VOL. XXVI  . . . . . . . . . . . . April 3, 2002 . . . . . . . . . . . . . . NO. 10

 

PART I . . . . . . . . . . . . . . . . . . . . . . . . ORDERS ISSUED BY PERC

 

**CA-2002-016; Order 02GC-082 (March 29, 2002)

BEVERLY WALKER, Charging Party,

v.

MIAMI-DADE COUNTY PUBLIC SCHOOLS, Respondent.

The General Counsel summarily dismisses the amended charge that the employer violated the Act by dismissing Walker from her employment.  The charge was originally dismissed because it did not contain a clear and concise statement of the facts constituting the alleged unfair labor practice and was not accompanied by documentary evidence sufficient to support a prima facie violation.  The amended charge indicates that it has signed and sworn statements attached, but no such documents accompanied the charge.

The amended charge contains no allegations that she engaged in any union or other concerted activity or that she was terminated from her position because she engaged in conduct described in Section 447.301.  The charge is dismissed because PERC has no jurisdiction to resolve any disputes other than those related to F.S. 447.301.

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EL-2002-003 (Relates to RC-2001-055) (April 1, 2002)

TEAMSTERS LOCAL UNION NO. 385, Petitioner,

v.

TOWN OF OAKLAND, Respondent.

Election results and order dismissing the petition to represent full-time sworn law-enforcement officers.  Six eligible voters cast three ballots against and two for the union.

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RA-2002-001; Order 02E-083 (April 1, 2002)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Petitioner,

v.

HIALEAH HOUSING AUTHORITY, Respondent.

PERC approves the voluntary recognition/acknowledgment petition and certifies unit 1355 for Council 79.  The Council becomes the exclusive bargaining agent for “regular full-time and part-time employees in the following classifications:

Accounting Clerk II, Adult Day Care Administrative Assistant, Adult Day Care Driver, Adult Care Nurse Assistant, Adult Day Care Worker, Adult Care Worker Aide, After School Care Worker, Assistant Property Manager, Assistant To Modernization Coordinator, CEI Computer Instructor, Child Day Care Worker, Child Care Worker Aide, Driver I, Driver II, HQS Inspector, Janitor, Lead Maintenance Mechanic, Maintenance Contract Clerk, Maintenance Controller Clerk, Maintenance Mechanic, Maintenance Mechanic Assistant, Maintenance Office Clerk, Maintenance Purchasing Clerk, Maintenance Warehouse Clerk, Maintenance Warehouse Control Clerk, Network Administrator Assistant/Accounting Clerk II, Office Clerk, Payroll Clerk, PH Family Self Sufficiency/Resident Initiatives Coordinator, Project Inspector, Receptionist, Section 8 Family Self Sufficiency Coordinator, Section 8 Occupancy Specialist, Section 8 Receptionist/Office Clerk, Social Worker Aide, Tenant Selector Occupancy Specialist, Utility Worker I, and Utility Worker II.”

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PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court Orders

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

“Drug-related evictions from public housing ...  Public housing authorities may evict a tenant for illegal drug activity by members of the household or their guests, even if the tenant didn't know anything about it, the U.S. Supreme Court held in a unanimous ruling.

The justices upheld a policy of the U.S. Department of Housing and Urban Development that allowed public housing authorities to fight drug trafficking by evicting tenants whose homes were used for drug activity.  The court concluded that Congress never placed any qualifications on the statute behind the policy, thereby precluding any requirement that the tenant know about the drug activity.

"(T)here is an obvious reason why Congress would have permitted local public housing authorities to conduct no-fault evictions:  Regardless of knowledge, a tenant who cannot control drug crime, or other criminal activities by a household member which threaten health or safety of other residents, is a threat to other residents and the project.  With drugs leading to murders, muggings, and other forms of violence against tenants, and to the deterioration of the physical environment that requires substantial governmental expenditures, it was reasonable for Congress to permit no-fault evictions," Chief Justice Rehnquist wrote for the court.  [Department of Housing and Urban Development v. Rucker, 3/26/02]”

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“Employment rights of illegal aliens ... Illegal immigrants who hold jobs in the United States do not have the same legal protections from being wrongly fired as American citizens do, a sharply divided U.S. Supreme Court held.

The court ruled 5-4 that an undocumented Mexican worker is not entitled to back pay after he was wrongly fired for helping to organize a union at the plastics company at which he worked.  The National Labor Relations Board concluded that the alien was entitled to almost $67,000 in back pay, but the court said such relief is foreclosed by federal immigration law.

"(A)warding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations," Chief Justice Rehnquist wrote for the majority.  "(A)Ilowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy ...  It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations."  [Hoffman Plastic Compounds v. National Labor Relations Board, 3/27/02]”

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11^th U.S. Circuit Court of Appeals

“Sex discrimination allegation against state agency ...  A lower court properly ruled in favor of a Florida state agency accused of sex discrimination, because the fired employee failed to demonstrate that her new supervisor had any discriminatory intent in terminating her, the 11^th U.S. Circuit Court of Appeals ruled.

The court rejected the appeal of Nancy Rojas, a former chief veterinary assistant with the Department of Business and Professional Regulation who was fired for unsatisfactory job performance.  Though Rojas was praised by a former supervisor as one of the best employees she had ever had, Rojas was fired by a new male supervisor for tardiness and failing to follow proper procedures directly related to her job.  Rojas alleged that her firing was motivated by sex discrimination, but the department presented evidence that the previous supervisor had noted some similar concerns with Rojas' work, the new supervisor sent a memo to all employees stressing the importance of following procedures, and a male employee was also fired for failing to follow workplace procedures.  Rojas claimed the paperwork was just a pretext to conceal the new supervisor's discriminatory motive.

"In analyzing claims like Rojas's, we must be careful not to allow Title VII plaintiffs simply to litigate whether they are, in fact, good employees.  The factual issue to be resolved is not the wisdom or accuracy of Florida's conclusion that Rojas was an unsatisfactory employee.  We are not interested in whether the conclusion is a correct one, but whether it is an honest one," the court said. "These differences in the evaluation of Rojas's performance do not establish a genuine issue on pretext.  Different supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not consider important."  [Rojas v. Department of Business and Professional Regulation, 3/22/02]”

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Florida Supreme Court

“Constitutional amendment - smoking in workplaces ...  The Florida Supreme Court cleared the path to the ballot for a proposed constitutional amendment banning smoking in enclosed workplaces, saying the proposal's summary is clear and the measure does not violate the single-subject requirement.

The amendment would prohibit smoking in all indoor workplaces other than tobacco shops, stand-alone bars and designated hotel rooms.  Also exempted would be private residences at those times they are not being used to provide commercial care to children, adults or health patients.  The amendment declares its intent to protect citizens from second-hand smoke.  The Florida Restaurant Association, a leading opponent, argued that many Floridians go to restaurants to relax and would not know from the ballot summary that restaurants would be among the enclosed workplaces affected by the amendment.  The court rejected this argument, saying Floridians will understand that restaurants are workplaces.  The justices also rejected the association's single-subject argument.

"(T)he instant proposal focuses on a single subject:  the issue of second-hand smoke in enclosed indoor workplaces.  The measure respects the legislative function by making allowance for the Legislature to enact statutes to implement the constitutional provision.  The proposal does not perform any judicial functions by adjudicating specific facts," the court said in a unanimous, unsigned opinion.  [Advisory Opinion to Attorney General Re:  Protect People from the Health Hazards of Second-hand Smoke by Prohibiting Workplace Smoking, 3/28/02] ”

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4^th District Court of Appeal

“Battery by student - intent ...  A student's battery conviction cannot stand where there is no evidence that the student intended to strike a teacher with a lighter that made contact only after it ricocheted off the floor, the 4th DCA said.

C.B., a minor, appealed his battery conviction for hitting his teacher.  C.B. argued that the state had failed to prove a prima facia case of battery.  The victim and an assistant teacher testified that C.B. threw the lighter toward the floor when the teacher asked him for it, hitting the teacher's foot only because the lighter bounced.

"(I)t is not enough to sustain a conviction that the defendant intentionally threw the lighter at the floor; the state was also required to prove that the defendant threw the lighter in such a way that it was substantially certain that it would hit the teacher's ankle," the DCA said.  [C.B. v. State, 3/20/02]” [[The website for the 4th District Court of Appeals is temporarily unavailable. If you have any questions, please call the 4th DCA at 567-242-2000.]]

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MISCELLANEOUS

Tentative Agreement Reports

FEN Calendar

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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.

The Florida School Labor Relations Service

is a joint venture of the

Florida School Boards Association

and the

Florida Association of District School Superintendents".

Its publications are designed to provide accurate and authoritative information in regard to public employee labor relations and collective bargaining.  This information is provided with the understanding that FSLRS is not engaged in rendering legal service.  If legal advice or assistance is required, contact your attorney.

==================================================================

Marcus Johnston, Executive Director

Florida School Labor Relations Service

203 South Monroe Street

Tallahassee, Florida 32301

850/414-2587 - SUNCOM 994-2587

FAX - 850/414-2585 - SUNCOM 994-2585