VOL. XXV          April 4, 2001          NO. 12

 

PART I. ORDERS ISSUED BY PERC

 

Case No. UC-2000-031; Order 01E-078 (March 28, 2001)

FEDERATION OF PUBLIC EMPLOYEES, A DIVISION OF THE NATIONAL FEDERATION OF PUBLIC AND PRIVATE EMPLOYEES (AFL-CIO), Petitioner,

v.

CITY OF COCONUT CREEK, Respondent.

The petition to clarify unit number 1078 seeking to include 26 positions is dismissed.  The outcome of an election, which the union lost, rendered the petition moot and thereby deficient.

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CA-2001-016; Order 01U-079 (March 30, 2001)

EDWARD J. BROWN, Charging Party,

v.

CITY OF PORT ST. LUCIE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by failing to bargain in good faith.  That portion of the charge alleging a violation for discharging Brown for leading and participating in protected activity [picketing] is found sufficient and ordered to an evidentiary hearing.

AThe salient facts as alleged by the charge are as follows.  In late September 2000, the Costal Florida Police Benevolent Association (PBA) held a meeting with City employees for the purpose of endeavoring to organize those employees for representational purposes.  Brown attended this meeting and received information.  Thereafter, Brown went to work and spoke to co-workers at appropriate times about the PBA's organizational efforts.  Brown encouraged co-workers to be present for an informational picketing at an upcoming City Council meeting, on or about October 30, 2000.  Brown participated in the picketing, which was a topic of television and newspaper reports.  Brown's picture was shown both on the television and newspaper reports.  Despite previously receiving above average performance evaluations, Brown was discharged on November 8, 2000.

The foregoing may indicate a violation of Section 447.501(1) (a) and (b), Florida Statutes.  See Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1^st DCA 1977).  However, these facts do not indicate an unlawful refusal to bargain within the meaning of Section 447.501(1) (c), Florida Statutes.@

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PART II   Court Orders

              [From Attorney General=s Appellate Alert]

Florida Supreme Court

AState agency's primary jurisdiction ...  Former Governor Claude Kirk's complaint over pollution from sugar cane farming in the Florida Everglades should have gone through state administrative agencies before being heard in court, a unanimous Florida Supreme Court held.

The court ruled that even though a public nuisance cause of action was available for the former Governor's complaint, the doctrine of primary jurisdiction suggests that an administrative agency with the "experience and expertise" to deal with the complex issues of the case B in this instance, the Department of Environmental Protection B should have reviewed the issues first.  Kirk's complaint alleged that sugar growers have maintained a public nuisance by cultivating, harvesting and processing sugar cane in a manner that annoys the community and injures public health.  The complaint alleged that due to the government's "complicity in the offensive conduct," only the courts had the authority and independence to abate the nuisance.  The Supreme Court rejected the complicity argument, and said that under the doctrine of primary jurisdiction the case should go through administrative channels before it reaches the courts.

"(T)he doctrine of primary jurisdiction does not serve to divest the circuit court of jurisdiction; it merely counsels that when issues arise which have been placed within the special competence of an administrative body, the court should practice judicial restraint," Justice Lewis wrote for the court.  "(Kirk's) allegations may be appropriately characterized as little more than general and vague allusions relating to a governmental conspiracy propelled by campaign contributions.  In short, the allegations in the amended complaint do not sufficiently set forth ultimate facts that agency errors are egregious or devastating and that the APA provides no recourse.  ... Accepting these generalized allegations facially as sufficient would require an extension of logic to the extreme that, not only are the administrative agencies and independent administrative law judges corrupt, but also that district court judges B  who are in the position to review the decisions of the agencies and administrative judges B are also somehow part of this conspiracy."  [Flo-Sun, Inc., et al., vs. Kirk, et al., 3/29/01]@

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3rd District Court of Appeal

**AWorker's comp immunity - unrelated works exception ...  A public school teacher who was attacked in the teacher's parking lot during her lunch break lost her chance to sue the school board when she accepted worker's compensation for her injuries, the 3^rd DCA said.

The court rejected the teacher's contention that the "unrelated works" exception to worker's compensation immunity should apply.  The teacher argued that she could sue because the school's security personnel were engaged in unrelated works even though they both worked at the school.

The DCA noted that it held in 1999's Dade County School Board vs. Laing that a teacher and a school custodian are both engaged in activities primarily related to the provision of education-related services and so the exception does not apply.  "We see no distinction between the teacher-custodian relationship in Laing and the teacher­-security personnel relationship in this case," the DCA said.  [[No on line link available]Sanchez vs. Dade County School Board, 3/28/01]@

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Attorney General's Opinions

**AOpen records - charter schools ...  In response to a request from the attorney for the Okaloosa County School Board, the Attorney General issued an advisory opinion stating in sum:  "The records and meetings of a not-for-profit corporation granted charter school status are subject to the requirements of Chapter 119, Florida Statutes, and section 286.011, Florida Statutes, even though the charter school has not yet opened its doors to students."  AGO-2001-23, 3/23/01]@

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**ASovereign immunity - transportation of students ...  In response to a request from the executive director of legal services for Seminole County Public Schools, the Attorney General issued an advisory opinion stating in sum:  "Section 234.02, Florida Statutes, makes the school board liable for claims arising from incidents where an employee or volunteer has been authorized by the board to transport students by private automobile and does not authorize the board to seek reimbursement from the individual's private insurer, if the individual acts within the scope of his or her employment or function."  [AGO-2001-24, 3/28/01]@

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Part VII. 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.

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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