PLEASE COPY TO SCHOOL BOARD MEMBERS AND ADMINISTRATORS AS NEEDED
**School Board Cases
VOL. XXVII . . . . . . . . . . . June 4, 2003 . . . . . . . . . . . . . NO. 19
RC-2003-009; Order 03E-123 (May 27, 2003)
RC-2000-010; RC-2000-015; Order 03E-124 (May 27, 2003)
RA-2003-002; Order 03E-125 (May 28, 2003)
CA-2003-028; 029; 030 & 031; Order 03GC-126 (May 28, 2003)
UC-2003-006; Order 03E-127 (May 28, 2003)
AC-2003-010; Order 03E-128 (May 29, 2003)
RC-2003-014 & 015; Order 03E-129 (May 29, 2003)
CA-2003-034; 035 & 036; Order 03GC-130 (June 2, 2003)
RC-2003-009; Order 03E-123 (May 27, 2003)
WINTER SPRINGS PROFESSIONAL FIREFIGHTERS, LOCAL 3296, IAFF, Petitioner,
v.
CITY OF WINTER SPRINGS, Respondent.
PERC determines an appropriate supervisory bargaining unit and orders a secret ballot election for a unit comprised of Battalion Chief, EMS Division Chief, Fire Marshal, and Training Chief.
RC-2000-010; RC-2000-015; Order 03E-124 (May 27, 2003)
PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,
v.
SHERIFF OF PALM BEACH COUNTY, Respondent.
PERC approves the consent election agreements for a rank-and-file and supervisory bargaining unit and orders secret ballot elections for each. "RANK-AND-FILE UNIT - All full-time certified and sworn law enforcement officers below the rank of Sergeant. SUPERVISORY UNIT - All full-time certified and sworn law enforcement officers in the ranks of Sergeant and Lieutenant."
RA-2003-002; Order 03E-125 (May 28, 2003)
OVIEDO PROFESSIONAL FIREFIGHTERS, LOCAL 3476, Petitioner,
v.
CITY OF OVIEDO, Respondent.
PERC dismisses the recognition-acknowledgment petition seeking to represent a unit of supervisory fire suppression employees because the City's response to the petition demonstrated that it did not voluntarily recognize Local 3476 as the representative of a bargaining unit composed of battalion chiefs and lieutenants. Neither party filed exceptions to the recommended order.
CA-2003-028; 029; 030 & 031; Order 03GC-126 (May 28, 2003)
PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, Charging Party,
v.
CITY OF JACKSONVILLE, Respondent.
The General Counsel summarily dismisses the charges that the employer violated the Act by continuing a course of conduct in refusing to remit employees' dues deductions to PACE.
"Section 447.503(1), Florida Statutes (2002), requires an unfair labor practice charge to be supported by sworn statements and documentary evidence sufficient to establish a prima facie violation of the applicable unfair labor practice provision. The sworn statements must set forth facts of which the affiant has personal knowledge. Here, although the charges themselves are sworn to by PACE's attorney, there is no evidence to indicate that he has personal knowledge of the facts alleged in the charges. Moreover, the charge is not accompanied by a sworn statement from someone who does. Therefore, the charges are procedurally deficient and are dismissed for this reason alone.
Even if supported by someone with personal knowledge of the facts alleged as the basis of these charges, the charges are nevertheless insufficient on their merits to establish a prima facie violation. The charges all relate to the City's withholding from PACE, dues the City has deducted from those employees who are PACE members under Section 447.303, Florida Statutes (2002). On January 2, 2003, in PACE v. City of Jacksonville, case no. CA-2002-077, the Commission determined that this conduct was unlawful and ordered the City to cease and desist from withholding dues deductions. The Commission's order is currently on appeal. See City of Jacksonville v. Professional Association of City Employees, Case No. 1 D-03-388.
PACE's charges cite to language contained within the Commission's response to the Court's order to show cause why the appeal should not be dismissed because it did not appear to constitute final agency action. There, the Commission stated:
A "continuing course of conduct" is a term of art in labor law. Each month that the City refused to remit the employees' dues to PACE constitutes an independent unfair labor practice for the purpose of filing a charge.
Id. at 13 n 4.
PACE apparently construes the above language to mean that it must file a new unfair labor practice charge each month in order to preserve the remedy provided by the Commission in its order on appeal. Thus, each of PACE's four unfair labor practice charges assert that the City has deducted a certain amount of dues during the month identified in the charge and has not remitted those dues to PACE. PACE's charges are unnecessary because the Commission's final order on appeal entitles PACE to all dues collected by the City not only up until the date of the Commission's order but also to those dues it collects "prospectively." See Final Order at 9."
UC-2003-006; Order 03E-127 (May 28, 2003)
MIAMI-DADE COUNTY, FLORIDA and PUBLIC HEALTH TRUST, Petitioners,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1991, Respondent.
PERC grants Local 1991's clarification petition for unit 1149 to include the newly created classification of healthcare infection control specialists.
"Certification 1149 is amended to read: All regular full-time and regular part-time health related professional employees employed by the Jackson Memorial Hospital/Public Health Trust of Metropolitan Dade County employed as: behavioral therapist, clinical hospital pharmacist, clinical psychologist I, clinical psychologist II, clinical rehabilitation services counselor, clinical social worker, dietician I, dietician II, health educator, healthcare infection control specialist, hospital staff pharmacist, librarian, medical records practitioner, medical surgical attendant (also known as community house physician), medical technologist I, medical technologist II, occupational therapist I, occupational therapist II, physician assistant I, physician assistant II, poison information specialist, recreation therapist, social worker I, social worker II, speech and hearing clinician, sign language interpreter, training specialist I, training specialist II, transfusion technologist I, transfusion technologist II, vocational counselor, pharmacist I, physical therapist I, physical therapist (pediatrics, physical therapist II (senior), physical therapist II (senior) - pediatrics, nuclear medicine technologist I, and nuclear medicine technologist II."
AC-2003-010; Order 03E-128 (May 29, 2003)
IN RE: PETITION OF THE CITY OF DANIA BEACH, FLORIDA, TO AMEND CERTIFICATION NO. 590.
PERC grants the City's petition to amend certification 590 to reflect the name of the employer as the City of Dania Beach.
RC-2003-014 & 015; Order 03E-129 (May 29, 2003)
PINELLAS LODGE NO. 43, INC., Petitioner,
v.
PINELLAS COUNTY SHERIFF'S OFFICE, Respondent.
PINELLAS LODGE NO. 43, INC., Petitioner,
v.
PINELLAS COUNTY SHERIFF'S OFFICE, Respondent,
v.
PINELLAS COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Intervenor.
PERC finds the petition for a rank-and-file unit and a supervisory unit sufficient, approves the consent collection agreements and orders an election for each. "Rank-and-File Unit - All full-time, regular, certified and sworn law enforcement officers in the classifications of Deputy, Corporal, Bailiff-Deputy, and Bailiff-Corporal. Supervisory Unit - All full-time, regular, certified and sworn law enforcement officers in the classifications of Sergeant, Lieutenant, Bailiff-Sergeant, and Bailiff-Lieutenant."
CA-2003-034; 035 & 036; Order 03GC-130 (June 2, 2003)
COMMUNICATION WORKERS OF AMERICA, LOCAL 3178, Charging Party,
v.
CITY OF MIAMI BEACH, Respondent.
The General Counsel summarily dismisses the charges that the employer violated the Act by refusing to discuss grievances in good-faith pursuant to the terms of a collective bargaining agreement and retaliating against the union having filed multiple grievances by using subcontracted labor to perform bargaining unit work.
"...Florida Administrative Code Rule 6000-5.001(5), requires a charge to be accompanied by a sworn statement(s) setting forth facts in which the affiant has personal knowledge, and where applicable, documentary evidence sufficient to support a prima facie violation. The charges filed in these cases fail to state that the attorney filing them has personal knowledge of the facts alleged. Moreover, they are not supported by affidavits from those with personal knowledge. Therefore, they are procedurally deficient.
Furthermore, 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. As stated by the Commission in United Faculty of Florida v. Board of Regents, 8 FPER ¶ 13187 at 338 (1982):
While a charge need not set forth every detail of the alleged illegal conduct, it must be sufficiently detailed to indicate who were the individuals involved, what happened, and when and where it happened. Setting forth such matters in a "clear and concise statement" is required by Section 447.503(1).
See Fla. Admin. Code Rule 6000-5.001(1) through (3).
"...Although the filing of collective bargaining grievances is protected, concerted activity within the meaning of Section 447.301, Florida Statutes (2002), in the absence of allegations and evidence of objective facts establishing a nexus between the protected conduct and the alleged retaliatory action, there is no basis for inferring that the use of subcontract labor and change in shift hours was motivated by Local 3178's protected conduct. See Hogan v. City of Hollywood, 12 FPER ¶ 17304 (1986) (G.C. Summary Dismissal) aff'd, 12 FPER ¶ 173+42 (1986). Proximate timing between the filing of the grievances and the alleged retaliation is insufficient, by itself, to establish a nexus between the protected activity and the alleged retaliatory actions. E.g., Federation of Public Employees v. City of Coral Springs, 5 FPER ¶ 10388 (1979).
Finally, the charge alleges that Buttacavoli intentionally furnished Local 3178's representatives with false information during a grievance meeting. Whether information advanced in proof of a party's position during the grievance process is true or false is a matter for an arbitrator, and not the Commission, to decide.
Even if furnishing false information during the grievance process would be violative of Section 447.501(1)(f), Florida Statutes, the charge's conclusional statements relating to Buttacavoli's intent and whether the information she furnished is false are insufficient to establish a prima facie violation. Rather, the charge must contain factual allegations from which it may be reasonably inferred that the information Buttacavoli furnished was false, that she was aware of its falsity, and that she nevertheless furnished it to Local 3178 with an intent to deceive. Such proof necessarily would require Local 3178 to furnish a copy of the allegedly false information as a supporting document. See § 447.503(1), Fla. Stat. (2002); Fla. Admin. Code Rule 6000-5.001."
[From Attorney General's Appellate Alert]
"State employee's suit under FMLA... State employees may recover money damages in federal court if their state fails to comply with family care provisions of the Family and Medical Leave Act of 1993, the U.S. Supreme Court held.
The court said Congress may abrogate states' Eleventh Amendment immunity from suit in federal court if it makes its intention to do so unmistakably clear in the language of the statute. The 6-3 ruling came despite the court's recent trend in favor of states in a series of federalism decisions. The decision was a victory for Nevada welfare worker William Hibbs, who was fired after taking leave to care for his wife, who was seriously injured in a car accident. Hibbs sued in federal court claiming the state did not allow him the full 12 weeks of family leave required by the federal law. A trial court said Nevada was immune from the lawsuit, but an appeals court reversed and the Supreme Court agreed. Writing for the majority, Chief Justice Rehnquist noted that the court recognized a history of discrimination when it approved the abrogation of state sovereignty contained within Title VII of the Civil Rights Act of 1964, and said the same reasoning applies where states have relied on invalid gender stereotypes in the employment context.
"By creating an across-the-board, routine employment benefit for all eligible
employees, Congress sought to ensure that family-care leave would no longer
be stigmatized as an inordinate drain on the workplace caused by female employees,
and that employers could not evade leave obligations simply by hiring men. By
setting a minimum standard of family leave for all eligible employees,
irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype
that only women are responsible for family caregiving, thereby reducing employers'
incentives to engage in discrimination by basing hiring and promotion decisions
on stereotypes," the Chief Justice wrote.
[Nevada Department of Human Resources v. Hibbs, 5/27/03]"
"Denial of unemployment benefits... A one-time outburst in which an employee left a profanity-laced message on a supervisor's voicemail does not amount to misconduct sufficient to deny him unemployment benefits, the 2nd DCA said.
The court said the outburst may have been sufficient for the employer to fire Walter Bivens from his job as a telemarketing sales representative, but did not sink to the level of misconduct required to deny unemployment compensation. The court noted that in the voicemail message, which was available only to the supervisor, Bivens did not use the profanities to call the supervisor names but instead used them to refer to the work in general.
"A single incident of poor judgment or loss of self-control is not 'misconduct' under the statute.
Moreover, misbehavior serious enough to warrant an employee's dismissal is not necessarily serious enough to warrant
the forfeiture of unemployment compensation benefits," the DCA said. "Mr. Bivens' loss of control on this
occasion was an isolated incident."
[Bivens v. Trugreen LP and Unemployment Appeals Commission,
5/23/03]"
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