § 152(2) of this Act.
As has been related, the Union filed a complaint in the controversy at hand with the National Labor Relations Board. The
We turn now to the Union's second point — that the trial court erred in holding that Florida law bars the county as transit employer from bargaining collectively and immunizes it against strikes. In the final decree the chancellor made findings on this issue. They are set out under numbers 3 and 4 at the beginning of this opinion, and are repeated here for clarity:
The chancellor also filed an extensive opinion in support of his final decree. We take the liberty of quoting extensively from that portion referring to the above-quoted findings:
The Union urges that the Miami Water Works case (Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194, 165 A.L.R. 967), cited by the chancellor, is not applicable to the instant situation because the case dealt with government as employer in a venture in which there was no private investment or private control. The distinction is valid, but we do not think that it destroys the rationale of the chancellor's opinion. The chancellor correctly found that the Transit Authority was an instrumentality of the metropolitan government. The nature of the "substantial financial or operating control" found by the final decree to repose in Mr. Pawley is not such as to destroy the governmental character of the Transit Authority.
In support of a contrary conclusion, we are cited United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). It is urged that the United Mine Workers case stands for the proposition that to qualify for an exemption from the Norris-LaGuardia Act, the government must not only hold what amounts to full title and ownership of the enterprise in which it occupies the role of "employer", but in addition, must have "ultimate control." It is then urged that Florida should follow this construction in applying its own statute. We do not consider the Union's statement to be the holding of the cited case. It is clear from the facts stated that although utilizing the services of private managers, the Federal Government nevertheless had retained ultimate control. The holding, as we understand it, was that where the Government had seized actual possession of the mines and was operating them, the relationship between the Government and the workers was that of employer and employee. Thus, viewed, there is no conflict between the holding of the trial judge in the present case and that of the Supreme Court of the United States in the case cited. Nevertheless, we think it well to go a step further and point out that while there is no doubt that the record before us shows a substantial control in Mr. Pawley, still there is no evidence that he has the ultimate control over the transportation facilities involved.
Having determined that the circuit court had jurisdiction to enter the decree, and that the Union has not demonstrated error upon the court's application of the Florida law which prohibits collective bargaining by and strikes against the governmental entity, we must affirm the decree upon the appeal of Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America (No. 62-639).
The first point of the County's appeal challenges the court's finding that Mr. Pawley maintains a substantial financial or operating control in the transit system. The record contains abundant support for the chancellor's finding on this point.
The entire question of Mr. Pawley's financial and managerial control (or lack thereof) hinges upon his power to appoint and remove the trustees of the Dade County Transit System. This follows because (1) effectual managerial and financial control are in the hands of a management firm and a firm of consulting engineers, the approval of whose appointment by Mr. Pawley was both necessary and obtained; (2) prior to changing these two firms for others, approval of the trustees is required; and (3) Pawley can both remove and appoint the trustees at will. Therefore, through his power to control the trustees, Pawley has a substantial control of the transit system through the management firm and the consulting engineers.
The County's second point remains for consideration. Such point urges the trial court erred in holding that the members of the bus operators' union who accepted employment as county employees would not be included in classified civil service and other benefits. The chancellor's findings upon this issue are found in paragraph "2" of the portion of the decree quoted at the
By virtue of his finding that the defendant union and its members are excluded from the operation of § 839.221, Fla. Stat., F.S.A., the chancellor excluded the members of the union from the benefit of subsection (4) thereof. (See footnote 2 for the section in full). Subsection (4) is as follows:
The chancellor's conclusion is supported by the provision of Subsection "(3)" of § 839.221 which specifically says that where there is substantial private control the whole section shall be inapplicable.
But does the inapplicability of subsection "(4)" mean that these County employees cannot have the benefit of the County employees' classified civil service and other benefits of County employment? We do not so read subsection "(4)". The subsection directs that the employees of certain public utility systems shall be eligible for classified civil service. It does not by its terms prohibit the present union members from becoming eligible if they are by other provisions of law eligible. The Larger Counties Civil Service Law, Chapter 30255, Acts of 1955, Laws of Florida, as amended, (Article IV, Division 2 of the Code of Metropolitan Dade County), creates a civil service system in each county having a population of more than 450,000 and provides that:
Thus, all County employees in Dade County are required to be in the classified service (civil service) except those specifically excluded therefrom. No exclusion or exemption is made for personnel in positions which would be engaged in work necessarily incident to the operation of the County-owned transit system.
Moreover, the Metropolitan Dade County Transit Authority Ordinance (Ordinance No. 60-23), a local legislative enactment which the Supreme Court of Florida (in State v. Dade County, Fla. 1962, 142 So.2d 79) held the County Commission was lawfully empowered to enact, expressly provides:
Furthermore, Section 4.05 of the Home Rule Charter of Government for Dade County, Florida, provides, in part, as follows:
In addition, Chapter 122, Florida Statutes, F.S.A., provides for a compulsory retirement system for all state and county employees, and requires the county to deduct six percent from each salary check of every county employee for payment into the State and County Officers and Employees Retirement Fund. The provisions of this general law are applicable to all employees of Dade County, including those employed by the County in connection with the operation of the county-owned transit system.
Consequently, all persons who become employees of Dade County, whether they are members of the Bus Operators Union or not, immediately become compulsory participants in the state and county retirement program.
We therefore hold that paragraph numbered "(2)" of the final decree is erroneous, and upon remand the chancellor is directed to enter an order amending the final decree by striking therefrom said paragraph and entering an amended provision in accordance with this opinion. The chancellor may in his discretion take additional testimony and evidence as he finds necessary to enter an appropriate declaration of the rights of the parties upon the issue of the rights of the union members to classified civil service and other benefits.
Affirmed in part and reversed in part and remanded.
"(1) No person shall accept or hold any office, commission or employment in the service of the state, of any county or of any municipality, who:
"(a) Participates in any strike or asserts the right to strike against the state, county or any municipality; or
"(b) Is a member of an organization of government employees that asserts the right to strike against the state, county or any municipality, knowing that such organization asserts such right.
"(2) All employees who comply with the provisions of this section are assured the right and freedom of association, selforganization, and the right to join or to continue as members of any employee or labor organization which complies with this section, and shall have the right to present proposals relative to salaries and other conditions of employment through representatives of their own choosing. No such employee shall be discharged or discriminated against because of his exercise of such right, nor shall any person or group of persons, directly or indirectly, by intimidation or coercion, compel or attempt to compel any such employee to join or refrain from joining a vocational or a labor organization.
"(3) In the event that any public utility owned and operated by a private person, firm or corporation is taken over on or after May 1, 1959, by the state, a county or a municipality but in fact said person, firm or corporation maintains a substantial financial or operating control, said persons then employed or to be employed shall be excluded from the operation of this section.
"(4) Upon the acquisition of any public utility system from a private person, firm or corporation by any state, county or municipal government, then and in that event the employees of such private person, firm or corporation other than executive or management staff, shall be eligible to be included in classified civil service and other benefit provisions and system of that governmental unit."