
    COMMUNICATIONS WORKERS OF AMERICA, LOCAL 3170, Appellant, v. CITY OF GAINESVILLE, Appellee.
    District Court of Appeal of Florida, First District.
    June 17, 1997.
    Rehearing Denied July 24, 1997.
    Paul A. Donnelly and Laura A. Gross of the Law Office of Franklin, Donnelly, & Gross, Gainesville, for Appellant.
    Elizabeth A. Waratuke, Litigation Attorney, City of Gainesville Law Department, for Appellee City of Gainesville.
    Jerry Cheatham, Staff Counsel, Public Employees Relations Commission, Tallahassee, for the Public Employees Relations Commission.
   BENTON, Judge.

Communications Workers of America, Local 3170(CWA), appeals a final order entered by a panel of the Public Employees Relations Commission (PERC) on appeal of a general counsel’s order (No. 96GC-074). At issue is PERC’s jurisdiction to consider unfair labor practice charges alleging that the City of Gainesville (City) failed to bargain in good faith in imposing restrictions alleged to infringe public employees’ rights under the Workers’ Compensation Law, and the state and federal constitutions. Concluding that PERC’s jurisdiction to hear unfair labor practice charges is not defeated because the practices complained of are alleged to violate statutory and constitutional provisions, we reverse and remand for further proceedings.

We break no new ground in deciding that PERC has jurisdiction over charges alleging unfair labor practices that violate section 447.501(1), Florida Statutes (1995), where the practices also allegedly violate other statutory or constitutional requirements. PERC has itself previously approved a recommended order to the effect that “an employer violates its duty to bargain in good faith when, in the absence of an express agreement by the union, it legislatively imposes contract provisions which eliminate statutory and constitutional rights.” Prof'l Fire Fighters of Ocala, Local 2135 v. City of Ocala, 18 FPER ¶ 23171, 310 (PERC 1992)(citing Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So.2d 1221, 1227 (Fla.1985)).

Dispute Gives Rise To Charges PERC Dismisses

The present ease arises out of the City’s efforts to assure city personnel “drug-free workplaces.” Sections 440.101 and 440.102, Florida Statutes (1995), were enacted “to promote drug-free workplaces.” § 440.101(1), Fla. Stat. (1995). In order to implement a “drug-free workplace program,” public employers are directed to engage in collective bargaining with public employee unions to negotiate any necessary changes in terms and conditions of employment.

When the City and CWA engaged in collective bargaining to that end, they reached an impasse. The parties then waived proceedings before a special master, and submitted their proposals for resolving the impasse to the Gainesville City Commission for resolution. On December 4, 1995, over CWA’s objection, the City Commission voted to accept the drug testing program advocated by City management, including proposals concerning random drug testing, notice (or lack thereof), and immediate dismissals.

In response to the City Commission’s decision, CWA filed unfair labor practice charges against the City, including No. CA-96-020, alleging that the City breached its duty to bargain in good faith, in violation of section 447.501(l)(a) and (c), Florida Statutes (1995), by imposing contract language which abrogated employees’ statutory rights under sections 440.101 and 440.102, Florida Statutes (1995); and, in No. CA-96-023, by imposing contract language that infringed on employees’ state and federal constitutional rights to due process, privacy, and equal protection, and to be free from unlawful searches and seizures.

PERC’s general counsel dismissed these charges, stating that “the power to consider and resolve constitutional issues is vested only in the courts,” citing Anderson v. International Brotherhood of Painters and Allied Trades, AFL-CIO, Local 1010, 6 FPER ¶ 11114 (1980), affd, 401 So.2d 824, 828 (Fla. 5th DCA 1981)(noting PERC’s “contention] that it had no jurisdiction” to determine the validity of an administrative rule). CWA appealed the general counsel’s decision to PERC, which affirmed the general counsel’s summary dismissal. PERC eschewed jurisdiction of unfair labor practice charges Nos. CA-96-020 and CA-96-023 on grounds that, in order to determine whether unfair labor practices had occurred, it would have to decide whether the City had violated rights conferred by the Workers’ Compensation Law, and whether the City had violated certain state and federal constitutional rights.

No Effort To Invalidate Statute

To consider CWA’s unfair labor practice charges, PERC did not need to adjudicate the constitutionality of any administrative rule, municipal ordinance, or statute. One of the unfair labor practice charges CWA has filed invokes chapter 440, Florida Statutes (1995), and depends on chapter 440’s validity for any viability it may have. Neither charge asks PERC to invalidate any portion of chapter 440 or to declare any other statutory provision unconstitutional.

PERC’s primary putative expertise pertains principally to chapter 447, Florida Statutes (1995), not to the Workers’ Compensation Law, chapter 440, Florida Statutes (1995), as such. Even so PERC must take chapter 440, Florida Statutes (1995), into account, if it is to decide CWA’s unfair labor practice charge No. CA-96-020. gy from federal law is instructive: An analo-

Although the [Federal Mine Safety and Health Review] Commission has no particular expertise in construing statutes other than the [Federal] Mine [Safety and Health] Act, we conclude that exclusive review before the Commission is appropriate since “agency expertise [could] be brought to bear on” the statutory questions presented here.

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214-15, 114 S.Ct. 771, 780, 127 L.Ed.2d 29 (1994). The “statutory questions” to which the Court adverted arose under the National Labor Relations Act, not under the Federal Mine Safety and Health Act in which the Commission had its primary putative expertise. But the Commission was not free to ignore the National Labor Relations Act, just as PERC cannot ignore the Workers’ Compensation Law here. See State, Department of Labor and Employment Security v. Jones, 660 So.2d 282 (Fla. 1st DCA 1995), review denied mem., 669 So.2d 251 (Fla.1996).

We have previously distinguished between remedying violations of statutory and constitutional rights, and recognizing that such rights exist in the course of applying another statute. Acknowledging that PERC is not a federal law enforcement agency, we held in Jones that PERC had to decide whether a federal statute had been violated in order properly to decide a career service case. On rehearing, we dismissed PERC’s protestations that the federal statute was “‘beyond the Commission’s expertise and jurisdiction.’ ” 660 So.2d at 285. We held that it was incumbent on PERC to see that “judicial notice of (i.e., application of]) federal law” was properly accomplished and that PERC was obligated to give “recognition of the supremacy of federal law in the context of this case.” Id. In relying on the Supremacy Clause, we made clear that PERC was no more free to ignore constitutional rights than it was at liberty to ignore statutory rights. Accord Palm Beach Junior College.

Administrative Adjudication Of Constitutional Issues

Charge No. CA-96-023 alleges that the terms and conditions the City unilaterally imposed violate CWA’s members’ constitutional rights and so constitute an unfair labor practice. The Legislature has assigned PERC the task of evaluating this contention, subject to judicial review. PERC’s obligation to decide whether or not to sustain unfair labor practice charges does not turn on whether the charges include claims that constitutional rights have been infringed. As was said in an analogous federal setting,

the constitutional issue does not require the agency to question its own statutory authority or to disregard any instructions Congress [here, the Legislature] has given it. Rather, the constitutional question is presented as part of the petitioners’ claim of entitlement to the statutory relief that the hearing board is authorized to grant them. And permitting the hearing board to address constitutional claims that arise in the course of the board’s performance of its statutory duties does not foreclose subsequent judicial review of those claims.

Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563, 1569-1570 (Fed.Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 773, 133 L.Ed.2d 726 (1996). PERC cannot shut its eyes to constitutional issues that arise in the course of administrative proceedings it conducts. Cf. Thunder Basin Coal, 510 U.S. at 214-15, 114 S.Ct. at 780 (Federal Mine Safety and Health Review Commission decides due process claims initially); N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979)(N.L.R.B. overrules First Amendment objection to exercise of its statutory jurisdiction).

Constitutional questions arise not infrequently in administrative adjudication. Administrative law judges and other agency adjudicators may be required, for example, to determine whether a witness has properly invoked the privilege against self-incrimination guaranteed by both state and federal constitutions. See e.g., Florida Real Estate Comm’n v. Cossette (No. 77-219, DOAH, Sept. 29, 1977). See Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Har v. L.Rev. 1682, 1690 (1977)(“[P]ermitting agencies to consider constitutional limits on legislative enactments ... may curb agency excesses by focusing administrative attention on constitutional restrictions.”). PERC’s clear authority to decide whether unfair labor practices have occurred does not disappear when, in order to make the determination, it has to consider constitutional dictates.

The notion that the constitution stops at the boundary of an administrative agency’s jurisdiction does not bear scrutiny. In Patsy v. Board of Regents of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), the Court repudiated the old Fifth Circuit’s effort to make exhaustion of state administrative remedies a prerequisite to bringing suit in federal court for redress of deprivation of constitutional rights. But it was never doubted that such administrative remedies existed. Indeed, recent federal legislation requires prisoners challenging the conditions of their confinement on constitutional grounds under 42 U.S.C. § 1983 to exhaust administrative remedies before filing suit. Prison Litigation Reform Act of 1996, Title VII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321. See generally Williams v. Red Bank Bd. of Educ., 662 F.2d 1008, 1017 (3rd Cir.1981)(“[W]here the state [administrative] proceedings are adequate to vindicate federal claims ... the [federal] district court ... should abstain.”).

We are not unaware that our supreme court once pronounced sweepingly that an “administrative hearing officer lacks jurisdiction to consider constitutional issues.” Gulf Pines Mem’l Park, Inc. v. Oaklaum Mem’l Park, Inc., 361 So.2d 695, 699 (Fla.1978)(obiter dicta). In context, however, this and similar statements stand for a narrower proposition: The Administrative Procedure Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds. See Note, 90 Harv. L.Rev. at 1687-88.

Executive branch officers, like legislators and judges, are charged with upholding the constitutions under which they hold authority. A policeman on the beat does not usurp judicial prerogatives in deciding — in the first instance — that there is probable cause for a warrantless arrest or that a suspect may lawfully be questioned.

Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect.

Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). Administrative law judges not purporting to invalidate legislative enactments do not usurp judicial or legislative prerogatives by deciding — in the first instance — the constitutional issues that arise in eases properly before them. The same is true of PERC commissioners, who are, after all, “officers ... granted quasi-judicial power.” Art. V, § 1, Fla. Const. (1972).

In Palm Beach Junior College, our supreme court approved our opinion affirming PERC’s determination that a junior college had committed an unfair labor practice by bargaining to impasse over language that waived collective bargaining rights guaranteed by article I, section 6, of the Florida Constitution and section 447.301, Florida Statutes (Supp.1980). The court determined that negotiations over a “zipper clause” should never have been taken to impasse, and that the parties should be returned to the status quo before impasse was declared. 475 So.2d at 1227.

Proceedings On Remand

Such relief may be in order here, if PERC determines that unfair labor practices have in fact occurred. In deference to PERC’s expertise in public labor law, however, we decline to reach the merits of CWA’s unfair labor practice charges, in the first instance.

We decide only that PERC has the jurisdiction, authority, and responsibility to decide the merits of CWA’s unfair labor practice charges Nos. CA-96-020 and CA-96-023; reverse PERC’s order on appeal of general counsel’s order (No. 96GC-074); and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KAHN, J., concurs specially with opinion.

DAVIS, J., dissents with opinion.

KAHN, Judge,

concurring specially

In this case the Union, CWA, has brought charges against the employer alleging unfair labor practices in violation of section 447.501, Florida Statutes (1995). The crux of these charges, according to the Union’s petitions, is that the City failed to bargain in good faith when it imposed terms and conditions of employment that waived the public employee’s right to workers’ compensation under chapter 440, and that the City failed to bargain in good faith when it imposed terms and conditions of employment that waived the public employee’s state and federal constitutional rights of due process, privacy, search and seizure, and equal protection. I do not see that resolution of the Union’s petitions necessarily requires PERC to engage in any sort of binding adjudication of the constitutionality of a Florida statute. I therefore agree that PERC erred in summarily dismissing the unfair labor practice charges.

In Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978), the supreme court considered an appeal of an order in which the circuit court held section 559.39(2), Florida Statutes (1977), unconstitutional as an invalid delegation of legislative authority. 361 So.2d at 696. On direct appeal to the supreme court, Gulf Pines argued that the circuit court lacked jurisdiction to consider Oaklawn’s suit because Oaklawn had not exhausted its administrative remedies under chapter 120. Concluding that the case was appropriate for circuit court consideration, the supreme court noted that an “administrative hearing officer lacks jurisdiction to consider constitutional issues,” citing Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976).

In Young American Builders, this court had for review a circuit court order upholding its jurisdiction to determine the constitutionality of a Department of Revenue rule. The Department of Revenue took an appeal asserting that Young American Builders should have pursued an administrative remedy in its attack against the rule, and consequently that the circuit court lacked jurisdiction. 330 So.2d at 865. Holding that the circuit court properly exercised jurisdiction, this court observed, “if as Builders contends, the rule is on its face unconstitutional by due process standards, there is no remedy for it in ch. 120, F.S. (1975).” 320 So.2d at 865.

In both Gulf Pines and Young American Builders, a party subject to administrative regulation sought a binding declaration that a particular statute or rule was unconstitutional and unenforceable. I see no parallel between those situations and that arising in the present case in which CWA seeks rulings from PERC that the City has engaged in unfair labor practices by approving a drug testing program that allegedly diminishes bargaining unit members’ rights under chapter 440 and also certain of their constitutional rights. I do not see that our remand to PERC to hear these charges will require or allow PERC to engage in the prohibited activity of adjudicating the constitutionality of a statute. Because the matter before PERC is whether a public employer committed an unfair labor practice, rather than whether CWA is entitled to particular relief beyond the confines of chapter 447, I agree that this matter must be remanded to PERC for further proceedings.

DAVIS, Judge,

dissenting.

Believing that PERC correctly determined that it lacked jurisdiction to determine whether the incorporation into the parties’ collective bargaining agreement of the City’s proposed drug testing program would violate constitutional or statutory rights of the employees, I respectfully dissent. The Communications Workers of America, Local 3170, filed four separate unfair labor practice charges against the City of Gainesville, and the City filed one such charge against the Union, all stemming from collective bargaining efforts in 1995. The disputed issue was the incorporation of a drug testing program in the collective bargaining agreement. After the Union and the City reached an impasse in negotiations on that issue, their proposals were submitted to the Gainesville City Commission for resolution. PERC found sufficient, and set for hearing, the City’s charge that the Union engaged in an unfair labor practice by refusing to submit the City Commission’s impasse resolution for a ratification vote by the Union membership. PERC also found sufficient, and set for hearing, Union charges that the City failed to maintain the appearance of propriety and neutrality during the legislative impasse hearing and that the City failed to bargain in good faith by imposing language which waived employees’ right to bargain the terms and conditions of employment. None of those charges are at issue in this appeal. The sole issue before this court is the propriety of PERC’s determination that it lacked jurisdiction to decide the issues raised in Union charges that the substantive provisions of the City’s drug testing program violate employees’ rights under the Florida Workers’ Compensation Act and state and federal constitutional rights of due process, privacy, equal protection and against unreasonable searches and seizures.

PERC was correct in determining that it lacked the authority to decide whether the specific provisions of the City of Gainesville’s legislatively imposed drug testing program would violate constitutional rights of employees. The cases cited in Judge Benton’s opinion do not support a holding that a Florida administrative agency may decide such constitutional questions. The issue in One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), was the applicability of the Fourth Amendment protection against unreasonable searches and seizures in a civil forfeiture proceeding. There was no administrative hearing, and the issue of the authority of administrative hearing officers to determine constitutional questions was neither raised nor addressed. The court in Renbur Drugs, Inc. v. Florida Bd. of Pharmacy, 249 So.2d 698 (Fla. 3d DCA 1971), never suggested that the appellants’ allegations of due process and search and seizure violations had even been raised in the administrative disciplinary proceeding. After the appellants’ permit was administratively revoked, appellants filed a petition for writ of certiorari in circuit court, in which the constitutional issues were raised. The circuit court denied the writ, and that decision was affirmed on appeal. The issue in Adams v. Florida Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), review denied mem., 412 So.2d 463 (Fla.1982), was whether certain evidence (seized in a warrantless search by a police officer who found marijuana in plain view while in hot pursuit of a vandalism suspect) was properly admitted in administrative proceedings in which appellants’ teaching certificates were revoked. The court did not hold that the administrative agency had the power to determine the constitutional issue, but rather, the court itself held that the evidence had been admitted properly. The three additional administrative cases cited by Judge Benton are not persuasive authority that administrative hearing officers can decide constitutional issues, or that the Florida Supreme Court’s statement in Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), that an “administrative hearing officer lacks jurisdiction to consider constitutional issues,” should not be taken at face value.

Judge Benton has cited Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So.2d 1221 (Fla.1985), in support of the premise that PERC can, and must, consider constitutional issues in exercising its authority. In that case, the issue was whether the Board of Trustees had failed to bargain in good faith by insisting to impasse on the inclusion of language under which the employees would waive their rights to engage in collective bargaining in the future. The constitutional and statutory rights being addressed directly concerned the right to collectively bargain, which is PERC’s area of expertise. In the instant ease, PERC found sufficient and set for hearing the unfair labor practice charge that is most closely analogous to the issue in Palm Beach Junior College, specifically, that the City failed to bargain in good faith, and violated section 447.501(l)(a) and (c), Florida Statutes (1995), by imposing language which waived employees’ right to bargain the terms and conditions of employment.

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994), relied upon by Judge Benton, is distinguishable. In that case, the Supreme Court concluded that “Petitioner’s statutory claims at root require interpretation of the parties’ rights and duties under ... the Mine Act and fall squarely within the Commission’s expertise.” Id. at 214, 114 S.Ct. at 779, 127 L.Ed.2d at 42. PERC’s expertise does not extend to the Workers’ Compensation Act. Further, the Thunder Basin Court acknowledged “that ‘[adjudication of the constitutionality of Congressional enactments has generally been thought beyond the jurisdiction of administrative agencies ... ’” Id. The issue in that ease was whether mine operators could file suit for an injunction in federal district court. The Mine Act provided that all claims were to be decided by the Commission with review by the Court of Appeals and that the district court had no jurisdiction (with two exceptions not relevant to the case). The Court held that the mine operators’ assertion of a constitutional due process claim did not justify ignoring the Act’s “comprehensive enforcement structure,” because “petitioner’s statutory and constitutional claims here can be meaningfully addressed in the court of appeals.” Id. at 215, 114 S.Ct. at 780, 127 L.Ed.2d at 43. As the court explained in Massieu v. Reno, 91 F.3d 416, 420, 424 (3d Cir.1996), the Thunder Basin decision was not based upon the authority of the administrative agency to decide constitutional issues. Rather, the Court’s ruling was based upon the fact that the United States Court of Appeals could provide judicial review of the constitutional claims. Therefore, the Massieu court applied Thunder Basin and held that the district court had erred in declaring a statute unconstitutional and granting Massieu, an alien, an injunction against deportation pursuant to that statute. Under the relevant statutory scheme Mas-sieu was required to exhaust his administrative remedies, even though “the immigration judge is not authorized to consider the constitutionality of the statute,” because the appellate court could provide adequate judicial review of the constitutional claim.

In Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed.Cir.1995), cert. denied mem., 116 S.Ct. 1773 (1996), the court held that the case presented an exception to “the general rule that administrative agencies do not have jurisdiction to decide the constitutionality of congressional enactments.” Id. at 1569. The reason given for that exception was that the statutory scheme in which Congress allocated adjudicative responsibility for the age discrimination claim involved in that case provided for an administrative proceeding reviewable by the federal appellate court, and expressly prohibited the initiation of proceedings in the federal district court. Id. at 1570. The court concluded that, if it was to review a constitutional issue, the administrative forum below had to have had the initial power to rule on the constitutional question. Id.

The Riggin decision conflicts with the Massieu interpretation of Thunder Basin. Moreover, the ruling in Riggin is distinguishable from established principles of Florida jurisprudence. In Florida, the administrative hearing officer has no power to resolve such constitutional questions; either the reviewing court may do so de novo in the appropriate case or the constitutional claim may be adjudicated in circuit court. See generally Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982). The resolution of the claim that the drug testing program instituted by the City violates employees’ rights to be free from unreasonable searches and seizures would necessarily embroil PERC in deciding the constitutionality of the underlying Drug Free Workplace provisions of the Florida Workers’ Compensation Act. PERC correctly dismissed the unfair labor practice charges at issue in this appeal because PERC could not decide whether an unfair labor practice had occurred by virtue of the City inserting the drug testing program language into the collective bargaining agreement without reaching substantive questions regarding the extent of the employees’ constitutional rights and whether those rights are violated by this program. The gravamen of these unfair labor practice charges is that the details of the City’s proposed drug free workplace program either (a) violate the Florida Workers’ Compensation Act, or (b) comply with that Act, but violate the employees’ constitutional rights because the provisions of the Act itself are unconstitutional. PERC would have to do more than “take chapter 440 ... into account,” ante at 168; the Commission would be forced to determine whether the City’s program comports with chapter 440, and, if so, whether the provisions of chapter 440 violate constitutional rights of these employees. As' conceded by Judge Benton, the resolution of this charge depends in significant part on the validity of the provisions of the Workers’ Compensation Act. Thus, the basic premise that “PERC need not adjudicate the constitutionality of any administrative rule, municipal ordinance, or statute,” ante at 168, is flawed.

Resolving such constitutional issues is clearly beyond the scope of administrative proceedings in Florida. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., supra. Unlike the federal district court jurisdiction which was expressly limited by statute in Riggin, in Florida, “circuit courts have the power, in all circumstances, to consider constitutional issues.” Key Haven, 427 So.2d at 156-57. Moreover, when the parties are litigating other issues in an administrative forum which does not have the power to resolve constitutional questions, the “constitutional issues may be considered de novo by this court on appeal from an administrative proceeding.” Glendale Federal Savings and Loan Ass’n v. Florida Dep’t of Ins., 485 So.2d 1321, 1323 (Fla. 1st DCA), review denied mem., 494 So.2d 1150 (Fla.1986). In State Employees Attorneys Guild v. State of Florida, 653 So.2d 487 (Fla. 1st DCA 1995), this court held that PERC correctly dismissed a petition for certification of a bargaining agent because the agency did not have the power to determine the constitutionality of the statute excluding those persons employed by the state in their capacity as members of the Florida Bar from engaging in collective bargaining. This court was unable to resolve the constitutional question de novo because of the lack of a record to support either parties’ factual assertions; therefore, the dismissal was affirmed without prejudice to appellant’s right to seek a declaratory judgment in circuit court concerning the constitutionality of the statute.

PERC was also correct in determining that the charge asserting that the drug testing program would violate employees’ statutory workers’ compensation rights was beyond the agency’s jurisdiction. None of the members of the panel considering this case have disagreed with the fundamental premise that PERC lacks authority to determine an employee’s entitlement to workers’ compensation benefits. I respectfully submit that it is illogical to conclude that PERC can nonetheless somehow decide whether the provisions of this drug testing program violate employees’ rights to workers’ compensation benefits. PERC cannot resolve the charge made by the Union without deciding the extent of employees’ rights under the workers’ compensation statutes in order to discern whether any such rights would be adversely affected by the City’s drug testing program. The Union seeks to have PERC remedy the asserted violation of rights under the Workers’ Compensation Act by eliminating the allegedly offending parts of the drug testing program. As the case cited in footnote 3 of Judge Benton’s opinion establishes, PERC does not have the authority to do so. See Florida Dep’t of Labor and Employment Security v. Jones, 660 So.2d 282, 284-85 (Fla. 1st DCA 1995), review denied mem., 669 So.2d 251 (Fla.1996).

Accordingly, I would affirm. 
      
      . We intimate no view on the merits of the unfair labor practice charges that CWA has lodged. See Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So.2d 31 (Fla. 1992). lie sector employers that operate under a collective bargaining agreement.
      § 440.102(13), Fla. Stat. (Supp.1996).
     
      
      . Drug-free workplace program requirements are a mandatory topic of negotiation with certified collective bargaining agents.
      (13) COLLECTIVE BARGAINING RIGHTS.-
      (a) This section does not eliminate the bar-gainable rights as provided in the collective bargaining process if applicable.
      (b) Drug-free workplace program requirements pursuant to this section shall be a mandatory topic of negotiations with any certified collective bargaining agent for nonfederal pub-
     
      
      . Of course, PERC lacks authority to award benefits to an employee under the workers’ compensation statutes, just as it lacked primaiy enforcement authority under the federal statute involved in State Department of Labor and Employment Security v. Jones, 660 So.2d 282 (Fla. 1st DCA 1995), review denied mem., 669 So.2d 251 (Fla.1996).
     
      
      . Search and seizure questions have also arisen in the course of administrative proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Adams v. State, Prof'l Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981)(affirmmg agency’s reversal of hearing officer’s order suppressing evidence), review denied, 412 So.2d 463 (Fla. 1982); Renbur Drugs, Inc. v. Florida Bd. of Pharmacy, 249 So.2d 698 (Fla. 3d DCA 1971); Criminal Justice Standards & Training Comm’n v. Woodham (No. 88-4730, DOAH, Jan. 30, 1989); Division of Alcoholic Beverages & Tobacco v. Morgan, 2 FALR 1310A, 1311A (Department of Bus. Regulation, Sept. 10, 1980).
     