VOL. XXV  . . . . . . . . . . . . . October 3, 2001 . . . . . . . . . . . . . . . . NO. 34

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

AC-2001-025;Order 01E-251(September 25, 2001)

IN RE:  JOINT PETITION OF FLORIDA BOARD OF EDUCATION and FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, TO AMEND CERTIFICATION NO. 730.

AUpon consideration of the petition and for the reasons stated by the hearing officer, we agree that the petition should be granted...  Accordingly, certification 730 is amended to designate the Florida Board of Education as the public employer.@

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CA-2001-051;Order 01GC-252(September 27, 2001)

TIMOTHY MASON, Charging Party,

v.

DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by how it acted in the filing of a false charge of sexual harassment.

AThe Commission's unfair labor practice jurisdiction is limited to considering violations of Section 447.501, Florida Statutes.  Hence, that portion of the charge alleging a violation of Section 110.227, Florida Statutes, is dismissed because that statutory provision does not describe unfair labor practices...

... The charge does not identify the complaining employee or who authorized the written reprimand and the transfer.  In addition, a copy of the written reprimand and transfer order did not accompany the charge...

...  Even if the charge were factually specific, it would still be deficient.  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 rights set forth in Section

447.301, Florida Statutes, the Commission lacks jurisdiction to remedy that action,

whatever it may be.@

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CA-2001-050;Order 01GC-253(September 27, 2001)

SEIU, LOCAL 362, Charging Party,

v.

ORANGE COUNTY LIBRARY SYSTEM, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by assigning clerical duties to bargaining unit members when they opted to work a Sunday in which the library was closed.

AThere is no evidence that the assignments were made to discourage union membership or to discriminate against the librarians because of their protests concerning the assignments:  First, the assignments took place prior to the complaints about the assignments.  Therefore, there could be no discrimination based upon the complaints.  Secondly, although the assignments were unusual and considered menial by the librarians, it is admitted in the charge that shelf reading has been performed in the past when there was no pressing work to do and there was a need for the work to be performed.  Thirdly, the agreement did not indicate the work to be performed on a day when the Library was closed.  Finally, there is no causal relationship between the work assigned and union membership, other than the fact that all of the persons that chose to work on September 2 happened to be union members.  There is no evidence of anti-union animus and the fact that this work was to be accomplished pursuant to a newly implemented collective bargaining agreement does not, standing alone, indicate that the assignments were for a discriminatory reason.  Accordingly, there is no indication that

the assignments were utilized to discourage membership in Local 362.@

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RC-2001-037;Order 01E-254(September 27, 2001)

OCOEE PROFESSIONAL FIREFIGHTERS, LOCAL 3623, Petitioner,

v.

CITY OF OCOEE, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for AAll full-time employees of the City of Ocoee in the following classifications: Fire Lieutenant and Fire Inspector.@

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AC-2001-029;Order 01E-255(September 27, 2001)

IN RE:  JOINT PETITION OF FLORIDA BOARD OF EDUCATION AND FLORIDA NURSES ASSOCIATION, INC., TO AMEND CERTIFICATION NO. 734.

AUpon consideration of the petition and for the reasons stated by the hearing officer, we agree that the petition should be granted.  Accordingly, certification 734 is amended to designate the Florida Board of Education as the public employer.@

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CA-2001-042;Order 01U-256(September 27, 2001)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, Charging Party,

v.

STATE OF FLORIDA, JOHN ELLIS "JEB" BUSH AS GOVERNOR, Respondent.

PERC stays the case.

AThe facts of this case are largely undisputed.  Council 79 is the collective bargaining representative for certain employees that have career service status.  Section 15, Chapter 2001-43, Laws of Florida, recodified Section 110.205(2), Florida Statutes, by exempting additional employee categories from the State's career service system.  See ' 110.205(2)(v), Fla. Stat. (2001).  The effect of this legislation allegedly removes approximately seven thousand of the seventy thousand state career service system employees from bargaining units represented by Council 79.

On August 2, 2001, Council 79 filed a civil action in the Circuit Court for the

Second Judicial Circuit in Leon County, Florida.  Florida Public Employees Council 79 AFSCME v. John Ellis "Jeb" Bush as Governor of the State of Florida, No. 01-1900EA.  This lawsuit seeks temporary and permanent injunctive relief, and a writ of mandamus,

and a declaration that Chapter 2001-43 and the provisions of the General Appropriations

Act pertaining to a bargaining impasse between Council 79 and the State are facially

unconstitutional...

... Council 79 has expressly attacked the underlying validity of the Service First statutes in its lawsuit cited above, including the provision involved in the instant case that removes managerial, confidential, and supervisory employees from the career service system.  It is both prudent and necessary for the Commission to defer its jurisdiction until the resolution of that matter by the appropriate court of competent jurisdiction.@

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UC-2001-043;Order 01E-257(October 1, 2001)

SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS, LOCAL 1826, IAFF, INC., Petitioner,

v.

FORT MYERS BEACH FIRE CONTROL DISTRICT, Respondent.

PERC grants Local 1826's exception to placement of deputy chiefs and remands the case to the hearing officer.

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PART II . . . . . . . . . . . . . . . . . . . . . . . COURT ORDERS

[From Attorney General=s Appellate Alert]

First District Court of Appeal

AImproper termination of university professor...  A state university improperly disregarded the findings of an administrative law judge when it rejected a recommended order and fired a veteran professor accused of sexual harassment by a student, the 1^st DCA held.

The DCA said Florida A&M University should not have substituted its own judgment for that of the administrative law judge, who evaluated the credibility of the witnesses and chose to accept the testimony of the professor over that of the student.  The DCA said the judge's findings of fact and reasonable inferences from those facts were based on competent substantial evidence, and should stand.

"(T)he weighing of evidence and judging of the credibility of witnesses by the Administrative Law Judge are solely the prerogative of the Administrative Law Judge as finder of fact, particularly in this proceeding where the allegation of sexual harassment is ultimately a question of fact not infused with policy considerations," the DCA said.  "in this proceeding, where the allegation of sexual harassment is ultimately a question of fact, (university officials) rejected essentially all of the principal findings of fact ... and substituted their own interpretation of the facts to arrive at a conclusion supporting dismissal." [Strickland v. Florida A &M University, 9/13/01]@

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Third District Court of Appeal

ALoss of unemployment benefit due to part-time job...  Concluding that the Legislature was "misinformed" when it amended Florida's unemployment law in 1999, the 3^RD DCA took the unusual step of proposing specific amendatory language to remedy the problem.

The DCA reluctantly affirmed the Unemployment Appeals Commission's determination that a former long-time bank employee, Lynn Rochussen, is not entitled to unemployment compensation benefits.  Rochussen worked for the bank for more than 15 years before being laid off, and spent six weeks in a part-time job after her severance package ran out and she still had not found a suitable replacement.  The commission said that under the 1999 law, the part-time job must be counted and therefore Rochussen cannot receive benefits based on her work at the bank.  The DCA said the statute resulted in a "harsh result" but agreed the law does work against Rochussen by denying benefits for anyone who quits a part-time job.  The DCA said that in denying benefits to workers who leave part-time jobs, lawmakers failed to recognize situations in which a person takes on a part-time job because he or she is unemployed but then discovers that the part-time job interferes with the search for suitable fulltime employment.  The court suggested that the Legislature could fix the problem by clarifying that benefits will not be lost because of part-time work "accepted by the individual after unemployed from full-time work or in anticipation of such employment."

"It seems inconceivable that any legislator would actually have intended to forfeit Ms. Rochussen's right to unemployment benefits relating to her job at the bank simply because she attempted to aid her family and maintain her own self-respect by taking a part time job that just did not work out," the DCA said.  "Unless and until the legislature amends the statute, people who are unemployed from full-time jobs should be warned that they should never accept a part-time job while searching for a full-time job unless they are completely certain that they will never quit the part-time job before finding suitable employment.  Thus, with our regrets to Ms. Rochussen, we affirm the decision of the UAC."  [[opinion not on line]Rochussen v. Unemployment Appeal Commission, 9/21/01]@

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Fourth District Court of Appeal

AConstitutionality of statute prohibiting hate speech...  An anti-hate statute that prohibits publications that tend to expose persons to hatred, contempt or ridicule unconstitutionally violates the First Amendment, the 4^th DCA held.

The state appealed an order dismissing charges against Lloyd Shank for violating section 836.11, F.S.  In 1999, members of the Broward County Commission received an anonymous letter containing anti-Semitic comments.  Shank was arrested after admitting to a detective that he wrote the letter, but the trial court found that the statute violated the First Amendment because it was impermissibly content-based, overbroad and vague.  The DCA agreed.

"Section 836.11 is not content-neutral.  The statute criminalizes speech based solely on content, i.e., speech that criticizes or ridicules is targeted, while other >nice= publications that praise or promote approval, admiration, or commendation are not penalized," the DCA said.  "The statute, in essence, is regulating good manners."  [State v. Shank, 9/19/01]@

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Fifth District Court of Appeal

**APERC consideration of employee's claim against union...  The Public Employees Relations Commission, rather than a circuit court, is the proper forum to consider a public employee's claim that her labor union breached its duty to represent her in a dispute with her public employer, the 5^th DCA said.