author: ERVIN, Judge.

text:
    PASCO COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Pasco County Classroom Teachers Association, Respondents.
    No. CC-38.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1977.
    Rehearing Denied Jan. 9, 1978.

      Joe A. McClain of McClain, Hobby & Greenfelder, Dade City, for petitioner; John Edward Alley and Daniel H. Kunkel, of Alley & Alley, Miami, of counsel.
    Jack L. McLean, Jr. and Austin F. Reed, for respondent Florida Public Emp. Relations Commission; Sidney L. Matthew, Tallahassee, for respondent Pasco County Classroom Teachers Ass’n.
   ERVIN, Judge.

The Pasco County School Board has filed its petition to review an order of the Florida Public Employees Relations Commission (PERC) finding it committed certain unfair labor practices in violation of Section 447.-501(l)(a), (b) and (c) of the Public Employees Relations Act (PERA). PERC has also filed its petition to enforce the order entered.

The School Board has presented the following issues to us for our consideration: 1. The General Counsel of PERC should not be permitted to prosecute unfair labor practice charges. 2. The final order is formulated in violation of the procedural protections incorporated in the Administrative Procedure Act to the detriment of the School Board. 3. The School Board did not act against certain named discriminatees in retaliation for their union activity. 4. The School Board did not violate its duty to bargain with the PCTA. 5. PERC improperly relied on the special master’s report to support findings of fact. 6. PERC ordered reinstatement with back pay contrary to the hearing officer’s recommendation that a separate hearing be held to determine the appropriate amount to be awarded.

The School Board entered into a collective bargaining agreement with the Pasco Classroom Teacher’s Association (PCTA) effective September, 1974 through June 30, 1975. Following certification of PCTA by PERC, negotiations were conducted between the parties from April 24, 1975 until July 28,1975, and when no fruitful bargaining could be obtained, an impasse was declared on July 28, 1975. Pursuant to Section 447.403, Florida Statutes (1975), a special master was appointed by PERC to reconcile the differences between the parties. Later, complaints were filed in separate cases before PERC charging the Board with the following unfair labor practices: The School Board on March 24, 1975, as a result of non-tenured teacher Ronald Eckstein’s union activity, refused to grant Eckstein a continuing contract for the school year 1975-76, and to reappoint him as head of the social studies department at Hudson High School. Two other complaints charged the Board with discriminatorily refusing to rehire probationary instructors Sharyn Disabato and Fred Rydzik, because of their union activities, for the 1975-76 school year. A fourth complaint charged that following the certification of PCTA by PERC, on April 17, 1975, as the collective bargaining agent for instructional personnel employed by the Board, and during collective bargaining negotiations, on June 3, 1975, the Board unilaterally, and without notice to PCTA, reduced salaries for the 1975-76 school year for all instructional personnel, froze a step increase which had been negotiated under the 1974-75 contract and reduced all teacher salary supplements.

A hearing was held before a DOAH hearing examiner on the four complaints. At the conclusion of the testimony an order was entered recommending the charges be sustained. PERC, after reviewing the record, concluded there was “ample evidence” to support the complaints and entered a final order directing (1) that Disabato and Rydzik be reinstated to their former or equivalent positions and be made whole for any loss of earnings; (2) that Eckstein be appointed to continuing contract, be reappointed head of the social studies department, and be made whole for any loss of earnings; (3) that the Board restore all employee salaries to the level existing before the Board unilaterally decreased wages during bargaining, pay interest on the amounts withheld and restore two planning days which the Board eliminated from the 1975-76 school year; and (4) that the Board cease and desist from interfering with and restraining or coercing employees from any of the rights guaranteed them under PERA.

I. WHETHER THE GENERAL COUNSEL OF PERC SHOULD BE PERMITTED TO PROSECUTE UNFAIR LABOR PRACTICE CHARGES.

The Board argues it has been prejudiced by the General Counsel’s prosecution of the unfair labor practices, contending there is no specific statutory authority under PERA permitting PERC to prosecute such charges. The Board is correct that there is no such explicit statutory authority. Section 447.503(1), Florida Statutes (1975), authorizes the Commission, or its agent, to conduct a preliminary investigation to determine whether there is substantial evidence indicating a prima facie violation of an applicable unfair labor practice provision. If it is determined there is such evidence, PERC or its agent shall cause to be served upon the person charged with the violation a copy of the charges and a notice of the hearing before the Commission. The statute, however, is silent as to the grant of any specific authority to prosecute such charges following the investigation and the filing of the complaint, although Fla.Admin.Code Rule 8H-4.08 permits the General Counsel of PERC to “assume part or all of the burden of presenting the evidence in support of the allegations in the complaint.”

The record does not reveal the Board at the administrative level ever asserted any objection it was prejudiced by the General Counsel’s prosecution of the charges. It did not challenge Rule 8H-4.08 as having been adopted without any validly delegated legislative authority. See Section 120.56, Florida Statutes (1975). The Board has failed to demonstrate it was prejudiced by the General Counsel’s prosecutorial position. A combination of investigative, prosecutorial and adjudicative functions in one body does not per se create an unconstitutional risk of bias and one so claiming must show prejudice. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). We therefore decline to express an opinion as to whether there was valid delegation of authority to PERC to prosecute unfair labor charges in the absence of either a timely challenge to the Rule or an objection at some stage in the administrative proceedings.

Nor is it a point which we may consider for the first time on review as fundamental error. It is not fundamental error. Section 120.68(2) provides that review proceedings from administrative action “shall be conducted in accordance with the Florida Appellate Rules.” We are authorized by Fla.App. Rule 3.7 i to consider any jurisdictional or fundamental error which is apparent in the record, even though objection to it was not made at a lower level. A fundamental error exists if its correction can be deemed essential to the object and purpose of the proper administration of justice. Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948). We do not consider the record reveals the asserted error so fundamental as to be essential to the proper administration of justice.

II. WHETHER THE FINAL ORDER IS FORMULATED IN VIOLATION OF THE PROCEDURAL PROTECTIONS INCORPORATED IN THE ADMINISTRATIVE PROCEDURE ACT TO THE DETRIMENT OF THE SCHOOL BOARD.

The Board argues the final order of PERC so intermingles findings of fact and conclusions of law that it is impossible to determine whether the order based its holdings on particular fact situations or on interpretations of the law. We must disagree. While the final order of the Commission is not a model of perfection, nevertheless it was not violative of Section 120.59(1) requiring that findings of fact and conclusions of law be separately stated. PERC’s order specifically adopted the findings of the hearing officer. The hearing officer submitted a detailed report and recommended order separately stating his findings and recommendations. Section 120.-57(l)(b)9 allows the agency to adopt the recommended order as the agency’s final order or to reject or modify the conclusions of law. It specifically prohibits the agency’s rejection or modification of the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order that the findings of fact were not based upon competent substantial evidence.

We are not confronted with the situation involved in Venetian Shores Home & Prop. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3rd DCA 1976); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977), and McDonald v. Dept, of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), where the reviewing agency simply rejected the hearing officer’s findings of fact out of hand without stating with particularity its reasons for so doing.

The action of an agency, following a full hearing before a hearing examiner, is in the nature of a procedural review. Venetian Shores Home & Prop. Own. v. Ruza-kawski, supra. The findings of fact reported by a hearing officer to the reviewing agency become binding on the agency in the absence of an explicit determination that the findings were not based upon competent substantial evidence or that they did not comport with the essential requirements of law. Bolinger v. Division of Retir., State Dept. of Admin., 335 So.2d 568 (Fla. 1st DCA 1976).

III. WHETHER THE SCHOOL BOARD ACTED AGAINST THE THREE ALLEGED DISCRIMINATEES IN RETALIATION FOR THEIR UNION ACTIVITY.

The Board attacks that portion of PERC’s order finding that the decisions not to rehire or to grant tenure to the discrimi-natees were made in retaliation for their union activity, complaining it is not based upon the whole record and that, certain statutory standards for not renewing probationary contracts were misapplied by PERC. This issue brings into consideration the interplay between the applicable provisions of PERA, the APA and the National Labor Relations Act (NLRA).

Since this is a case of first impression, it is helpful to look to cases from foreign jurisdictions involving the interpretation of similar provisions in statutes of other states or federal statutes. State ex rel. Feldman v. Kelly, 76 So.2d 798 (Fla.1954). If a Florida statute is patterned after a federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929); State ex rel. Packard v. Cook, 108 Fla. 157, 146 So. 223 (1933).

PERC concluded that the Board’s decisions not to rehire Disabato and Rydzik or to promote Eckstein were violations of Sections 447.501(l)(a) and (b). Section 447.-501(l)(b) reflects the strong influence of Section 8(a)(3) of the NLRA (61 Stat. 140 (1947), 29 U.S.C. § 158(a)(3) (1970)), providing in part that it is an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”

PERC’s order concluding that discrimination occurred was buttressed upon highly conflicting evidence: The testimony of the discriminatees and their witnesses that the Board’s decisions affecting their employment were due to their union activity, and the Board’s testimony the decisions were made as a result of the teachers’ deficient performance. Section 120.68(10) directs that we not substitute our judgment for that of the agency as to the weight of evidence on any disputed finding of fact. We may only set aside such action or remand the case to the agency if we find the agency’s order depends upon any finding of fact which is not supported by competent substantial evidence in the record. It is not appropriate for us to resolve conflicts in the testimony adduced before an administrative tribunal. Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2nd DCA 1962); nor is it our province to displace an agency’s choice between two conflicting views even if we would be justified in deciding the issue differently were it before us in the first instance. NLRB v. Big Three Industries, Inc., 497 F.2d 43 (5th Cir. 1974). Expert tribunals are entitled to the greatest deference in recognition of their special competence in dealing with labor problems. In many areas their evaluation of the competing interests of employer-employee should unquestionably be given conclusive effect in determining the application of the pertinent sections of the Act. American Ship Building v. Labor Board, 380 U.S. 300, 316, 85 S.Ct. 955, 13 L.Ed.2d 855 (1964). Such deference must be qualified by the reservation that courts should not “slip into . . . judicial inertia which results in the unauthorized assumption by an agency of major policy decisions . . .” American Ship Bldg. v. Labor Board, 380 U.S. at 318, 85 S.Ct. at 967.

It is not our intention to review conflicting evidence so long as such evidence has a competent and substantial foundation. Agency considerations of claims based upon unfair labor practices necessarily involve considerations different from those in other agency proceedings. Our primary inquiry will be to determine whether, this being a case of first impression, the agency has erroneously interpreted a provision of law. Section 120.68(9). In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:

(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.

(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In considering the employer’s explanation, the examiner should attempt to strike an equitable balance between the rights of an employer whose duty, as here, is to promote the efficiency of public services through its public employees, and the rights of a nontenured public school teacher to be secure in his employment, free from discrimination due to his union activity.

(3) PERC, when reviewing the hearing officer’s recommendations, shall evaluate them pursuant to the procedure set forth by Section 120.57(l)(b)9, requiring generally that before PERC reject or modify the hearing officer’s findings of fact that it first determine from a review of the entire record the findings were not based on competent substantial evidence.

The testimony at the hearing pertaining to the alleged discrimination by the Board of the three non-tenured school teachers was basically the same. During the spring of the 1974-75 school year all three discrim-inatees were nominated officers of their union. At the conclusion of the same school year, the Board chose not to rehire Disabato and Rydzik, and declined to grant Eckstein tenure following three years’ service by him. All three had served as building representatives for PCTA and in such capacity presented other teachers’ grievances to their principals. Nevertheless all three principals were careful to testify that their decisions not to renew or promote were based not upon union activity but rather upon the teachers’ poor performance.

The evidence relating to their effectiveness as school teachers was remarkably similar. Prior to their involvement with the union all had been evaluated by their employers as effective (Rydzik), outstanding (Disabato) or superior (Eckstein) during the 1973-74 school year. As their union activities increased, their instructional performance the following school year, according to their principals, decreased. For example Disabato’s principal testified that during the 1974-75 school year, her tone and mannerisms toward him became increasingly antagonistic and hostile, and she developed a reputation as being overly harsh with the students. During her evaluation in February 1975, her principal advised her she needed to improve rapport with her professional peers and improve cooperation with the administration. After considering the cumulative problems he had encountered, he concluded it was necessary not to renew her probationary contract, believing he could hire as competent a teacher who would not create such conflicts in school.

Rydzik’s principal gave testimony somewhat similar as to Rydzik’s performance. On February 21, 1975, his principal evaluated him as middle effective and needing improvement in two categories, daily planning and bathroom duties. He concluded he could hire another teacher who would more competently perform the responsibilities assigned; hence he decided not to renew Rydzik’s contract. An additional reason he gave was that it was necessary to reduce the instructional staff by three at the junior high school where Rydzik taught due to a reduction in the student body. Other evidence however reflected that six instructors left school at the end of the school year, yet Rydzik was not rehired. When confronted with such facts, the principal responded he would not rehire Rydzik anyway.

Eckstein’s performance also declined during the 1974-75 school year, notwithstanding his evaluation the preceding year as a superior teacher. In March, 1975, Eckstein was rated both outstanding and effective by his principal except in the area of objectivity on theoretical or controversial topics, where he was rated as needing improvement. Four teachers at the hearing related incidents in which Eckstein both harassed other instructional personnel and used abusive language in their presence.

In their behalf, the three discriminatees presented testimony by members of their peer group pertaining to their professional competency. For example, during the year 1973-74, Disabato was selected by her fellow teachers as teacher of the year. Contrary to her principal’s testimony that she had difficulty in cooperating with other instructors, various teachers stated they had no knowledge of any problems she had in getting along with peers. Several teachers testified they considered her an excellent teacher. Similar testimony was offered on behalf of Rydzik. Certain teachers testified they considered Rydzik an excellent teacher whom the students admired and that his plan book was outstanding.

Ronald Eckstein, like Disabato, was nominated by his fellow teachers as the teacher of the year during the school year 1973-74 at his high school. Several teachers also said they considered Eckstein an excellent teacher, and following the decision not to grant him continuing contract, many teachers were afraid to associate freely with PCTA members, resulting in the union experiencing membership problems at Eck-stein’s high school.

A finding of an unfair labor practice here necessarily depended upon circumstantial evidence. The presence of an anti-union motivation by an employer is a factual matter which the NLRB may resolve upon circumstantial evidence from the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Singer Company v. NLRB, 429 F.2d 172 (8th Cir. 1970); Ridgely Manufacturing Co. v. NLRB, 166 U.S. App.D.C. 232, 510 F.2d 185 (1975). And in the absence of a showing of such motivation, an employer may discharge or suspend an employee for a good reason, a bad reason, or no reason at all. NLRB v. O. A. Fuller, 374 F.2d 197 (5th Cir. 1967).

All three discriminatees were evaluated effective employees by their principals prior to their union activities. After their activities in the union became involved, their evaluations contained marked deficiencies. The timing of the decision by the employer in connection with the employee’s union activity is a proper consideration to a determination whether an unfair labor practice was committed. A discharge of an employee, followed closely on the heels of an employer’s display of anti-union animus, supports a finding of an unfair labor practice. St. Joseph Hospital v. Pennsylvania Labor Relations Board, 16 Pa. Cmwlth. 533, 330 A.2d 561 (1974). While the evidence may have been questionable as to whether the Board’s agents were aware the union had nominated the discriminatees for union office prior to the decisions not to renew or to promote, nevertheless there was ample evidence they had knowledge that all three teachers were active in the union during the 1974-75 school year.

The Board additionally complains that the hearing officer’s findings and PERC’s order sustaining them were not based upon competent substantial evidence since they depended in part upon opinion and hearsay evidence. In all three cases opinion testimony was offered by the three discriminatees’ peer group, other teachers, that they considered the discriminatees outstanding teachers. Other testimony was to the effect that as a result of the actions taken against Rydzik and Eckstein, they were fearful of becoming involved with the union and had talked to other teachers who had expressed similar fears. Insofar as the agency’s findings depended upon opinion testimony, we have previously stated that a reviewing court should give less weight to the hearing officer’s findings in determining the substantiality of such evidence. McDonald v. Department of Banking and Finance, supra, 346 So.2d at 579. Yet the employers expressed their opinions that each of the discriminatees did not measure up to the mark expected, contributing to the decision not to rehire or promote. The hearing officer and PERC properly considered the challenged testimony and appropriately resolved the issue against the Board.

The Board’s complaint that PERC’s order was supported by hearsay deserves special attention. For example, the Board objects to the finding in PERC’s order that “the record further reveals that other annual contract teachers are reluctant and unwilling to be publicly involved in the union, serve as building representatives, or merely become union members, as a result of the demotion and failure to extend tenure to Eckstein.” This portion of the order was supported in part by the testimony of teachers Jerry Morriss and Kenneth Senn-holtz that other teachers informed them they felt inhibited from joining the union due to Eckstein’s failure to be granted tenure, and were even fearful of talking to union leaders. It is questionable whether the opinions relayed by non-testifying witnesses to Morriss and Sennholtz met the competent and substantial test necessary to support such findings.

If the entire evidence presented were only hearsay, then clearly we would be required to set aside agency action not supported by competent and substantial evidence. But as previously indicated there was other competent evidence, primarily circumstantial, before the hearing officer. Moreover other teachers directly testified as to their own apprehensions of retaliation. Section 120.58(l)(a) allows the admission of hearsay at agency hearings when used for the purpose of supplementing or explaining other evidence but precludes its admission if solely used to support a finding unless it would be admissible over objection at civil actions. Cf. Poirier v. Division of Health, State of Florida, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977). Thus if hearsay is corroborated by otherwise competent substantial evidence, it is admissible.

We have determined that competent and substantial evidence supported the conclusions of both the hearing examiner and PERC that a substantial or motivating factor leading to the decisions not to rehire or to promote was due to the employees’ union activity. Once the hearing officer made a finding that the greater weight of the evidence showed the employer’s action was motivated substantially or partially by the employee’s protected activity, the burden was placed upon the employer to show by a preponderance of evidence that notwithstanding such factors, the decisions would have been made anyway. Mt Healthy City Board of Ed. v. Doyle, supra.

The Board argues that under existing law it is not required to give any reason for failing to renew an expired public teacher’s probationary contract, stating that the purpose of Section 231.26, Florida Statutes (1975), requiring the probationer be placed on annual contract the first three years of his employment, is to permit the school board to select those personnel whom it believes to be most qualified to retain permanently.

In considering the concomitant interest of the district school boards to promote the efficiency of its public services it performs through its employees, delegated to the boards by constitutional grant, Art. IX, Section 4, PERC should give due regard to the pertinent statutes enacted to achieve such ends. A complete reference to all such statutes would be exhaustive, but special attention should be directed to Section 231.-29(2) authorizing the superintendent, “[f]or the purpose of improving the quality of instructional . . services in the public schools of the state,” to “establish procedures for assessing the performance of duties and responsibilities of all [such] . personnel employed in his district . .”, and to the statutory procedure outlined in Section 231.36 pertaining to the conditions necessary to achieve a grant of continuing contract.

The Board should be allowed a certain degree of latitude to improve the quality of instructional services within the public schools. “There can be no doubt of the right of the state to investigate the competence and fitness of those whom it hires to teach in its schools, . . Shelton v. Tucker, 364 U.S. 479, 485, 81 S.Ct. 247, 250, 5 L.Ed.2d 231 (1960), nor that the Board has a vital concern in obtaining qualified personnel to shape “the attitude of young minds towards the society in which they live.” Adler v. Board of Education of City of New York, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517 (1952). “That the school authorities have the right and the duty to screen the . . . teachers, and employees as to their fitness to maintain the integrity of the schools as part of an ordered society cannot be doubted.” Ibid, at 493, 72 S.Ct. at 385.

Counterbalanced against the Board’s authorized duty to promote the efficiency of its public services is the right of even a non-tenured school teacher not to be discriminated against because of union activity. “[T]he theory that public employment, which may be denied altogether, may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, 345 F.2d 236, 239 (2nd Cir. 1965). “Interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those . . who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain.” Shelton v. Tucker, supra, at 486, 81 S.Ct. at 251. And where protected activity is involved, a public employer may not arbitrarily refuse to renew even a probationary teacher’s contract. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). “. . . [W]ith the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.” Dade County Classroom Teachers Ass’n. v. Ryan, supra, 225 So.2d at 905.

The hearing examiner’s recommended order did not take into consideration the above factors. It relied instead, in reaching the conclusion the Board had discriminated against the three employees because of their union activity, upon traditional concepts of discharge in the labor relations field, stating:

“It is common knowledge in the labor area that an employer can discharge an employee for any reason or no reason at all, however, he cannot discharge an employee for engaging in any activities protected by rights guaranteed to such employee by statute. Thus, for example an employer is free to discharge an employee when he engages in protected activity and there is just cause and the just cause is the sole reason which prompts the dismissal. ... An employee’s participation in union activities does not insulate him from discharge ‘for cause’ however, when such employee engages in such activities, and when that activity is well known by the employer, care must be taken by the employer to be sure that he does not run afoul of the labor laws.”

The hearing examiner committed the same error as the District Court in Doyle by failing to determine whether the decision affecting the discriminatees would have been reached despite the presence of a non-permissible reason. The following observations by the Court in Doyle have particular relevancy here:

“A rule of causation which focuses solely on whether protected conduct played a part, ‘substantial’ or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision — even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.
This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord ‘tenure.’ The long term consequences of an award of tenure are of great moment both to the employee and to the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitutionally protected conduct in deciding not to rehire Doyle, from attempting to prove to a trier of fact that quite apart from such conduct Doyle’s record was such that he would not have been rehired in any event.” 429 U.S. at 285-286, 97 S.Ct. at 575.

Finding there has been an erroneous interpretation of a provision of law, Section 120.-68(1), we think the interests of the parties would be best served by vacating that portion of the order sustaining the hearing examiner’s recommendation an unfair labor practice occurred as it affected the discrimi-natees, and by remanding to the hearing officer for an appropriate determination of the question.

IV. WHETHER THE BOARD VIOLATED ITS DUTY TO BARGAIN WITH THE PCTA.

PERC’s order sustaining the charge the Board violated Section 447.501(l)(c) by committing a unilateral act during bargaining negotiations requires that we again compare the pertinent provisions of PERA with the NLRA. Section 447.501(l)(c) prohibits public employers from “refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.” Moreover Section 447.309(1) requires, after an employee organization has been certified, the respective bargaining agents for the employer and employee “shall bargain collectively in the determination of the wages, hours and terms and conditions of employment of the public employees within the bargaining unit.”

The corresponding provisions of the NLRA, 29 U.S.C. § 158(a)(5) (1970), states:

“(a) It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of his employees,. . .."

Additionally 29 U.S.C. § 158(d) (1970) makes it the “mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, . . . Under Section 8(d), the payment of wages is a statutory subject of collective bargaining, requiring matters of salary increases and bonus awards be submitted to the mediatory influence of collective bargaining. Fibre-board Paper Products Corp. v. NLRB, 379 U.S. 203, 214, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). However Section 8(d), while demanding the parties bargain collectively, “does not compel either party to agree to a proposal or require the making of a concession . . . ,” The NLRB’s power of compulsion is limited to directing the parties to bargain about subjects properly within the scope of collective bargaining. National Licorice Co. v. NLRB, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1939). Merely meeting together or manifesting a willingness to talk does not discharge the duty to bargain. Tex Tan Welhausen Co. v. NLRB, 419 F.2d 1265, 1268 (5th Cir. 1969), cert. den. 402 U.S. 973, 91 S.Ct. 1663, 29 L.Ed.2d 138 (1971). Moreover sophisticated pretense in the form of apparent bargaining, sometimes referred to as shadow boxing or surface bargaining, will not satisfy a party’s duty under the Act. NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960).

The statutory duty to bargain prohibits an employer from imposing unilateral changes in working conditions during the pendency of negotiations. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); NLRB v. Hendel Mfg. Co., 523 F.2d 133 (2nd Cir. 1975); Great Southern Trucking Co. v. NLRB, 127 F.2d 180 (4th Cir. 1942), cert. denied 317 U.S. 652, 63 S.Ct. 48, 87 L.Ed. 524. A unilateral action by an employer affecting changes in wages and working conditions has generally been held justified only after the parties have bargained to impasse. NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), cert. den. 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420. When the Board instituted its cuts on June 3, 1975, bargaining was still in progress. Impasse was not declared until June 28, 1975.

The testimony at the hearing pertaining to the unilateral action charge showed that after negotiations were instituted effective April 24, 1975, PCTA on that date submitted its first proposal for a $12,000.00 salary base, which represented an increase of approximately 50% over the 1974-75 contract. The Board did not offer a counter-proposal until May 6, 1975, which consisted of a blank page instead of specific salary proposals due to financial uncertainty of the school budget for the 1975-76 year. The negotiator for the Board, Ronald For-guson, asserted his failure to submit specific salary proposals was owing to the Board’s lack of financial information sufficient to submit a counterproposal. Nevertheless, he stated the parties to the contract continued negotiating on such items until the information was available, although he admitted no specific salary amount was proposed by the Board before June 3, 1975.

On May 6, 1975, Superintendent Weight-man recommended to the Board a 1975-76 salary schedule freezing salaries at the same level as the preceding school year, which the Board adopted. Later on June 3, 1975, at a School Board meeting and not during a bargaining session, the Board, following the recommendations of the superintendent, adopted a 1975-76 salary schedule for all Board employees, including a 5% cut in salaries, a 5% cut in supplements, a freeze on increments and a change in the school calendar which eliminated pre-school planning days. This change was made without prior notification to PCTA’s bargaining representative.

The Board presented evidence showing that its actions were necessary due to incomplete financial information. The Board’s budget analyst Marilyn Hall said she was fearful of a budget deficit for the coming fiscal year since the budget, previously prepared, had omitted to allocate funds for workman’s compensation insurance or for increased liability and fire insurance premiums. Her fears were compounded by the prior budget’s anticipation of federal revenues for the food services program which did not materialize, and by the State Department of Education’s reallocation of over $1,000,000.00 from the operating section of the budget to the capital outlay section. Believing there was a real danger of a deficit occurring in the 1975-76 budget unless steps were immediately taken, Ms. Hall relayed this information to the superintendent, thus leading to the 5% budget cuts on June 3, 1975.

The Board offered testimony it would normally have continued negotiations on this matter, however due to the provisions in the forms provided to the Board by the Department of Education then in effect, if tenured teachers were not given at least 30 days notice of a proposed reduction in salary, their salaries for the succeeding school year could be no less than the amount paid the preceding year. Since the school year began on July 3, and believing that a deficit would occur in the coming school fiscal year, the Board felt it was required to make the cuts no later than June 3.

Notwithstanding the action taken by the Board on June 3, 1975, both the Board and the PCTA continued to bargain over salaries until July 3, 1975 when the School Board offered a 3% reduction from the preceding school year budget as a temporary salary schedule for the 1975-76 school year pending resolution of the budget crisis.

The Board’s argument it was necessary to effect the cuts without prior notification to PCTA’s bargaining representative because of the Department of Education’s regulation requiring it either to increase or decrease salaries within 30 days before the beginning of the school year, otherwise tenured teachers would by operation of the law be reemployed at the same salary rate for the preceding year, is not convincing. The Board’s negotiator, Ronald Forguson, testified that even before PCTA’s proposed pay package was submitted to him on April 24, 1975, he had known since February the Board had a freeze on spending. After PCTA presented its pay increase proposals to the Board, no offer or counterproposal was submitted by it through its negotiator before May 6, 1975, when the Board, upon the recommendation of Superintendent Weightman, met and adopted the same salary schedule for teachers as had been in effect the previous year. Between May 6, and June 3, 1975, the Board’s response to PCTA’s proposals was only a blank page for salaries. The Board never afforded notice to PCTA’s bargaining representative of its intention to reduce salaries by 5% before the June 3rd meeting. When the proposal was recommended to the Board by the superintendent, the bargaining represénta-five, Larry Smith, voiced his objection to the reductions claiming they were an illegal unilateral action. During the hearing on the unfair labor practice charges, the superintendent unambiguously testified that to his knowledge none of the items, salaries, increments, supplements and planning days had been discussed with PCTA prior to the June 3rd school board meeting;

True, the Board has argued it was required by the Department of Education regulations, 30 days before the beginning of the school year, either to reduce salaries or if it took no action, to pay to all tenured teachers the next fiscal year a sum no less than the amount paid the preceding year. Those regulations had been in effect for some time prior to the June 3rd meeting and the Board was not suddenly confronted with the prospect that its operating budget for the next succeeding year might be less than the preceding year.

The Board was statutorily mandated by Sections 447.309(1) and 447.501(l)(c) to bargain collectively with the union’s negotiator in good faith. The Board’s expressed reason for not bargaining on the ground of its uncertain fiscal future cannot be excused. It was mandated by the Act to offer reasonable counterproposals. It was not required to acquiesce to the union’s demands. Cf. NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952).

Compare NLRB v. Big Three Industries, Inc., supra, where the court upheld the NLRB’s order that the employer had refused to bargain in good faith over the objection of the employer that during bargaining negotiations, the President of the United States instituted the wage and price freeze of August 15, 1971. The Court observed that the freeze did not prevent the parties from bargaining or contracting for wage increases which might go into effect subsequent to the freeze.

If the Board was fearful that its revenue might be less the following school year than the 1974-75 year, it could have made a counterproposal consistent with the information it possessed. The Board finally made a counter offer on July 3,1975, offering a 3% reduction as a temporary salary schedule. The Board could have easily made a tentative counterproposal before it initiated the cuts on June 3, 1975, in the very midst of bargaining. Its asserted argument that it acted in good faith is weakened by the subsequent actions of July 3, 1975, and July 28, 1975, when it offered a 3% cut as its best and final offer.

The Fifth Circuit Court of Appeals rejected a similar claim by an employer, an oil drilling company, that it was necessary to institute a unilateral action involving wage increases, holidays, vacations, etc., because of the urgency of the circumstances surrounding it. NLRB v. Hondo Drilling Co., N.S.L., 525 F.2d 864 (5th Cir. 1976). The justification given by the company’s negotiator was that because of the unusually dangerous aspects of a particular job at a certain rig, an incentive was needed to employ a sufficient number of men who would remain on the job until the well was completed. The Court held the employer’s asserted good faith belief that the action was necessitated by the emergency nature of the situation did not excuse its failure to afford the union the opportunity to negotiate the matter. The Court concluded that “[wjhile negotiations need not be exhausted to the point of impasse, some discussion is required prior to changing a condition of employment . . . 525 F.2d at 867.

The Board’s reliance on NLRB v. Minute Maid Corporation, 283 F.2d 705 (5th Cir. 1960), is without merit. There the Court held the employer was not guilty of a failure to bargain collectively. Minute Maid is a processor and grower of oranges. During negotiations with the union, Minute Maid experienced the worst freeze since the beginning of the frozen concentrate industry. The Fifth Circuit excused Minute Maid from bargaining on economic matters when, at that time, the employer had no knowledge of the extent of the freeze damage and did not know it could use frozen fruit. There are obvious distinctions between the problems which confronted Minute Maid and those which confronted the School Board. Minute Maid’s future income was dependent upon the harvesting of the endangered citrus crop. The School Board on the other hand was required to bargain on wages for the 1975-76 school year — a discrete event. Ms. Hall, the Board’s financial analyst, admitted the 5% pay cut the Board adopted on June 3, 1975, for the coming school year had no effect on the balancing of the 1974-75 school budget.

The Board’s reliance on NLRB v. Bradley Washfountain Co., 192 F.2d 144 (7th Cir. 1951) is also not persuasive. The wage changes made there by the employer were made only after notice and negotiation with the union. An employer who in good faith negotiates with a union and makes offers to the union which the union rejects may then unilaterally initiate its proposals as the terms and conditions of employment without committing an unfair labor practice. NLRB v. Burns International Secur. Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972).

Independent of any consideration whether substantial proof was presented that the Board’s unilateral action was a refusal to bargain in good faith, we sustain PERC’s conclusion that a subjective showing of bad faith was not necessary to find a violation of Section 447.501(1)(c), requiring that the parties bargain collectively. In National Labor Relations Board v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), the employer, while negotiating with the union, had unilaterally granted merit pay increases, changed sick leave policy, and instituted a new system of automatic pay increases. The Court agreed with the NLRB that such unilateral action resulted in a frustration of collective bargaining as much as did a flat refusal to bargain. It concluded that a subjective showing of bad faith is not necessary in order to find the employer had violated Section 8(a)(5) making it an unfair labor practice to refuse to bargain collectively.

We approve the following language from Katz and believe the principles there stated should apply with equal force to an unfair labor practice charge alleging a unilateral action in violation of Section 447.501(l)(c):

“The duty ‘to bargain collectively’ enjoined by § 8(a)(5) is defined by § 8(d) as the duty to ‘meet . . . and confer in good faith with respect to wages, hours, and other terms and conditions of employment.’ Clearly, the duty' thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in. fact — ‘to meet . and confer’ — about any of the mandatory subjects. A refusal to negotiate in fact as to any subject which is within § 8(d), and about which the union seeks to negotiate, violates § 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. We hold that an employer’s unilateral change in conditions of employment under negotiation is similarly a violation of § 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal.” 369 U.S. 743, 82 S.Ct. at 1111. (Footnotes omitted.) (Emphasis in original.)

V. THE RELIANCE BY PERC UPON THE SPECIAL MASTER’S REPORT IN DETERMINING THE AMOUNT OF THE AWARD.

The Board complains it was prejudiced by PERC’s reliance upon the special master’s report, which was not introduced into evidence before the DOAH hearing officer, to support its conclusion the School Board did not have a sufficient bona fide financial emergency to justify its unilateral action. The special master was appointed pursuant to Section 447.03 to resolve an impasse resulting from the breakdown in bargaining between the parties. The report was not filed with the Commission until November 6, 1975, after all evidence had been submitted to the hearing officer. PERC should have relied only upon such evidence, and not evidence presented at a collateral proceeding. “Findings of fact [by the hearing officer] shall be based exclusively on ‘the evidence of record and on matters officially recognized.” Section 120.57(l)(b)7. Nevertheless, as we have previously observed, there was competent substantial evidence presented at the hearing which supported the hearing officer’s determination that the Board had committed an unfair labor practice by refusing to bargain collectively as a result of its unilateral action freezing wages. The special master’s report was merely cumulative to the evidence previously admitted before the hearing officer.

While we fail to find the Board was prejudiced by PERC’s consideration of such cumulative evidence, the Commission should in the future scrupulously refrain from relying upon any evidence which is not appropriately before the hearing officer when formulating its final order.

VI. THE BACK PAY AWARD

Although we have remanded that portion of PERC’s order sustaining the finding of an unfair labor practice as to the three discriminatees, we feel it appropriate to comment upon the Board’s claim that PERC erred in not directing a hearing as to the amount of the back pay award, should on remand it be determined that the employer failed to meet its burden showing that the decisions not to rehire or promote would have been made anyway.

The hearing officer recommended the allegations in the complaint be sustained based upon the record before him. He suggested that since the record was not developed as to the award of back pay, reinstatement rights and other data which would be relevant prior to the issuance of an order requiring the Board to make the discrimi-natees whole, the issue be determined at a later hearing to be held as expeditiously as possible after PERC made its final determination. PERC elected not to direct another hearing on such issues, but instead, without taking further testimony, ordered not. only that Disabato and Rydzik be reinstated and Eckstein granted tenure but ordered them made whole for any loss of pay they may have suffered.

PERC’s back pay award to discriminatees Rydzik and Disabato directed that they be made whole for any loss of earnings by paying them a sum equal to the amounts each would normally have received from the date of the expiration of their contracts until their reinstatement, “less any net earnings for the interim, with interest at six percent . . . per annum..” (Emphasis added.) The order by implication left the matter of other earnings received by the affected discriminatees during the interim to be resolved by the parties informally. No doubt PERC was aware that in the priyate sector, the NLRB is required to mitigate the employer’s damages by deducting from the discriminated employees’ lost earnings, net earnings from other employment during the back pay period. NLRB v. Guliett Gin Go., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953). We believe that if a disputed issue of fact should arise as to the amount of earnings an employee may have received during the interim, PERC will devise an appropriate procedure to resolve any such possible controversy.

The petition for review is granted in part and denied in part. PERC’s petition for enforcement of its order is granted as modified.

MILLS, Acting C. J. and SMITH, J., concur.

      . Unlike PERA, the National Labor Relations Act, 29 U.S.C. § 153(d) (1970), grants specific authority to the General Counsel of the National Labor Relations Board to investigate charges, issue complaints and to prosecute such complaints. Moreover he serves not at the pleasure of the NLRB, but is appointed by the President for a term of four years.

      . Making it an unfair labor practice for a public employer to interfere with, restrain or coerce “public employees in the exercise of any rights guaranteed them . . .

      . Prohibiting a public employer from “[e]ncouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure or other conditions of employment.”

      . No proof of anti-union motivation is needed under the NLRA if the discriminatory conduct is found to be inherently destructive of important employee rights. NLRB v. Great Dane Trailers, 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). “Some conduct is . . so ‘inherently destructive of employee interests’ that it may be deemed proscribed without need for proof of an underlying improper motive.” Ibid, at 33, 87 S.Ct. at 1797. “Such conduct bears its own indicia of intent. . . ” NLRB v. Erie Resistor Corp., 373 U.S. 221, 231, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). “On the other hand, when the ‘resulting harm to employee rights is . . . comparatively slight, and a substantial and legitimate business end is served, the employers’ conduct is prima facie lawful,’ and an affirmative showing of improper motivation must be made.” NLRB v. Great Dane Trailers, supra, at 34, 87 S.Ct. at 1797. In either situation, however, once it has been proved the employer engaged in discriminatory conduct to some extent, “the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” Id. at 34, 87 S.Ct. at 1798.

      . Preponderance of the evidence is the usual burden upon the charging party at agency proceedings; however depending upon the statute under which the claimant seeks relief, a greater burden may be imposed. Health & R. S. v. Career Serv. Comm,, 289 So.2d 412, 415 (Fla. 4th DCA 1974).

      . Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

      . Mt. Healthy City Board of Ed. v. Doyle, supra. We also have this day adopted the above “but for” or “moving cause” test in Columbia County Board of Public Instruction v. PERC, 353 So.2d 127 (Fla. 1st DCA 1977). Cf. NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (1970).

      . Cf. Mt. Healthy City Board of Ed. v. Doyle, supra. The Doyle opinion referred to Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), in which the following balancing test was applied to the area of protected speech:
      “It cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
      The test was stated in similar fashion by the Florida Supreme Court:
      “A delicate balance must be struck in order that there be no denial of the guaranteed right of public employees to bargain collectively with public employers without, however, in any way trenching upon the prohibition against the public employees striking either directly or indirectly or using coercive or intimidating tactics in the collective bargaining process.” Dade County Classroom Teacher’s Asso'n., Inc. v, Ryan, 225 So.2d 903, 906 (Fla,1969).

        The United States Supreme Court has also applied such a test in determining whether unfair labor practices occurred under the NLRA on different occasions, e. g., NLRB v. Erie Resistor Corp., supra; NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). In Labor Board v. Erie Resistor Corp., supra, the Court stated at pages 228-229, 83 S.Ct. at pages 1145, 1146:
      “As is not uncommon in human experience, such situations present a complex of motives and preferring one motive to another is in reality the far more delicate task, . of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer’s conduct.”

      . While Section 447.309(1) contains no similar statement, Section 447.203(14), defining collective bargaining, states in part, “neither party shall be compelled to agree to a proposal or be required to make a concession . . . . ”

      . The Pasco County School District, unlike other county school districts in the state, has adopted a 15-45 day year round class schedule whereby classes begin July 3, rather than in September and end on June 30.

      . In fact however the anticipated deficit did not occur due to emergency measures taken by the Board, including the refinancing of school bus purchases and obtaining a large cash loan to provide cash for operating expenses. In fact there was approximately $4,000,000.00 more in funds available to the district in 1975-76 than the preceding year, owing in part to the transference of certain monies from the State Department of Education to the school district in February, 1976. There is no proof however from which it can be inferred that the Board could, at the time it reduced wages, have anticipated the surplus.

      . The NLRB statements of procedure provide that after the NLRB’s order has been issued, directing the payment of back pay, or after enforcement of such order has been made by the court, if informal efforts to dispose of the "matter prove unsuccessful, a notice of hearing will be provided the parties, which may or may not include back pay specifications. The respondent is allowed to file an answer setting forth its defense. The issues will then be resolved at the hearing. 29 C.F.R. § 101.16 (1976). We note that PERC has formulated no similar rule.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    COLUMBIA COUNTY BOARD OF PUBLIC INSTRUCTION, LAKE CITY, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Columbia County Transportation and Maintenance Works Association, Respondents.
    No. FF-106.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1977.
    Rehearing Denied Dec. 22, 1977.

      Terry R. McDavid, of McDavid & Murphy, Lake City, for petitioner.
    Thomas W. Brooks, Tallahassee, for respondent Public Emp. Relations Commission.
   SMITH, Judge.

The Columbia County Board of Public Instruction petitions for review of an order of the Public Employees Relations Commission finding the Board committed an unfair labor practice, in violation of Section 447.-501(l)(a) and (b), Florida Statutes (1975), by not rehiring Jack W. Adams because of Adams’ union activity. PERC ordered Adams reinstated with full back pay.

Adams was a nontenured refrigeration mechanic. At the end of the 1974-75 school year, Adams’ supervisor and the superintendent recommended that the Board eliminate Adams’ position and not rehire him in the succeeding year. The Board accepted that recommendation. The hearing officer and PERC found on substantial evidence that the supervisor’s and superintendent’s recommendation was motivated by their disapproval of Adams’ organizational activities among school employees. The Board urges that Adams’ poor attitude and unsatisfactory work justified their acceptance of the superintendent’s recommendation. The hearing officer and PERC exonerated the Board itself of anti-union motivation:

“[N]o bad faith can be ascribed to the members of the school board by their support of the superintendent’s recommendation against rehire of Adams

We are here concerned with the extent of the Board’s vicarious responsibility, in an unfair labor practice proceeding before PERC, for its agent’s motive to discourage membership in employee organizations “by discrimination in regard to hiring, tenure, or other conditions of employment,” Section 447.501(l)(b); and we must determine the circumstances in which employee discharge may be justified on a legitimate ground although anti-union motive was a factor leading to the discharge decision.

Lacking guidance from Florida court decisions construing controlling provisions of the relatively new Public Employees Relations Act, we have examined decisions applying Section 8(a)(1) and (3) of the National Labor Relations Act, from which the relevant provisions of Section 447.501 were drawn. The NLRA does not deprive an employer of the right to discharge union members or organizers for legitimate reasons. NLRB v. Audio Industries, Inc., 313 F.2d 858 (7th Cir. 1963); NLRB v. Universal Camera Corp., 190 F.2d 429 (2d Cir. 1951). See also Local 357, International Brotherhood of Teamsters, etc. v. NLRB, 365 U.S. 667, 677-85, 81 S.Ct. 835, 840-44, 6 L.Ed.2d 11, 19-23 (1961) (Harlan, J., concurring). But if the employee’s union activity is the reason for the employer’s action, discharge is an unfair labor practice even if legitimate grounds for discharge exist. NLRB v. Central Power and Light Co., 425 F.2d 1318 (5th Cir. 1970); NLRB v. Princeton Inn Co., 424 F.2d 264 (3d Cir. 1970); NLRB v. Jamestown Sterling Corp., 211 F.2d 725 (2d Cir. 1954). The Supreme Court has held “the ‘real motive’ of the employer in an alleged § 8(a)(3) violation is decisive.” NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 985-86, 13 L.Ed.2d 839, 846 (1965); Radio Officers’ Union v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, 41 A.L.R.2d 621 (1954); Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937). Because an employer may act with mixed motives, federal law recognizes a “but for” or “moving cause” test for determining the employer’s “real motive”:

“The test is whether the business reason or the protected union activity is the moving cause behind the discharge. NLRB v. Security Plating Company, 356 F.2d 725, 728 (9th Cir. 1966). See also Kellwood Company, Ottenheimer Bros. Mfg. Div. v. NLRB, 411 F.2d 493, 498 (8th Cir. 1969). In other words, would this employee have been discharged but for his union activity? Southwest Latex Corp. v. NLRB, 426 F.2d 50, 54-55 (5th Cir. 1970).” NLRB v. Ayer Lar Sanatorium, 436 F.2d 45, 50 (9th Cir. 1970) (emphasis in original).

See also NLRB v. Milco, Inc., 388 F.2d 133, 138 (2d Cir. 1968); Erie Strayer Company, 213 NLRB 344 (1974); P. G. Berland Paint City, Inc., 199 NLRB 927 (1972); and NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971) (requiring proof that “the employer’s dominant motive was not a proper business one, but union animus.”; See a discussion of the federal cases in Escamilla v. Marshburn Bros., 48 Cal. App.3d 472, 482-84, 121 Cal.Rptr. 891, 896-97 (1975).

The purpose of PERA’s Section 447.501(l)(a) and (b), like that of the corresponding NLRA provisions, is to ensure that public employees engaged in protected collective bargaining activities are treated no differently from other public employees. The federal administrative and judicial test for the presence of prohibited employer activity seems entirely appropriate to the Florida statutory purpose. We hold that an employer subject to PERA commits an unfair labor practice, remediable by PERC, when its motive for discharging an employee is to punish for or discourage organizational activity and the employee would be retained but for his union activity. When there is proof before PERC that an impermissible motive was one of two or more factors in the employer’s decision to terminate, the burden necessarily falls on the employer to adduce evidence that it would have reached the same decision without consideration of the protected activity. The United States Supreme Court recently adopted a similar rule for assessing the significance of an employee’s First Amendment activity in a discharge decision. Mount Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

Although the hearing officer did not specifically find that the Board would have retained Adams but for his organizational activities, the record supports no other conclusion. The hearing officer’s recommended order stated: “Although both Taylor [Adams’ supervisor] and [superintendent] Phillips disclaimed the fact that Adams’ organizational activities had any influence on their failure to nominate and recommend him for continual hire, the facts justify a contrary view.” The hearing officer found “the factors of attitude and performance of duty were not the effective cause of [Adams’] dismissal”:

“Adams alone of the nine maintenance employees who received preliminary letters indicating that they would not be rehired was, in fact, the only employee who was not retained. In sum, the evidence supports the proposition that the failure to rehire Adams was primarily the result of his activities with the employee organization . . . .”

The Board’s apparent good faith in acting on the superintendent’s tainted recommendation does not isolate the superintendent’s impermissible motive from its causative effect. The record indicates that the Board routinely accepted the superintendent’s hiring recommendations and that the superintendent routinely accepted, without investigation, the recommendations of principals and supervisors. In these circumstances a terminated employee need not show that the Board itself acted with motives proscribed by PERA. It is sufficient proof that the recommendation of a subordinate official, so motivated, effectively produced the discharge.

We have considered the Board’s contention that PERC improperly increased the recommended penalty and find it to be without merit. However, PERC will take action appropriate to restore or allow the employer credit for unemployment compensation benefits received by Adams before his reinstatement. The petition for review is DENIED. PERC’s petition for enforcement of its order is GRANTED.

MILLS, Acting C. J., and ERVIN, J., concur.

      . Section 447.501 provides in part:
      “(1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining or coercing public employees in the exercise of any rights guaranteed them under this part.
      (b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.”

      . 29 U.S.C. § 158 (1970) provides:
      “(a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 157 of this title;

      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . .

      .See McGuire, Public Employee Collective Bargaining in Florida — Past, Present and Future, 1 Fla.St.U.L.Rev. 26, 107-08 (1973).

      . We have today adopted the same rule in Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

      . Sec. 230.23(5)(b), Fla.Stat. (1975) requires school boards to accept the recommendations of the superintendent concerning employment of noninstructional personnel unless the school board has good cause to reject a recommendation. In this case the Board had notice of cause to reject — or at least to investigate the motive behind — the recommendation that Adams not be rehired, because prior to the Board meeting at which that recommendation was approved Adams’ employee organization filed an unfair labor practice charge alleging superintendent Phillips told Adams he would be fired if he continued his union organizational activities.


author: PER CURIAM.

text:
    CHASE MANHATTAN BANK, Appellant, v. S/D ENTERPRISES, INC., et al., Appellees.
    Nos. 76-1477 and 77-74.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 9, 1978.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Albert G. Caruana, Carl W. Hartley, Jr., and Alan T. Dimond, Miami, for appellant.
    Alfred J. Anton, Miami, Neil Flaxman, South Miami, Noriega, Bartel, Chopp, Schatz, Levine & Shuford and Paul J. Levine, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, The Chase Manhattan Bank, defendant and counter-plaintiff in the trial court, appeals from an adverse non-jury final judgment rendered in favor of appel-lees, S/D Enterprises, Inc., plaintiff and counter-defendant below, ánd Sonnenblick-Goldman Southeast Corporation, additional party defendant on the counterclaim below. The final judgment, inter alia, provided that appellant be allowed to foreclose its various mortgages on a certain condominium development owned by appellee, S/D Enterprises, Inc., conditioned upon the payment of $605,537.42 (representing undis-bursed construction loan funds held by appellant) upon which an equitable lien was to be created in favor of the creditors of S/D Enterprises, Inc., one of which being Son-nenblick-Goldman Southeast Corporation, a mortgage broker.

Appellant has appealed that part of the final judgment which created an equitable lien on the undisbursed construction loan funds, while appellee, S/D Enterprises, Inc., has cross-appealed that part of the final judgment which allowed appellant to foreclose its mortgages. Consolidated with the above is an interlocutory appeal taken by appellant from a post-final judgment order awarding appellee, S/D Enterprises’ attorney, a first priority charging lien on the equitable fund created by the above final judgment.

The facts of this case, as evidenced by a record of over two thousand pages and a trial transcript well over one thousand pages, are, at the very best, contradictory. We are, however, aided by a lengthy and detailed final judgment which contains numerous findings of fact, which, under the applicable appellate principles, must be given due weight.

Stated as succinctly as possible, the facts of this case are as follows: appellee, S/D Enterprises, Inc., was the owner of a large tract of land in Dade County, Florida, upon which it proceeded to develop an apartment lease-rental project. In November of 1972, appellee and appellant entered into various construction and mortgage loan agreements for the total sum of $4,740,000.00.

As construction progressed, it became apparent in the summer of 1973, that appellee would not be able to complete the project for the amount of the construction loan and that it would be in default under the mortgage and the construction loan agreement. Thereafter, appellee and appellant entered into a “work-out agreement” for a supplemental loan and for a plan to convert the project from a lease rental concept to a condominium development. The supplemental loan was for the amount of $3,722,-454.00.

As found by the chancellor (and hotly contested by appellant), the supplemental mortgage loans included an allocation schedule for the payment of various obligations incurred by appellee, S/D Enterprises, Inc., during the early phases of construction and prior to the workout agreement in the sum of $613,300.00.

Appellant failed to fund monies allocated for the various obligations resulting in ap-pellee, Sonnenblick-Goldman Southeast Corporation, obtaining a judgment against S/D Enterprises, Inc. for brokerage fees in the procuring of a certain mortgage commitment. In September of 1974, appellee, S/D Enterprises, Inc., concluded that appellant would no longer fund any monies under the various loan agreements and so it filed a complaint for damages alleging, inter alia, that appellant had breached its contract with appellee, S/D Enterprises, by failing to fund the balance of the construction loan— $605,537.42.

Appellant thereupon filed a counter-claim for foreclosure alleging numerous breaches of the construction loan agreement including the failure of appellee to complete construction of the project and the failure to pay the principle and interest due on the notes. Appellant subsequently took constructive possession of the premises on or about October 2, 1974, by replacing S/D Enterprises’ security guards with its own guards. A receiver was appointed by the chancellor to oversee the maintenance and completion of the project.

At the conclusion of the many hearings held by the court, the chancellor found that appellant had wrongfully breached the loan agreement by withholding sums in the amount of $605,537.42 and imposed an equitable lien in that amount in favor of the creditors of S/D Enterprises, Inc. The chancellor did, however, rule in favor of appellant on its counterclaim and allowed appellant to foreclose upon the development finding that appellee, S/D Enterprises, Inc., was in default under the terms of the mortgages. The equitable lien, however, was to be funded prior to appellant’s foreclosure.

In addition, a post-judgment order imposing a charging lien on the equitable fund, in favor of S/D Enterprises’ attorney was rendered by the court.

Of all points raised by the parties in these consolidated appeals, we find that a discussion of the following point will be dispositive of the others, to-wit: whether the trial court erred in creating a $605,-537.00 equitable lien on unpaid construction loan funds for the benefit of the creditors of appellee, S/D Enterprises, Inc. For the reasons that follow, we believe the court did so err.

Under a long line of Florida cases, in order for a court of equity to impose an equitable lien based upon unjust enrichment or out of a general consideration of right and justice, certain factors such as fraud, affirmative deception or material misrepresentation must be first present. See Merritt v. Unkefer, 223 So.2d 723 (Fla.1969); Gancedo Lumber Company, Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla. 3d DCA 1976); J. G. Plumbing Service, Inc. v. Coastal Mortgage Company, 329 So.2d 393 (Fla. 2d DCA 1976); Snead Construction Corporation v. First Federal Savings & Loan Association of Orlando, 342 So.2d 517 (Fla. 1st DCA 1976).

The pleadings filed sub judice do not allege any of the requisite factors necessary to support the imposition of an equitable lien. See Indiana Mortgage & Realty Investors v. Peacock Construction Company, 348 So.2d 59 (Fla. 2d DCA 1977); also Merritt v. Unkefer, supra. Rather, the claim was tried and judged upon a breach of contract count, i. e., failure to fund construction monies pursuant to the supplemental loan agreement, which in and of itself will not give rise to equitable relief in the form of the imposition of a lien. Marshall v. Scott, 277 So.2d 546 (Fla. 2d DCA 1973).

As for the lengthy and detailed final judgment, we find noticeably absent any finding by the chancellor to the effect that appellant engaged in any conduct tantamount to the aforementioned fraud, affirmative deception and/or material misrepresentation. The only language utilized by the chancellor in his order that might be considered as falling into one of the above three categories is as follows:

“The evidence further establishes that after a conference with the defendant bank’s officers in August, 1974, the plaintiff, in reliance upon the representation of the defendant bank that it would continue to fund, did in fact continue with the balance of the construction to completion and obligated itself to a number of sub-contractors and materialman; . . ”

It is our opinion, however, that such a finding as set forth above does not merit the imposition of an equitable lien on the unfunded loan. Compare Indiana Mortgage & Realty Investors v. Peacock Construction Company, supra. Notwithstanding the chancellor’s detailed findings of fact, we believe that the imposition of an equitable lien was not supported by law and therefore, that part of the order creating the lien must be reversed.

As for the cross-appeal filed by ap-pellee, S/D Enterprises, Inc., on the issue of foreclosure, we note that the chancellor found that S/D Enterprises was in default on the various mortgages. After a careful review of the record, it is our opinion that this finding was based upon competent substantial evidence and therefore, there was no abuse of discretion in granting appellant’s counterclaim for foreclosure. See Darling v. Rose, 301 So.2d 19 (Fla. 2d DCA 1974).

In that we have denied the imposition of an equitable lien on the unfunded portion of the construction loan, any question concerning the correctness of a first priority charging lien in favor of S/D Enterprises’ attorney becomes moot, because there exists no funds upon which the charging lien can be imposed.

Accordingly, that part of the final judgment awarding foreclosure is hereby affirmed, while that part of the judgment creating an equitable lien in favor of the creditors of appellee, S/D Enterprises, Inc., is reversed.

Affirmed in part; reversed in part and remanded for further proceedings.


text:
    Myrna N. MUMM, Appellant, v. Roger V. MUMM, Appellee.
    No. 76-1492.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 4, 1978.

      Podhurst, Orseck & Parks, Susan Goldman, Miami, for appellant.
    William John Mason, Miami, for appellee.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   PER CURIAM.

Myrna N. Mumm appeals an order ceasing all alimony payments entered pursuant to the modification petition of her former husband, Roger V. Mumm, the appellee.

In 1965 a judgment dissolving the marital bonds between Myrna and Roger Mumm was entered after 13 years of marriage. The judgment incorporated a settlement agreement executed by the parties whereby Roger agreed to pay Myrna $350 per month alimony. In addition, the agreement contained a cost of living clause which provided for automatic increases in the amount of alimony. In November 1975 Myrna filed a petition to enforce the final judgment alleging that Roger had failed to pay the cost of living increases since November 1974 and had refused since July 1975 to make any alimony payments. Roger answered that he was in arrears; but had borrowed sufficient funds to pay the arrearage and petitioned, pursuant to Section 61.14, Florida Statutes (1975), for modification seeking to terminate the alimony payments on the ground of changed circumstances. After an evidentiary hearing, the chancellor entered an order ceasing all alimony payments as of June 23, 1976 based upon the finding of a material change in circumstances.

We find merit in only one point raised on appeal, to-wit: the chancellor erred in failing to retain jurisdiction to award alimony in the future as there exists the possibility of a change of circumstances on the part of either of the parties in the future to justify or require the award of alimony payments. See Dings v. Dings, 161 So.2d 227, 229 (Fla.3d DCA 1964); Reed v. Reed, 244 So.2d 449 (Fla.1st DCA 1971).

Considering the remaining points directed toward the termination of alimony, we find from the record that Roger’s income has decreased over the past few years; Myrna is self-supporting and earns in excess of $16,000 a year; since the divorce Myrna has obtained both a Master’s and Doctorate Degree; in addition to her home, Myrna owns a duplex; and the parties only son has attained the age of majority. Thus, we cannot say that the chancellor abused his discretion in entering the order ceasing alimony payments. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976) and Cf. Anderson v. Anderson, 333 So.2d 484 (Fla.3d DCA 1976).

Accordingly, we amend the order ceasing payment of alimony so as to expressly retain jurisdiction of this cause for the future award of alimony upon a proper showing of changed circumstances with respect to either party.

Order affirmed as amended.


author: KEHOE, Judge.

text:
    L. C. MORRIS, INC., a Florida Corporation, Appellant, v. John F. ALLISON and David Jenkins, as Trustee, Appellees.
    No. 76-1516.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 4, 1978.

      Worley, Gautier & Sams and Robert G. Worley, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Fromberg, Fromberg & Roth, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ..
   KEHOE, Judge.

Appellant brings this appeal from a judgment entered by the trial court granting appellees’ motion for a directed verdict and judgment notwithstanding the verdict. The judgment entered by the trial court was predicated upon two basic reasons: (1) that a previous order dated June 8, 1971, entered by a predecessor judge constituted the law of the case, thereby precluding appellant’s recovery, and (2) that the evidence affirmatively established appellees should prevail. We have concluded that the trial court erred in entering the judgment and that the jury verdict in favor of appellant should be reinstated.

The prior history of the instant case on appeal may be found in L. C. Morris, Inc., v. Allison, 277 So.2d 28 (Fla. 3d DCA 1973), and L. G. Morris, Inc., v. Allison, 309 So.2d 9 (Fla. 3d DCA 1975). Except to the extent discussed herein, it is unnecessary for us to reiterate these proceedings.

In L. C. Morris, Inc., v. Allison, 309 So.2d 9 (Fla. 3d DCA 1975), we held that a jury issue was created on Count III of appellant’s second amended complaint, which alleged a cause of action based on the theory of quantum meruit, and remanded the issue for trial. Implicit within that holding was the conclusion that the June 8, 1971 order, previously entered by a predecessor judge and relied upon in the judgment herein under review, neither established the law of the case or operated as res judicata of the issue remanded. Therefore, the first reason given by the trial court in support of its judgment is without validity.

The second reason relied upon by the trial court in entering the judgment appealed was that the evidence, when viewed in a manner most favorable to appellant, affirmatively showed that appellees should prevail. It is well settled that the correctness of the entry of a judgment notwithstanding the verdict should be tested by the same rules as are applicable to rulings on motions for directed verdicts. As stated by this court in Florida. Tomato Packers, Inc., v. Wilson, 296 So.2d 536, 540 (Fla. 3d DCA 1974), “[sjuch motions should be cautiously granted and affirmed, and then only when it can be said, after viewing the evidence and testimony in the light most favorable to the nonmoving party, that a jury could not reasonably differ as to the credibility of the witness, or the existence of a material fact or a material inference, and that the mov-ant is not entitled to judgment as a matter of law.”

After a thorough review of the record in the instant appeal, in light of the principles set forth above, we have concluded that the jury, based on the evidence and issues presented to it, could have reasonably returned a verdict in favor of appellant on its theory of quantum meruit.

Because of this conclusion and our determination that the June 8, 1971, order of the trial court did not establish the law of this case or operate as res judicata, we hold that the trial court erred in entering its judgment dated July 22, 1976, granting appel-lees’ motion for directed verdict and judgment notwithstanding the jury verdict. [We note that the proper motion pursuant to Fla.R.Civ.P. 1.480(b), is a motion for judgment in accordance with motion for directed verdict. Sherman v. Lynch, 242 So.2d 799 (Fla. 3d DCA 1970)]. Therefore, the judgment entered by the trial court is reversed and the cause is remanded with instructions to reinstate the jury verdict in favor of appellant.

Reversed and remanded with instructions.


author: NATHAN, Judge.

text:
    The FIRESTONE TIRE AND RUBBER COMPANY, Appellant, v. THOMPSON AIRCRAFT TIRE CORPORATION et al., Appellees.
    No. 76-1561.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 4, 1978.

      Preddy, Kutner & Hardy and Glenn P. Falk, Miami, for appellant.
    Talburt, Kubicki & Bradley and Robert Dickman, Jeanne Heyward, Miami, for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by Firestone Tire and Rubber Company, third party plaintiff, from a summary final judgment in favor of Thompson Aircraft Tire Corporation, third party defendant. Firestone also appeals the trial court’s denial of its motion for leave to amend its complaint and of its petition for rehearing on the summary judgment.

The primary issue presented is whether or not a third party tortfeasor has any cause of action against an employer who has provided the benefits of Workman’s Compensation coverage to his injured employee. Because a cause of action may exist on the facts presented, and because the facts material to this cause of action remain disputed at this point, we partially reverse the summary judgment.

Appellant Firestone was sued by Peter Belokur, an employee of Thompson who was covered by Workman’s Compensation for injuries sustained during the course of his employment. Belokur was hurt when baskets of raw rubber fell on him as he stood near the fork lift which was unloading them. The baskets were owned by Firestone; the fork lift was operated by another employee of Thompson. Belokur’s suit against Firestone alleged, among other things, that his injuries were caused by Firestone’s negligence in loading or securing the baskets for shipment, and in failing to warn the carrier of the dangers of stacking the baskets too high. Firestone denied stacking the baskets. The record reveals disputed facts as to whether the actions of Thompson’s employee in operating the fork lift were the sole or primary cause of Belo-kur’s injury, or whether a defect in the quality or loading of the baskets may have caused the accident.

Firestone filed a third party claim against Thompson, alleging that Belokur’s injuries were caused solely by the negligence of Thompson’s employees or agents, and that Thompson alone should be liable. Firestone’s original third party complaint did not assert specifically that its negligence, if any, was only passive.

Thompson answered in turn, denying any negligence, and stating that no right to indemnity existed between Firestone and Thompson because Firestone was guilty of primary and active negligence; that the Workman’s Compensation Act bars third party tortfeasors from prosecuting an action against employers covered by the Act; and that the Uniform Contribution Among Tortfeasors Act barred Firestone’s right to contribution because it had not discharged any common liability with appellee.

Subsequently, Thompson moved for summary judgment. At the hearing on this motion, Firestone made an oral motion for leave to amend its complaint to state more clearly its contention that, although it was not negligent, if any negligence were to be found on its part, such negligence was purely passive. Firestone made it clear that its purpose in seeking the amendment was to preserve its right to seek indemnity. Thompson reasserted its contention that the Workman’s Compensation Act barred prosecution of any claim against it by Firestone.

Leave to amend was denied, and summary judgment was granted in favor of Thompson. Firestone then filed contemporaneous written motions for leave to amend and for rehearing on the summary judgment. The motions were denied. This appeal followed.

Appellant asserts it has potential causes of action against appellee on two theories: contribution and indemnity. It is imperative to the resolution of this case to distinguish between the two. Contribution is partial payment made by each or any jointly or severally liable tortfeasors who share a common liability to an injured party. Indemnification is an equitably imposed shifting of the entire burden of loss from one tortfeasor who has been compelled to pay it, to another whose active negligence is the primary cause of the injured party’s harm. Cf. Stuart v. Hertz Corporation, 302 So.2d 187, at 190-91 (Fla. 4th DCA 1974). See generally, 31 U.Miami L.Rev. 1283, at 1314-22 (1976).

We consider first whether a third party tortfeasor is entitled to contribution from an employer who has provided Workman’s Compensation benefits to his injured employee. The Uniform Contribution Among Tortfeasors Act provides that contribution is available to a jointly or severally liable tortfeasor who has paid more than his pro rata share of a common liability. The Workman’s Compensation Act provides that the liability of an employer who has supplied coverage to his employee is “exclusive and in place of all other liability of such employer to any third party tort-feasor . . . .”

The rule is nearly uniform among the states that, notwithstanding the existence of a Uniform Contribution Among Tort-feasors Act, a third party tortfeasor is not entitled to contribution from an employer whose negligence concurred in causing the injury of an employee when such injury is compensable under the applicable Workman’s Compensation Act. See 53 A.L.R.2d 977, at 985 (1957). The rationale for the denial of a right to contribution in favor of a third party tort feasor is that the employer and the third party are not under a common liability to the injured person since the employer’s liability is both imposed and limited by the Act, while that of the third party tortfeasor rests on principles of negligence. Id. at 980.

We therefore hold that summary judgment was properly rendered as to this issue, and appellant is not entitled to contribution from appellee because the parties do not share a common liability to the injured employee. United Gas Pipeline Company v. Gulf Power Company, 334 So.2d 310 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976).

The situation differs, however, where indemnity is concerned. Instead of resting on principles of common liability, the equitable doctrine of indemnity is predicated on the distinction between primary (active) and secondary (passive) liability between parties whose negligence is not coequal. In other words, the basis for indemnity lies in the relationship between the tortfeasors themselves, not on their common liability to the injured party. Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932), Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45, at 49-50 (Fla. 1st DCA 1963), modified sub nom Winn-Dixie Stores, Inc. v. Pepsi Cola Bottling Company of Jacksonville, Inc., 160 So.2d 102 (Fla.1964). See also Stuart v. Hertz Corporation, supra, at 190-01.

The Uniform Contribution Among Tortfeasors Act specifically states that “this act does not impair any right of indemnity under existing law,” and the right of a passive tortfeasor to cross claim against an active tortfeasor is well established in Florida. See Winn-Dixie Stores, Inc. v. Fellows, supra; Peoples Gas System, Inc. v. B & P Restaurant Corp., 271 So.2d 804 (Fla. 3d DCA 1973); Maybarduk v. Bustamante, 294 So.2d 374 (Fla. 4th DCA 1974); Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976).

Thus, as long as the provisions of Section 440.11(1) do not bar his claim, appellant could state a cause of action in indemnity if the disputed facts were viewed most favorably toward him. Since this is an appeal from a summary judgment, Firestone is entitled to this advantage. Armor Elevator Company, Inc. v. Elevator Sales and Service, Inc., 309 So.2d 44 (Fla. 3d DCA 1975).

In Sunspan Engineering & Construction Company v. Spring-Lock Scaffolding Company, 310 So.2d 4 (Fla.1975), the supreme court held that a third party action against an employer whose injured employee had received Workman’s Compensation benefits is not barred by the provisions of Section 440.11(1). It found the statute unconstitutional as applied to a situation precisely akin to the case sub judice. The rationale was that a third party tortfeasor should be entitled to file a third party complaint for indemnification against an actively negligent employer because a statute cannot abolish a right of action without providing a reasonable alternative to protect the people’s rights to access to the courts and to equal protection of the law.

Whether a party is actively or passively negligent is a question of fact to be resolved by the trier of fact. People’s Gas System, Inc. v. B & P Restaurant Corp., supra; Maybarduk v. Bustamante, supra; Florida Power Corporation v. Taylor, supra. The record shows disputed facts on this issue. Thus summary judgment was improperly rendered as to Firestone’s right to seek indemnity.

Moreover, Firestone, as third party plaintiff, is not “locked in” by the allegations of Belokur’s complaint. Central Truck Lines, Inc. v. White Motor Corporation, 316 So.2d 579 (Fla. 3d DCA 1975); Crawford Door Sales Company, Inc. v. Donahue, 321 So.2d 624 (Fla. 2d DCA 1975); Bodin Apparel, Inc. v. Superior Steam Ser vice, Inc., 328 So.2d 533 (Fla. 3d DCA 1976). He may still allege in his third party complaint that he is but a passive tortfeasor.

The court’s refusal to allow Firestone to so amend was particularly prejudicial in light of this court’s ruling in Armor Elevator, supra, that a third party plaintiff who was sued as an active tortfeasor could not claim indemnity from the employer without alleging that it was only passively negligent. It is well established that leave to amend should be freely given, the more so when a party seeks such a privilege at a hearing on a motion for summary judgment, Haag v. Phillips, 333 So.2d 507 (Fla. 2d DCA 1976), and when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought. Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977).

We affirm the summary judgment as to contribution, but reverse as to indemnity and the right to amend third party plaintiff’s complaint.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinions expressed herein.

      . § 768.31, Fla.Stat. (Supp.1976).

      . § 440.11(1), Fla.Stat. (Supp.1976).

      . We have not failed to consider appellant’s argument that a recent decision of the Fourth District supports his position that contribution should be allowed despite the immunity provided by § 440.11(1).
      In Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977), our sister court held that the common law doctrine of inter-spousal immunity does not preclude contribution among joint tort-feasors when the tortfeasor from whom contribution is sought is the spouse of the injured party who recovered damages from the first tortfeasor. The policy behind this decision was that the common law doctrine of inter-spousal immunity should not be allowed to abrogate the intention of the legislature which enacted the Uniform Contribution Among Tortfeasors Act to apportion burden commensurate with responsibility among joint tortfeasors.
      Appellant’s argument is inapt because we do not here consider a common law doctrine. Rather we construe two legislative pronouncements, one of which limits liability under specific circumstances while the other uniformly has been construed as not conflicting with its provisions. (See discussion above.) The Paoli Court treated a traditional common law concept of judicially created immunity which is arguably more amenable to change by the judiciary as the requirements of the times may dictate. Moreover, in reaching the conclusion it did, that court aimed at compliance with the intent of the legislature, just as we do here.
      We note in passing that, because the decision in Paoli conflicts with that in Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976), upholding inter-spousal immunity in the face of the Uniform Act, the question presented has been certified to the supreme court.

      . § 768.31(2)(f), Fla.Stat. (Supp.1976).

      . We note that Armor is clearly distinguishable from the instant case in that the third party plaintiff therein made no attempt to amend his complaint, but instead predicated his claim for indemnity on the fact that both he and the third party defendant were actively negligent but it was third party defendant’s negligence which caused decedent’s harm.