DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2012
FLORIDA PUBLIC EMPLOYEES COUNSIL 79, AFSCME and
DEPARTMENT OF CHILDREN AND FAMILIES,
[ February 29, 2012 ]
Esteban Capo appeals the partial summary dismissal of his Amended
Unfair Labor Practice charge against his labor union. We reverse,
concluding that the Public Employees Relations Commission
(“Commission”) erred when it determined that Capo’s hybrid unfair labor
charge, based on his union’s processing of his grievance, was not timely
filed under section 447.503(6)(b), Florida Statutes.
On September 23, 2010, Capo filed an unfair labor practice charge
with the Commission against his union, Florida Public Employees
Council 79, AFSCME, AFL-CIO (the “Union”), and his former employer,
the Department of Children and Families (“DCF”).1 In the charge, Capo
alleged that DCF had unlawfully dismissed him from his position as a
child protective investigator and that the Union subsequently breached
its duty of fair representation in processing his grievance regarding that
Capo asserted the following pertinent facts: (1) on June 12, 2009, he
was dismissed from his position with DCF for reasons not constituting
The unfair labor charge against DCF was litigated separately from the charge
against the Union; the cases were assigned separate numbers before the
Commission and were the subject of separate orders. The dismissal of Capo’s
unfair labor practice charge against DCF is the subject of a separate appeal in
Case Number 4D10-5154.
“just cause”; (2) because he held a position as president of a local
chapter of the Union, the Union agreed to represent him in filing a
grievance to challenge the DCF dismissal, but then failed to timely appeal
his grievance to Step 3 of the grievance procedure, as required by the
operative collective bargaining agreement in place between the Union and
DCF; and (3) on May 3, 2010, as a result of the Union’s failure, an
arbitrator denied Capo’s grievance as barred in light of its untimely filing
without extenuating circumstances.
While the Union was handling the grievance procedure, Capo allegedly
contacted Ed Moore, a Union representative, on several occasions “to
follow-up on the grievance,” but Moore failed to do so. At some point
around August 31, 2009, Moore allegedly told Capo that he would not be
taking any further action with regard to the grievance. On August 31,
2009, Capo sent an e-mail to Moore, requesting to be informed of the
status of his grievance, but Moore did not respond. Moore was allegedly
upset with Capo because Capo had been complaining about certain
Union representatives to the Union president.
The Union represented Capo throughout the arbitration process. In
the unfair labor charge, however, Capo alleged that the Union’s failure to
timely appeal his grievance to Step 3 was not a mere oversight, but was
retaliation for his previous complaints.
On August 12, 2010, Capo was suspended from his position as the
president of a local chapter of the Union.
On September 29, 2 0 1 0 , th e Commission’s General Counsel
summarily dismissed the charge on the grounds that the claims were
either untimely filed or factually deficient. On October 13, 2010, Capo
filed an Amended Unfair Labor Practice charge.
In a n order dated October 19, 2010, the Commission’s General
Counsel determined that the events alleged to have occurred after March
21, 2010 (including Capo’s suspension as president of the local union
branch), were within the six-month limitations period that applied to the
original unfair labor practice charge of September 23, 2010, and were
factually sufficient to proceed to an evidentiary hearing. However, claims
based on events occurring prior to March 21, 2010—including the
grievance timeliness issue—were summarily dismissed as untimely
under section 447.503(6)(b), Florida Statutes, which generally provides
that a charge is untimely if it is based on an alleged unfair labor practice
which occurred more than six months prior to the filing of the charge.
Th e General Counsel concluded that the limitations period began
either on August 31, 2009 (when Capo would have known of Moore’s
alleged ineffective prosecution of the grievance) or on September 21,
2009 (the date when the grievance had been untimely filed at step three).
Thus, the General Counsel concluded that Capo had until the end of
February 2010, or at the latest until March 21, 2010, in which to file an
unfair labor practice charge against the Union, but untimely filed his
charge on September 23, 2010.
Capo appealed to the Commission the portion of the General
Counsel’s order which summarily dismissed his claims based on
allegations occurring prior to March 21, 2010. Capo argued that,
because he filed unfair labor charges against both the Union and DCF,
this matter was a “hybrid action” for which the statute of limitations did
not begin to run until the final action of May 3, 2010, when the
arbitrator dismissed his grievance on timeliness grounds.
On November 23, 2010, the Commission upheld th e General
Counsel’s partial dismissal of the Amended Unfair Labor Practice Charge.
The Commission rejected Capo’s argument that h e was justified in
waiting until the arbitration process was exhausted before filing the
unfair labor practice charge because h e initiated a “hybrid” action
against both the Union and DCF. The Commission reasoned that the
adoption of the hybrid theory would effectively result in an unauthorized
tolling of the six-month statute of limitations under section 447.503(6)(b)
for the dismissed portion of the amended charge. The Order dated
November 23, 2010, specifically stated that Capo had thirty days to
appeal the order to the appropriate district court of appeal. Capo timely
filed a notice of appeal directed to this order.2
On appeal, Capo argues primarily that he was justified in completing
the arbitration procedure before resorting to filing his hybrid unfair labor
practice charge. He thus maintains that, because his charge was a
hybrid cause of action asserting claims against both the Union and his
former employer, the six-month limitations period began to run on May
Capo later withdrew his claim concerning his suspension from union
membership on August 12, 2010. Ultimately, the Commission entered a
separate order accepting the withdrawal. However, in light of the language of
Capo’s notice of withdrawal and in light of the previous partial dismissal of
Capo’s unfair labor practice charge, Capo’s withdrawal of the unfair labor
practice charge can be construed as no more than withdrawal of the charge
related to his August 2010 suspension as union president, which was the only
unfair labor practice charge then pending.
3, 2010, when the arbitrator dismissed the grievance o n timeliness
grounds. We agree.
Although the standard of review of agency statutory interpretation has
been described as de novo, an agency is nonetheless afforded wide
discretion in the interpretation of a statute in which it is given the power
and duty to administer. See Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.
2d 417, 420 (Fla. 1st DCA 2004). “[A] reviewing court must defer to an
agency’s interpretation of a n operable statute as long as that
interpretation is consistent with legislative intent and is supported by
substantial, competent evidence.” Pub. Emps. Relations Comm'n v. Dade
County Police Benevolent Ass’n, 467 So. 2d 987, 989 (Fla. 1985). “If the
agency’s interpretation is within the range of possible and reasonable
interpretations, it is not clearly erroneous and should be affirmed.” Fla.
Dep’t of Educ. v. Cooper, 858 So. 2d 394, 396 (Fla. 1st DCA 2003).
However, judicial adherence to the agency’s view is not demanded when
it is contrary to the statute’s plain meaning. Werner v. Dep't of Ins. &
Treasurer, 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997) (citation and
internal quotation marks omitted). Where the language is clear and
unambiguous, it must be given its plain and ordinary meaning. See
Mayo Clinic Jacksonville v. Dep’t of Prof’l Regulation, Bd. of Med., 625 So.
2d 918, 919 (Fla. 1st DCA 1993).
State public employees relations law under Chapter 447 is to be
“construed with the National Labor Relations Act as a model insofar as
such construction is harmonious with the spirit and policy of Florida
legislation on the subject.” United Faculty of Fla. v. Pub. Employees Emp.
Relations Comm’n, 898 So. 2d 96, 101 (Fla. 1st DCA 2005) (citation and
internal quotation marks omitted).
Section 447.503(6)(b), Florida
Statutes, sets forth a six-month limitations period for bringing an unfair
labor practice charge. The statute provides that “[i]f the commission
determines that the alleged unfair labor practice occurred more than 6
months prior to the filing of the charge, the commission shall issue an
order dismissing the case, unless the person filing the charge was
prevented from doing so by reason of service in the Armed Forces, in
which case the 6-month period shall run from the date of the person’s
discharge.” § 447.503(6)(b), Fla. Stat.
indistinguishable from the corresponding limitations period in the
National Labor Relations Act. See NLRA § 10(b), 29 U.S.C. § 160(b) (“[N]o
complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge
is made, unless the person aggrieved thereby was prevented from filing
such charge by reason of service in the armed forces, in which event the
six-month period shall be computed from the day of his discharge.”).
In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151,
171 (1983), the Supreme Court ruled that the six-month statute of
limitations prescribed by section 10(b) of the National Labor Relations
Act was the appropriate statute of limitations for “hybrid” actions—that
is, cases involving both claims against the employer and claims against
the Union for breach of the duty of fair representation. The Court in
DelCostello did not address when the six-month period begins to run.
But the Court explained that ordinarily “a n employee is required to
attempt to exhaust any grievance or arbitration remedies provided in the
collective bargaining agreement,” and that the employee is bound by the
result of those proceedings subject only to very limited judicial review.
Id. at 163. The Court recognized the need for the hybrid cause of action,
however, because the strict rule of limited judicial review “works an
unacceptable injustice when the union representing the employee in the
grievance/arbitration procedure acts in such a discriminatory, dishonest,
arbitrary, or perfunctory fashion as to breach its d u t y of fair
representation.” Id. at 164. Here, Capo’s hybrid action presents such a
dual claim, alleging both that DCF improperly discharged him and that
the Union breached its duty to represent him in failing to properly
prosecute the grievance procedure.
Under federal case law, the six-month limitation period starts running
when the plaintiff discovers, or should have discovered, the acts
constituting the alleged violation. Howard v. Lockheed-Georgia Co., 742
F.2d 612, 614 (11th Cir. 1984). Applying this principle to hybrid suits,
the Eleventh Circuit has explained that “the timeliness of the suit must
be measured from the date on which the employee knew or should have
known of the union’s final action or the date on which the employee
knew or should have known of the employer’s final action, whichever
occurs later.” Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558, 1559
(11th Cir. 1986). Therefore, “a cause of action for breach of the duty of
fair representation accrues at the point where the grievance procedure
h a s been exhausted or otherwise breaks down to the employee’s
disadvantage.” Hayes v. Reynolds Metals Co., 769 F.2d 1520, 1522 (11th
Cir. 1985). As the Hayes court explained: “It is only at this point that
the employee is cognizant of any alleged breach of the duty owed him by
the union.” Id.
Based on similar reasoning, the Second Circuit has held that the
limitations period begins to run when the employee suffers an
unfavorable outcome in an arbitration or grievance procedure where he
was represented by the union. See Ghartey v. St. John’s Queens Hosp.,
869 F.2d 160, 163 (2d Cir. 1989) (cause of action for hybrid suit did not
accrue until unfavorable arbitrator’s decision where union did in fact
represent the employee at arbitration).
In this case, the Commission erroneously determined that Capo’s
unfair labor charge based on the Union’s processing of his grievance was
untimely filed. In hybrid actions, like this one, federal courts have
uniformly interpreted the six-month limitations period in the NLRA as
beginning to run when the grievance or arbitration procedure has been
exhausted or otherwise broken down to the employee’s disadvantage.
Here, the Union continued to represent Capo throughout the arbitration
procedure. Thus, the six-month limitation period began to run when the
arbitrator denied Capo’s grievance as untimely.
A hybrid charge
challenging the adequacy of union representation, if filed before the
arbitration was complete, would have been inefficient and premature.
See Childs v. Pennsylvania Fed’n Bhd. of Maint. Way Emps., 831 F.2d
429, 434-35 (3d Cir. 1987).
While the Commission was concerned that accepting Capo’s theory
would “effectively result in a n unauthorized tolling of the six-month
statute of limitations,” the Commission’s reasoning was unsound. It
appears that the Commission determined that the statute of limitations
is tolled only when the charging party was prevented from filing a charge
by reason of service in the Armed Forces. However, the federal statutory
limitations period in the NLRA includes the same language concerning
Armed Forces, yet the federal courts have held that the six-month
limitations period does not begin to run in a hybrid action until the
employee suffers an unfavorable outcome in an arbitration or grievance
procedure where he was represented by the union. More important, the
issue in this case concerns when the claim accrued, not whether the
statute of limitations should be tolled. The Commission overlooked wellsettled federal case law interpreting the NLRA, which is the statutory
model for Florida’s limitations period.
In sum, the six-month limitation period began to run on May 3, 2010,
which was when the arbitrator denied Capo’s grievance as untimely.
Therefore, Capo’s hybrid unfair labor charge dated September 23, 2010,
was timely filed. We reverse the partial dismissal of Capo’s unfair labor
practice charge and remand for further proceedings.
Reversed and Remanded for further proceedings.
POLEN AND STEVENSON, JJ., concur.
Appeal from the State of Florida, Public Employees Relations
Commission; L.T. Case No. CB-2010-061.
Mark J. Berkowitz of Mark J. Berkowitz, P.A., Fort Lauderdale, for
Andrew Weltman, Staff Attorney a n d Alma R. Gonzalez, Special
Counsel, for Appellee-Florida Public Employees Council 79 AFSCME.
Not final until disposition of timely filed motion for rehearing.