TRANSPORT WORKERS UNION OF AMERICA, LOCAL 291, AFL-CIO,

v.

MICHAEL CUNNINGHAM,

GORDO, J.

Transport Workers Union of America, Local 291 petitions for a writ of prohibition alleging the lower court lacks subject matter jurisdiction over Michael Cunningham’s cause of action for tortious interference with a business relationship arising from the termination of his employment with Miami-Dade County.

We conclude the claim is preempted by the Florida Public Employees Relations Commission (PERC) and grant the petition. Michael Cunningham was a Miami-Dade County bus operator and a dues-paying member of the Union.

In September 2016, after being absent from work for more than a year due to a medical condition, the County terminated Cunningham’s employment. Cunningham’s chronic condition, syncope, precluded him from safely operating a bus and performing the essential functions of his job. Under the terms of the collective bargaining agreement between the Union and the County, Cunningham was entitled to have the Union represent him in an appeal hearing.¹ Cunningham requested that the Union appeal the termination decision on his behalf. The Union scheduled an appeal hearing pursuant to Section 2-47 of the Miami-Dade County Code of Ordinances. Cunningham alleges in his complaint that the Union representative later emailed the County requesting to change his status to a resignation causing the appeal hearing to be cancelled without his knowledge or consent. Cunningham requested to have his employment temporarily reinstated and to reschedule the hearing. The County denied his request for reinstatement but agreed to allow Cunningham to reschedule the appeal hearing. Cunningham chose not to reschedule the hearing and forego his appeal.² Instead, Cunningham sued the Union for tortious interference with his advantageous business relationship with the County for causing his appeal hearing to be cancelled. The Union filed a motion to dismiss this cause of action for lack of subject matter jurisdiction asserting that PERC has exclusive jurisdiction to resolve Cunningham’s claim.

The trial court denied the motion. The Union petitions for a writ of prohibition arguing that because the claim arose out of its representation of Cunningham in a dispute with his employer and the Union’s alleged tortious interference constitutes an allegation that the Union violated its duty of fair representation, it falls within PERC’s exclusive jurisdiction. Prohibition is an appropriate remedy to prevent a court from acting in excess of its jurisdiction. English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977); Carlton Fields, P.A. v. Locascio, 81 So. 3d 611, 612 (Fla. 3d DCA 2012); Fla. Educ. Ass’n

v. Wojcicki, 930 So. 2d 812, 813 (Fla. 3d DCA 2006) (granting petition for writ of prohibition because the circuit court lacked subject matter jurisdiction over action falling within PERC’s exclusive jurisdiction).

Through the Public Employees Relations Act (PERA), the Florida Legislature created PERC and granted PERC exclusive jurisdiction to resolve disputes between public employers and public employees. Amato v. City of Miami Beach, 208 So. 3d 235, 237 (Fla. 3d DCA 2016) (citing Wojcicki, 930 So. 2d at 813-14).

PERC is empowered “to settle disputes regarding alleged unfair labor practices.” Id. (quoting § 447.503, Fla. Stat. (2009)). “Whether a claim is within PERC’s exclusive jurisdiction depends of the nature and substance of the claim, not on how the plaintiff labels the claim.” Id. (citing Gadzinski v. City of Fort Walton Beach, 2011 WL 2690403 at *3 (N.D. Fla. 2011) (applying Florida law)).

As it is well-settled that courts must look to the nature and substance of the claim, we now turn to whether the alleged conduct falls within PERC’s jurisdiction. In the instant case, Cunningham sued for tortious interference with an advantageous business relationship.³ This claim requires proof of the Union’s “intentional and unjustified interference” with Cunningham’s business relationship with the County. See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985).

In his complaint, Cunningham alleges that the Union representative interfered with his right to appeal the termination decision by arbitrarily causing his appeal hearing to be cancelled. The Union asserts that this allegation amounts to an unfair labor practice charge as Cunningham essentially argues the Union violated its duty to fairly represent him in the job termination proceeding. “The activities prohibited as being ‘unfair labor practices’ are defined in section 447.501 of the Florida Statutes.” Wojcicki, 930 So. 2d at 814 (quoting Browning v. Brody, 796 So. 2d 1191, 1192 (Fla. 5th DCA 2001)).

Section 447.501(2), provides: “A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under [Part II of Chapter 447 of the Florida Statutes].” “Case law interpreting the jurisdictional scope of the [PERA] has broadly included, as falling within PERC’s exclusive jurisdiction, those activities which ‘arguably’ constitute unfair labor practices . . .” Wojcicki, 930 So. 2d at 814 (quoting Browning, 796 So. 2d at 1192); see § 447.501, Fla. Stat. (2019).

One such charge constituting an unfair labor practice is the violation of a union’s duty of fair representation. Unions owe a duty to their members to provide

fair representation in grievance proceedings such as job terminations. See DeGrio v. Am. Fed’n of Gov’t Emps., 484 So. 2d 1, 3 (Fla. 1986).

The “duty of fair representation” is a distinctive labor law term, arising from [a] union’s responsibility to represent exclusively its individual members under a labor agreement. Under the duty of fair representation, the union has the obligation to serve the interests of all members without hostility or discrimination towards any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct. The United States Supreme Court explains, “[A] breach of the statutory duty of fair representation occurs only when a union’s conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967).

Id. at 2-3. See Kallon v. United Faculty of Fla., 15 FPER ¶ 20047 (1988). Here, Cunningham requested that the Union represent him in his appeal hearing. The Union accepted the duty to represent Cunningham fairly and avoid arbitrary conduct. The conduct complained of as tortious interference implicates the Union’s duty of fair representation as it involves an allegation that the Union acted arbitrarily in cancelling the appeal hearing without Cunningham’s authorization.

Under Florida law, the allegations in the complaint clearly, if not arguably, fall within the scope of unfair labor practices covered by PERC’s exclusive jurisdiction. Cunningham further argues that the Union in this case voluntarily undertook to represent him and because it did not have the exclusive duty to represent him under the labor agreement, the instant claim falls outside the scope of PERC’s

jurisdiction. We are unpersuaded by this argument. The Florida Supreme Court has explained “that [a] union’s duty [of fair representation] is no greater because it was voluntarily assumed than it would have been had the collective bargaining agreement required representation of [the member].” DeGrio, 484 So. 2d at 3. “To require a higher duty when the union performs a service voluntarily than when it is obligated to perform that service would make no sense at all.” Id. Cunningham was also able to hire independent counsel, but instead elected to have the Union represent him. We, therefore, conclude Cunningham’s claim is preempted by PERC and the lower court lacks subject matter jurisdiction. We grant the petition for writ of prohibition, quash the trial court order denying the motion to dismiss, and withhold actual issuance of the writ on the assumption that the trial court will follow the mandate of this court. Petition granted.