## Facts

- Each year, the Canaveral Port Authority (the Authority) conducted individual employee interviews as part of its annual merit process to decide whether an employee would receive a discretionary raise and, if so, the amount.
- Any merit increase was discretionary, and management review (including supervisory review) was part of the process before final pay adjustments were made.
- The Authority used the same interview-and-raise practice for employees in the proposed bargaining unit sought by District 2A Transportation, Technical, Warehouse & Service Employees Union (the Union) and for employees outside the proposed unit.
- Because the process occurred at the end of each year, employees had an expectation that the interviews and resulting merit decisions would be conducted on that regular schedule.
- In December 1997, the Authority had budgeted funds for merit increases for the upcoming year but had not yet completed the annual interviews.
- The interviews were delayed because union representation petitions were pending involving two unions seeking to represent Authority employees.
- The Authority filed a petition with the Florida Public Employees Relations Commission (PERC) seeking a declaratory statement on whether it could continue its longstanding annual merit interview practice and award discretionary pay increases while the representation petitions were unresolved.
- The matter was presented to PERC on stipulated facts rather than through an evidentiary hearing.

## Issues

1. May a Florida public employer continue an established annual practice of individualized, discretionary merit-raise interviews and resulting pay adjustments while representation petitions are pending?
2. If the employer may continue the practice, what limits apply to ensure the employer does not interfere with employees’ rights in connection with the representation proceeding?

## Decision

- PERC issued a declaratory statement that the Authority could continue its established annual merit interview process and grant discretionary pay increases during the pendency of the representation proceedings.
- PERC reasoned that continuing a consistent pre-petition compensation practice is generally “business as usual” and does not, by itself, constitute interference with protected rights.
- PERC also reasoned that suspending expected, recurring merit increases solely because of an organizing campaign may itself exert improper pressure on employees by suggesting that union activity results in the loss of anticipated benefits.
- PERC cautioned that the Authority’s permission to proceed was limited: the Authority could not use the wage process to influence employee choice, could not make threats or promises tied to union support, and could not apply the merit system in a discriminatory way based on union sentiment.
- PERC emphasized that any departure from the historic method, timing, scope, or criteria of the merit process to reward or punish union support could violate §§ 447.501(1)(a) and (b), Florida Statutes.

## Legal Principles

- In a pending representation case, maintaining an established and consistently applied compensation practice may be treated as preserving the status quo rather than changing terms and conditions of employment.
- Stopping a regular, expected pay practice during an election period can be coercive if employees reasonably view the loss or delay of benefits as linked to union activity.
- An employer may continue preexisting pay practices during an election period only if it does so without threats, promises of new benefits, or discriminatory treatment connected to employees’ union preferences.
- Under §§ 447.501(1)(a) and (b), Florida Statutes, an employer may not interfere with, restrain, or coerce employees in the exercise of protected rights, and may not encourage or discourage union membership by discrimination regarding compensation or other employment terms.
- The controlling question in this setting is whether the employer is continuing “business as usual” (a consistent past practice applied evenhandedly) rather than using pay decisions as a tool to affect employee free choice.

## Conclusion

In District 2A Transportation, Technical, Warehouse & Service Employees Union v. Canaveral Port Authority, PERC held that the Authority could continue its longstanding annual, discretionary merit-raise interviews and related pay adjustments during pending representation petitions, as long as it applied the practice uniformly and avoided threats, promises, or discriminatory pay actions tied to union support, because suspending an expected practice during an organizing campaign can itself pressure employees and any manipulation of the practice could violate §§ 447.501(1)(a) and (b), Florida Statutes.


District 2A Transportation, Technical, Warehouse & Service Employees Union v. Canaveral Port Authority, 24 F.P.E.R. ¶ 29,228 (1998)