# Third District Court of Appeal

State of Florida

Opinion filed June 6, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-2213

Lower Tribunal No. 13-21908

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### Gilberto Alfonso, et al.

, Appellants,

vs.



### State of Florida ex rel. Florida Public Employees Counsel 79,

AFSCME, AFL-CIO, et al.

,

Appellees.

An appeal from the Circuit Court for Miami-Dade County, Bronwyn C.

Miller

, Judge.

Feiler & Leach, P.L. and Martin E. Leach, for appellants.

Stacy Wein; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and William

R. Radford

, for appellees.

Before SUAREZ, LAGOA, and SCALES, JJ.

SUAREZ, J.

The Appellants 1 seek to reverse an order denying their motions to intervene

in the lawsuit between the City of Hialeah [the “City”] and the AFL-CIO Union

1 The Appellants are former civil service employees of the City. They are not

parties to the underlying litigation between the Union, the PERC, and the City.[“Union”]. We affirm, as the intervention requested would have impermissibly

interjected new issues into this already protracted litigation.

In 2009, the City and the Union began negotiating a new Collective

Bargaining Agreement [“CBA”] to succeed their existing CBA set to expire on

September 30, 2009. The City was in the midst of an economic crisis and expected

a serious budgetary shortfall during the fiscal year 2009-2010. As a result, it

sought concessions from the Union. The Union resisted. After several

unsuccessful negotiating sessions with the Union, the City declared an impasse in

December 2009 and, as required, notified the Florida Public Employees Relations

Commission [“PERC”] of the impasse. The parties continued to engage in

negotiations unsuccessfully.

In May, 2010, a special magistrate selected by the parties, Thomas Terrill,

conducted an impasse hearing pursuant to the Public Employees Relations Act.

Special Magistrate Terrill concluded that the City proved by clear and convincing

evidence that the City was suffering a severe budgetary shortfall and recommended

the City be awarded economic concessions. Special Magistrate Terrill released his

Recommended Decision on June 18, 2010. On July 13, 2010, without waiting for

the impasse proceedings to conclude, the City implemented an impasse resolution

that resulted in an approximately 30% cut to its employees’ wages, in addition to a

sharp increase in the City-provided health insurance plan costs, among other

things. The record indicates that the

2City engaged in the reduction in wages and benefits from July 13, 2010 through

March 4, 2011. It is important to note that during that time period, the Appellants

were active City employees and Union members directly affected by the City’s

actions. The Union interpreted the City’s actions to be in violation of section

447.403, Florida Statutes (2010), and to be a violation of the Union’s right to

collectively bargain on its members’ behalf. As a result, the Union filed an unfair

labor practice claim with the PERC against the City for violation of section

447.501(1)(a) and (c) and alleged the City unilaterally altered the terms and

conditions of the bargaining unit’s members before the impasse procedures were

completed.

The PERC agreed with the Union, and on March 4, 2011, entered a Final

Order incorporating Special Magistrate Terrill's Recommended Decision and

found that the City engaged in an unfair labor practice in violation of sections

447.501(1)(a) and (c), and ordered the City to do the following:

 Rescind the Impasse Resolution action taken by the City Council on July 13,

2010;

 Conduct a legislative body hearing in a manner consistent with the

requirements of Section 447.403, Florida Statutes;

 Post immediately for sixty days in conspicuous locations where notices to

bargaining unit employees are customarily posted, copies of the notice to

employees which states that the City will cease the conduct set forth in

paragraph one above and will take affirmative action set forth in paragraph

two; and

 Pay the Union its reasonable attorney's fees and costs of litigation.

3The City appealed the PERC's order and this Court affirmed. City of Hialeah v.

Florida Pub. Emp’s Council 79, Am. Fed’n of State, Cty. and Mun. Emp’s, AFLCIO

, 86 So. 3d 1128 (Fla. 3d DCA 2012).

In June 2013, the Union filed a petition in the circuit court to enforce the

PERC's March 4, 2011 Final Order, inasmuch as the City had failed to reimburse

its employees for lost wages during the period from July 13, 2010 through March

4, 2011, the period for which the City was found to have engaged in the unfair

labor practice. In 2014, between the time of the City filing its Answer to the

Union’s circuit court petition, and the trial court’s July 2015 grant of partial

summary judgment on liability in the Union’s favor, the record indicates these

Appellants, non-parties to the Petition, retired from City employment.

In August 2015, at the joint request of the Union and the City, the trial court

withheld entry of a final order to allow the parties to negotiate a settlement. From

December 2015 through June 22, 2016, the trial court granted five extensions of

time to allow for ongoing negotiations. At some point during the extended

negotiation period, the City and Union agreed that only those City employees who

were active employees as of July 20, 2015 would receive compensation. Thus, the

Appellants were excluded from the settlement. Upon learning this, on July 25,

2016, the Appellants filed their first motions to intervene. 2

2 The Appellants moved to intervene because the statute of limitation for bringing

individual claims to the PERC had expired. See Amato v. City of Miami Beach

, 208 So. 3d 235, 238 (Fla. 3d DCA 2016) (noting the jurisdictional statute of

4While the Appellants’ motions to intervene were pending before the trial

court, the City and the Union filed their joint motion for court approval of the

Settlement Agreement. On August 29, 2016, before the Appellants’ motions to

intervene were heard, the trial court dismissed the case with prejudice pursuant to

the Settlement. On September 1, 2016, the Appellants filed a motion to vacate the

dismissal, contending that their motions to intervene precluded ratification of the

Settlement. The Appellants further alleged that as former City employees and

Union members they expected the same benefits as active employees under the

proposed settlement agreement, and would not have any remedy were they to be

excluded.

At the conclusion of the September 12, 2016 hearing on Appellants’ motions

to intervene, the trial court applied the intervention analysis set forth in

Morgareidge v. Howey

, 78 So. 14 (Fla. 1918), and concluded that 1) the

intervention motions were untimely filed and if granted would necessarily result in

protracted litigation; 2) as the Appellants seek to individually object to the

Settlement Agreement, the court has no jurisdiction to consider individual attacks

on the collective bargaining procedures or to order payment of accrued wages; 3)

limitation to file a PERC complaint under section 447.503(6) (b) is six months).

Once the Appellants retired in 2014 during the pendency of the enforcement

action, their interests in the enforcement action necessarily became individual

claims, as they were no longer directly represented by the Union in that action.

They would have had standing at that point to bring their own individual

enforcement claims against the City via the PERC, but failed to do so within the

applicable limitation period.

5the Appellants failed to show that the Union acted unreasonably in negotiating the

underlying dispute, given the City’s insurmountable financial crisis, and that in

balancing interests, the Union reasonably excised non-active workers from

reimbursement because those ex-employees were not subject to furlough and

layoff; 4) the Appellants did not identify or exhaust any internal Union

administrative remedies. Finally, the trial court noted that Appellants’ rights are

subordinate to the rights of the parties

– the Union and the City. Thus, to permit

the Appellants to intervene post-Final Judgment would prejudice the parties by

jeopardizing six years of difficult settlement negotiations. The trial court denied

the Appellants’ motions to intervene and motion to vacate the dismissal. This

appeal ensued.

The record indicates the Appellants retired during the pendency of the

Union’s enforcement action. At that separation, the Union was no longer required

to represent their interest in the negotiations. See e.g. Allied Chem. & Alkali

Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div.

,

404 U.S. 157, 92 S. Ct. 383, 30 L.Ed.2d 341 (1971) (holding that employers are

under no obligation to bargain with unions over benefits for already retired

workers, and the union has no duty to represent retirees with the employer,

although it may choose to do so). Upon retirement, the Appellants’ rights and

remedies became subordinate to those of the active Union members.

6The petition filed by the Union in the circuit court was filed solely to

enforce the PERC Order entered March 4, 2011. We conclude the trial court did

not abuse its discretion when it denied the motions to intervene because the

Appellants’ rationale for intervention, to challenge the Union’s decision to excise

retired employees from the Settlement Agreement, is a different matter than the

enforcement of the PERC order, which was the only issue before the trial court,

and would necessarily force a re-opening of the lengthy negotiations and painful

concessions made by both the Union and the City. More to the point, the trial

court’s jurisdiction does not extend in these circumstances to anything other than

enforcement of the PERC’s order, or to dismiss the action once the parties reached

an agreement. The trial court noted that the Appellants’ objections to the

Settlement Agreement are essentially new claims against the Union. Inasmuch as

the Appellants claim the actions of the Union to exclude them from the Settlement

Agreement were arbitrary, discriminatory, or taken in bad faith, they are proposing

new individual claims against the Union; those claims are entirely separate from

the Union’s enforcement action against the City and would impermissibly interject

these new issues into the litigation. See Nat'l Wildlife Fed'n, Inc. v. Glisson

, 531

So. 2d 996, 998 (Fla. 1st DCA 1988) (stating that the intervenor must accept the

record and pleadings as they exist in the litigation and the intervenor may not raise

any new issues).

7We conclude that the trial court’s substantive analysis pursuant to

Morgareidge and progeny supports affirmance. 3 Because that analysis is

dispositive, we do not reach the remaining issues on appeal.

Affirmed.

3 In addition to determining the interest is appropriate for intervention, the trial

court must exercise its sound discretion to determine whether to permit

intervention. Union Cent. Life Ins. Co. v. Carlisle

, 593 So. 2d 505 (Fla. 1992).

These considerations include “the derivation of the interest, any pertinent

contractual language, the size of the interest, the potential for conflicts or new

issues, and any other relevant circumstances.” Id. at 507-08.

8