SCANNED DOCUMENT - PLEASE DO NOT CITE

PUBLIC EMPLOYEES RELATIONS COMMISSION

CB-2002-017; Order 02GC-181 (July 17, 2002)

ROBERT JOHN RUBINO, Charging Party,

v.

FIREFIGHTERS OF BOCA RATON, LOCAL 1560, Respondent.

Robert John Rubino, Lake Worth, charging party representing himself. Michael Gergora, Boca Raton, representative for respondent.

On July 8, 2002, Robert John Rubino filed an unfair labor practice charge alleging that the Firefighters of Boca Raton, Local 1560 (Local 1560) violated Section 447.501(2)(a), Florida Statutes (2001). Upon review of the charge pursuant to Section 447.503, Florida Statutes (2001) and Florida Administrative Code Rule 6000-5, conclude that the charge fails to state a prima facie violation of the applicable unfair labor practice provision.

Rubino alleges that he was hired by the City of Boca Raton (City) on August 14, 2000. The City's rules and regulations allow department heads to increase the minimum starting salary by up to ten percent for recruitment purposes. While this rule had not previously been used in the fire department, other departments had used this rule. Rubino accepted his position based on being paid the minimum salary plus ten percent. One year later, he received a merit raise.

Shortly after Rubino had been with the City for one year, Local 1560 discovered that he was hired under the ten percent rule and filed a grievance against the City for doing so. Rubino was not named in the grievance and he was told the issue in the grievance was whether the fire chief could exercise the ten percent rule in the future. Rubino was also told that the grievance did not directly affect him and he did not need to be concerned with it because it was a tool for Local 1560 to go after the fire chief with whom it was not happy.

The grievance eventually went to arbitration and Local 1560 prevailed. Rubino then received notice that, because of the arbitration ruling, his pay had been reduced by ten percent. Local 1560 blamed this result on the City, but Rubino was told by other unnamed bargaining unit members that this remedy was instituted because Local 1560 would not offer any alternatives other than raising the pay of all unit members. Rubino requested copies of the briefs, transcripts, and all documents regarding the grievance from Local 1560's president, but he never received them. Local 1560's president stated that the delay was caused by the holidays; however, Rubino still did not receive the documents after January, 2002. Rubino asked Local 1560 to represent him in attempting to recoup his lost wages and challenge the breach of his contract. Local 1560 informed him that it could not represent him due to a conflict of interest. Local 1560 has repeatedly advised Rubino that there is nothing he can do.

Section 447.503(6)(b), Florida Statutes (2001), provides that an unfair labor practice charge is untimely if it is based on events which occurred more than six months prior to the filing of the charge, unless the filing was delayed by service in the armed forces. See Local 1464, ATU v. City of Tampa, 17 FPER & 22012 (1990) (the Commission has specified that the six-month period is initiated when a charging party "knew or should have known" of the complained-of actions). Rubino's charge was filed on July 8, 2002. Thus, if the alleged unlawful conduct occurred prior to January 8, 2002, the charge is untimely.

It is difficult to discern from Rubino's charge when many of the incidents alleged in the charge occurred because of a lack of dates. For example, Rubino does not state when he received notice of the arbitration decision, when he learned that the City was reducing his pay by ten percent and that Local 1560 would not assist him in resolving the problem. However, from the facts in the charge it appears these events occurred prior to January 8, 2002. If so, Rubino's charge is untimely. Since I cannot determine that the charge is timely, it must be dismissed.

Accordingly, Rubino's unfair labor practice charge is SUMMARILY DISMISSED. Rubino may amend the charge or appeal the summary dismissal to the Commission. An amended charge or an appeal must be received by the Clerk of the Commission within twenty (20) days from the date of the summary dismissal. ' 447.503(2)(a), Fla. Stat. (2001); Fla. Admin. Code Rule 6000-5.002(3). An appeal to the Commission should briefly and concisely set forth the points of fact and law which Rubino claims are sufficient to establish a prima facie violation of the applicable unfair labor practice provisions.

ISSUED and MAILED to all parties this 17^TH day of July, 2002.

STEPHEN A. MECK

General Counsel

SAM/JGS/pap