PLEASE COPY TO SCHOOL BOARD MEMBERS AND ADMINISTRATORS AS NEEDED
**School Board Cases
VOL. XXVII . . . . . . . . . . . April 30, 2003. . . . . . . . . . . . . NO. 15
CB-2002-031 - 034; Order 03U-081 (April 15, 2003)
RC-2002-066; Order 03E-082 (April 15, 2003)
AC-2003-008; Order 03E-083 (April 16, 2003)
AC-2003-001 - 004: Order 03E-084 (March 14, 2003)
CA-2003-021; Order 03GC-085 (April 22 2003)
CA-2003-019; Order 03GC-086 (April 22, 2003)
CA-2003-020; Order 03GC-087 (April 22, 2003)
EL-2003-012 (Relates to RC-2002-061); Order 03E-088 (April 23, 2003)
RC-2003-035; Order 03E-089 (April 24, 2003)
EL-2003-011 (Relates to RC-2002-068); Order 03E-090 (April 24, 2003)
RC-2002-079; Order 03E-091 (April 24,2003)
RC-2002-065; Order 03E-092 (April 24, 2003)
RD-2003-001; Order 03E-093 (April 24, 2003)
RC-2002-082; Order 03E-094 (April 25, 2003)
EL-2003-008 (Relates to RC-2002-051) (April 25, 2003)
CA-2003-023; Order 03GC-095 (April 25, 2003)
CB-2002-026; Order 03U-096 (April 28, 2003)
RA-2003-001; Order 03E-097 (April 28, 2003)
CB-2002-031 - 034; Order 03U-081 (April 15, 2003)
RICHARD C. ARENA, WILLIAM D. SHELLY, PETER R. CULLEN, and LOUIS V. TAFUTO, Charging Parties,
v.
COLLIER SUPPORT PERSONNEL-NEA, Respondent.
PERC finds that the union violated the Act by failing to respond to and comply with Charging Parties' requests to inspect the CSP's income and expense accounts pursuant to Section 447.305(5), Florida Statutes.
"Upon a review of the complete record, the Commission finds that the hearing officer's findings of fact are supported by competent substantial evidence received in a proceeding that satisfies the essential requirements of law. Accordingly, we adopt the hearing officer's findings of fact... Furthermore, we agree with the hearing officer's analysis of the dispositive legal issues, her conclusions of law, and her recommendations...the Commission ORDERS the CSP to:
Cease and desist from:
1. Failing to permit the Charging Parties to inspect its income and expense accounts;
2. In any like or related manner, failing to keep its income and expense accounts open for inspection at all reasonable times by any CSP member as required by Section 447.305(5), Florida Statutes.
3. In any like or related manner, interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under Chapter 447, Part II, Florida Statutes."
RC-2002-066; Order 03E-082 (April 15, 2003)
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO, LOCAL UNION 1010, AN AFFILIATE OF DISTRICT COUNCIL 78, Petitioner,
v.
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent,
v.
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 517, AFL-CIO, Intervenor.
PERC dismisses the petition to represent a unit of riggers.
"Local 1010 also asserts that its proposed exhibits discredit the hearing testimony of County supervisors. This assertion, along with that alleging the County had, until recently, failed to address rigger health and safety concerns, demonstrates to Local 1010 that a conflict of interest exists between the riggers and their supervisors. On the contrary, the proposed exhibits are not in material variance with the testimony of County supervisors credited by the hearing officer. Furthermore, we fail to understand how any conflict of interest between the riggers and their supervisors based upon previously unaddressed interests in health and safety issues provides justification for a rigger-only bargaining unit. Riggers will be subject to the same supervision regardless of whether they bargain in their own unit or in a unit comprised of other County operational services employees.
Any conflict of interest that would justify a fragmented bargaining unit limited to riggers must necessarily be between the riggers and other members of a more comprehensive bargaining unit into which the riggers would otherwise be appropriately included. This conflict has not been shown upon the record here."
AC-2003-008; Order 03E-083 (April 16, 2003)
IN RE: PETITION OF FRATERNAL ORDER OF POLICE, CLEARWATER LODGE #10, INC., TO AMEND CERTIFICATION NO. 239.
PERC grants the unopposed petition to amend certification 239 to reflect Lodge #10 as the certified bargaining agent.
AC-2003-001 - 004: Order 03E-084 (March 14, 2003)
IN RE: PETITION OF FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, TO AMEND CERTIFICATION NOS. 730, 731, 732, AND 733.
PERC dismisses the petition to amend the certifications to substitute the Board of Governors for the Board of Education as the exclusive bargaining agent for these units. We agree that the local boards of trustees are the public employers for these bargaining units.
"AFSCME contends that since the statute was enacted when the legislative boards existed, it cannot be held to confer public employer status on the existing constitutional boards.
We are not persuaded by this argument. The statute clearly and unambiguously stipulates, "[T]he university board of trustees shall be deemed to be the public employer with respect to all public employees of the respective state university." § 447.203(2), Fla. Stat. This statement is not qualified in any manner that would suggest that it pertains only to boards created by legislative fiat and not constitutional amendment. In construing a statute, "we look first to the statute's plain meaning." Moonlit Waters Apartment, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996). Furthermore, "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 2d 157,159 (Fla. 1931)).
Thus, although AFSCME urges us to interpret Section 447.203(2) in light of legislative and constitutional history, such recourse to interpretative aids is not appropriate where, as here, the statute is clear and unambiguous on its face. Consequently, we conclude that Section 447.203(2) designates the boards of trustees as the public employers of the public employees at their institutions. Until, and unless, this statute is repealed by the legislature or invalidated by a court of competent jurisdiction, we are bound to recognize the boards of trustees as the public employers of university personnel, without distinction as to when or how those boards were created... [w]e note that because we find that the legislature has designated the boards of trustees as the public employer for purposes of collective bargaining, through Section 447.203(2), a resolution conferring that status on the boards is superfluous. Accordingly, any defect in the Board of Governors' resolution would have no effect on the boards of trustees' employer status."
CA-2003-021; Order 03GC-085 (April 22 2003)
LEON SZCZEPANSKI, Charging Party,
v.
MIAMI-DADE COUNTY PUBLIC SCHOOLS, Respondent.
The General Counsel summarily dismisses the charge that the employer violated the Act by terminating Szczepanski because it illegally circumvented the current collective bargaining agreement's grievance procedure for disciplinary actions.
"The scope of the Commission's jurisdiction over disputes between public employees and their employer is limited to ensuring that the rights provided employees by Chapter 447, Part II, Florida Statutes, are not abridged.... If a charge fails to allege that the violative action was taken as a result of the charging party's exercise of these rights, then the Commission lacks jurisdiction to remedy that action, whatever it may be. See School Board of Lee County, Florida v. Lee County School Board Employees, Local 780, AFSCME, 512 So. 2d 238 (Fla. 1st DCA 1987). Even assuming that the School Board does not reappoint Szczepanski and that such non-reappointment constitutes a "termination," his charge is devoid of any allegation that the School Board interfered with, restrained, or coerced him with regard to some union activity or some other protected concerted activity."
CA-2003-019; Order 03GC-086 (April 22, 2003)
SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS AND PARAMEDICS, LOCAL 1826, IAFF, INC., Charging Party,
v.
COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
The General Counsel summarily dismisses the charge that the employer violated the Act by individually negotiating with selected employees over wages which conflicted with the collective bargaining agreement.
"I conclude that the charge does not establish a prima facie violation of law. Local 1826's charge is procedurally deficient and is dismissed for this reason. The Commission has consistently recognized that due process requires that an unfair labor practice charge be factually detailed and specific. Charges which contain allegations that are vague, general, or conclusional will not be found sufficient."
CA-2003-020; Order 03GC-087 (April 22, 2003)
SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS AND PARAMEDICS, LOCAL 1826, IAFF, INC., Charging Party,
v.
ESTERO FIRE RESCUE, Respondent.
The General Counsel summarily dismisses the charge that the employer violated the Act by changing the lieutenant promotion procedure and refusing to bargain over the changes or impact of the change.
"The instant charge is vague and conclusional in that there is not sufficient evidence of when and how the promotion procedure was changed. While some of this information may be discernible from the supporting documents, a factually deficient charge cannot be cured by resorting to the supporting documents. See Sarasota CTA v. School Board of Sarasota County, 14 FPER ¶ 19010 (G.C. Summary Dismissal 1987).
Furthermore, even if the supporting documentation is considered, Local 1826 has failed to show a prima facie violation. It is an unlawful refusal to bargain to change the status quo of a mandatory item of bargaining without providing opportunity to bargain before implementing the changes. E.g., The Florida School for the Deaf and the Blind Teachers United v. The Florida School for the Deaf and Blind, 11 FPER ¶ 16080 (1985), affd, 483 So.2d 58 (Fla. 1st DCA 1986). The status quo of a term and condition of employment may be established either through an explicit contractual provision or an existing past practice. See Central Florida Professional Fire Fighters v. Board of County Commissioners of Orange County, 9 FPER ¶ 14372 (1983), affd, 467 So. 2d 1023 (Fla. 5th DCA 1985)."
EL-2003-012 (Relates to RC-2002-061); Order 03E-088 (April 23, 2003)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner,
v.
HERNANDO COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
"The Commission will issue absentee ballots to employees when their absence from an election is necessitated by the performance of work-related duties. Amalgamated Transit Union Local 1395, AFL-CIO v. Escambia County Board of County Commissioners, 27 FPER ¶ 32175 (2001). Furthermore, even though the Respondent has failed to comply with Florida Administrative Code Rule 28106.204(3), requiring it to state whether the other party has an objection to the motion, we nevertheless grant the motion in view of the short period of time remaining before the May 1 election."
RC-2003-035; Order 03E-089 (April 24, 2003)
WEST CENTRAL FLORIDA POLICE BENEVOLENT ASSOCIATION, Petitioner,
v.
HILLSBOROUGH COUNTY SHERIFF'S OFFICE, Respondent.
Petition is dismissed because the showing of interest is defective. Two registered employee organizations are noted on different showing of interest cards, consequently the cards are invalid.
EL-2003-011 (Relates to RC-2002-068); Order 03E-090 (April 24, 2003)
NATIONAL CONFERENCE OF FIREMEN & OILERS/SEIU, LOCAL 1227, AFL-CIO, Petitioner,
v.
TOWN OF JUPITER, Respondent.
PERC issues absentee ballots for 6 employees.
RC-2002-079; Order 03E-091 (April 24,2003)
UNITED FACULTY OF FLORIDA, Petitioner,
v.
UNIVERSITY OF WEST FLORIDA BOARD OF TRUSTEES, Respondent.
PERC determines an appropriate bargaining unit composed of "All employees in the following position classifications holding regular, visiting, provisional, research, affiliate, or joint appointments: 9001 - professor; 9002 - associate professor and program director for international education and programs; 9003 - assistant professor; 9004 - instructor; 9005 - lecturer; 9009 - eminent scholar; 9053 - librarian; 9054 - associate librarian; 9055 - assistant librarian; 9121 - assistant in ____ ; 9161 - associate scholar/scientist/engineer; 9166 - research associate; 9173 - counselor/advisor; 9199 - counselor/advisor, and employees in the above classifications with the following administrative titles: coordinator (N1), program director (G1), associate program director (G2), and counselor/advisor (B1)." A secret ballot election is ordered.
RC-2002-065; Order 03E-092 (April 24, 2003)
KISSIMMEE PROFESSIONAL FIREFIGHTERS, LOCAL 4208, Petitioner,
v.
CITY OF KISSIMMEE, Respondent.
PERC determines two appropriate units and orders secret ballot elections for them:
Rank-and-File Unit - INCLUDED: All full-time certified firefighters in the job classifications of Engineer, Firefighter/EMT, and Firefighter/Paramedic.
Supervisory Unit - INCLUDED: All full-time certified firefighters in the job classifications of EMS Supervisor and Lieutenant.
RD-2003-001; Order 03E-093 (April 24, 2003)
LEONARD SCHERRY, Petitioner,
v.
CITRUS, CANNERY, FOOD PROCESSING & ALLIED WORKERS, DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION #173, Respondent,
v.
CITY OF SARASOTA, Intervenor.
PERC dismisses the petition to decertify unit 1064. "The hearing officer found that the showing of interest is improper because the petition is ambiguous regarding the intent of the signatories."
RC-2002-082; Order 03E-094 (April 25, 2003)
TEAMSTERS LOCAL UNION 385, Petitioner,
v.
OSCEOLA COUNTY SCHOOL DISTRICT, Respondent,
v.
OSCEOLA CLASSROOM TEACHERS ASSOCIATION, Intervenor.
PERC finds the petition to represent a blue-collar unit sufficient and orders a secret ballot election. "Included: All full and regular part-time employees in the following job classes: Custodian, AC Mechanic, Bus Aide, Bus Driver, Bus Driver Trainer, Carpenter, Electrician, Equipment Mechanic, Food Service Worker, Gardner, Lead Worker-Maintenance, Lead Worker-Transportation, Lunch Room Aide, Maintenance Worker, Mason, Mechanic, Mechanic Helper, Offset Pressman, Painter, Parts Employee, Pest Control Worker, Plumber, Roofer, Maintenance Specialist, Shipping/Receiving Clerk, Warehouseman, Welder, and Fire Alarm Technician."
EL-2003-008 (Relates to RC-2002-051) (April 25, 2003)
FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Petitioner,
v.
CITY OF PENSACOLA, Respondent.
Election results and order certifying unit 1390 for: "All probationary and full-time employees of the City of Pensacola in the classification of police officer." 115 eligible voters cast 73 ballots for and 41 against the union.
CA-2003-023; Order 03GC-095 (April 25, 2003)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, Charging Party,
v.
HERNANDO COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
The General Counsel summarily dismisses the charge that the employer violated the Act by having the County's pre-election campaign literature being factually inaccurate and intended to enlist employees to withdraw or abandon their support of the union.
"AFSCME has failed to prove a prima facie violation of Section 447.501(1)(a), Florida Statutes. AFSCME also alleges that the County violated Section 447.501(1)(e), Florida Statutes. This statutory provision prohibits a public employer from "dominating, interfering with, or assisting in the formation, existence, or administration of, any employee organization or contributing financial support to such an organization." The type of interference prohibited by this subsection is directed toward employer entanglement or influence upon an employee organization's internal affairs, such as officer selection, membership criteria, policy decisions, or other intra-union activities.... AFSCME's charge must be dismissed because there is no allegation that the County has become entangled in AFSCME's internal affairs or exerted improper influence over AFSCME's intra-union activities."
CB-2002-026; Order 03U-096 (April 28, 2003)
EMILIO AZOY, Charging Party,
v.
AFSCME, LOCAL 121, Respondent.
PERC adopts the Hearing Officer's recommended order and finds that the union did not violate the Act by breaching its duty of fair representation when it settled Azoy's grievance at arbitration "...[b]ecause the grievance, seeking recognition and money from Azoy's county employer for a cost-saving measure allegedly developed by Azoy, was not covered by the collective bargaining agreement."
RA-2003-001; Order 03E-097 (April 28, 2003)
UNITED FACULTY OF FLORIDA, Petitioner,
v.
UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, Respondent.
PERC grants certification 1391 after voluntary recognition by the public employer.
"INCLUDED: All employees in the following position classifications holding regular, visiting, provisional, research, affiliate, or joint appointments: 9001 - Professor; 9002 - Associate Professor; 9003 - Assistant Professor; 9004 - Instructor; 9005 - Lecturer; 9006 - Graduate Research Professor; 9007 - Distinguished Service Professor; 9009 - Eminent Scholar; 9016 - University School Professor; 9017 - University School Associate Professor; 9018 - University School Assistant Professor; 9019 - University School Instructor; 9053 - University Librarian; 9054 - Associate University Librarian; 9055 - Assistant University Librarian; 9056 - Instructor Librarian; 9115 - Coordinator; 9120 - Associate in _____; 9121 - Assistant in _____; 9126 - Program Director; 9150 - Curator; 9151- Associate Curator; 9152 - Assistant Curator; 9153 - Staff Physicist; 9160 - Scholar/Scientist/Engineer; 9161 -Associate Scholar/Scientist/Engineer; 9162 - Assistant Scholar/Scientist/Engineer; 9166 - Research Associate; 9173 - Counselor/Advisor; 9178 - Instructional Specialist; 9334 - Specialist, Computer Research; 9394 - Coordinator, Cooperative Education; 9419 - Coordinator, Research Information; 9433 - Specialist, Music; 9434 - Psychologist; 9435 - Resident Advisor to Students; 9460 - Psychiatrist; 9462 - Physician; 9464 - Physician's Assistant; 9490 - Dentist; 9495 - Specialist, Student Counseling. And employees in the above classifications with the following administrative titles: Associate Chair (C2), Assistant Chair (C3), Coordinator (N1), Program Director (G1 ), Associate Program Director (G2), Assistant Program Director (G3), Department Head (H1), Associate Department Head (H2), Assistant Department Head (H3), and Counselor/Advisor (B1)."
[ From Attorney General's Appellate Alert]
"Whistle-blower - temporary reinstatement of state employee... A former state worker is entitled to temporary reinstatement under the WhistleBlower's Act because her letter of resignation - presented to her as the only alternative to a letter of termination - amounted to an actual discharge, the 1st DCA held.
Mavis Georgalis, a manager for the Department of Transportation, was called into a meeting and shown two letters, one submitting her resignation and the other advising her that her services were no longer needed. Georgalis accepted the resignation, she said, only in response to coercion. She then filed a whistle-blower complaint claiming she was fired because she participated in a complaint made by a contractor under her supervision. The Florida Commission on Human Relations concluded that Georgalis' departure from DOT was an actual discharge and requested her temporary reinstatement while the case remained pending. A trial court granted the request and the DCA affirmed, rejecting DOT's arguments that Georgalis resigned and was not discharged and that she was not entitled to temporary relief because the commission failed to follow statutory time periods for providing notice. The court noted that the statute does not provide any remedies when the commission fails to meet the time periods.
"The time periods contained within the statute constitute directions to FCHR to
expeditiously handle complaints and seek relief for the complainant where it is
warranted. It does not serve the legislative purpose to preclude a complaining employee from obtaining relief
based upon FCHR's failure to follow statutory directives," the DCA
said.
[Department of Transportation v.
Florida Commission on Human Relations and Georgalis, 4/10/03]"
"Private vs. public whistleblower act... The fact that a private business that operates under a contract with the state is "subject to" the public whistleblower act does not eliminate a wrongly fired worker's right to take advantage of the private whistleblower act, which offers a broader statute of limitations, the 2nd DCA held.
The court ruled in favor of Elaine Dahl, who was fired from her job as a psychologist with Eckerd Youth Development Center, a private rehabilitative school for juvenile offenders that operated pursuant to a contract with the Department of Juvenile Justice. Dahl claimed she was fired for reporting various violations by her coworkers and supervisors. Eckerd argued that because it operated under state contract, the provisions of the public whistleblower act applied, leaving Dahl with just 180 days to file her complaint. The DCA, however, said Dahl is also entitled to utilize the private whistleblower act, which allows two years to file.
"The only reason for finding that Ms. Dahl's complaint does not state a cause of action
under the private-sector act is that Eckerd was an independent contractor
of a state agency and thus fell within the public-sector act. Nowhere, however, does the public-sector
act provide that it is the exclusive remedy for employees of independent
contractors of state agencies who are retaliated against for their
whistleblowing activities. To the contrary, both of these statutes are remedial and should be broadly
construed. The most important relationship they speak to is that between the employer and the employee; the
fact that the employer might be an independent contractor of the state is
incidental and does not exclude the employer's actions from the private-sector
whistleblower act," the DCA said.
[Dahl v. Eckerd Family Youth Alternatives,
Inc., 4/16/03]"
"School zones on roads where traffic light located... In response to a request from state
Representative Mike Davis, the Attorney General issued an advisory opinion
stating: 'I am of the opinion that section 316.1895(8), Florida Statutes,
does not preclude the coexistence of a traffic control device and a designated
school zone on a highway or street adjacent to a school.'
[
AGO-2003-014,4/16/03]"
DS-2003-001
In Re: Petition for Declaratory Statement of the School Board of Monroe County, Florida and United Teachers of Monroe
"Whether the Monroe County School Board or the Big Pine Neighborhood Charter School, Inc., is the public employer of the public employees of the school for benefit eligibility purposes when the conversion charter school's charter contract provides that it is the public employer and will take all required action under Chapter 447 to be recognized as such?"
CITATION DISCLAIMER - This summary should not be cited. For that purpose, the cases may be acquired by contacting FSLRS, PERC, FEN district representatives, FPELRA representatives, jurisdiction labor relations officers or their attorneys for particular cases.
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