VOL. XXVI  . . . . . . . . . . September 4, 1002 . . . . . . . . . . . . . . NO. 26

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

 

CA-2002-062; Order 02GC-203 (August 27, 2002)

MAMIE JACKSON, Charging Party,

v.

LEON COUNTY SHERIFF'S OFFICE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by revoking Jackson=s law enforcement certification and decreasing her salary because of her failure to qualify with a firearm.  The charge is insufficient because it does not contain any statement of the facts constituting the alleged unfair labor practice, nor does it have any supporting documentation that concisely states the charge and the facts related to the charge.

ANotwithstanding these procedural deficiencies, I will consider the merits of Jackson=s allegation that the sheriff=s office engaged in an unfair labor practice by revoking her law enforcement certification because she failed to qualify with a firearm.  The scope of the Commission=s jurisdiction over disputes between a public employee and employer is limited to ensuring that the rights provided employees by Chapter 447, Part II, are not abridged.@

Her allegation that she lost her law enforcement certification for failing to qualify with a firearm does not affect the collective interests of unit members and is not an allegation that she engaged in any union or other concerted activity.

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CA-2002-065; Order 02GC-204 (August 27, 2002)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Charging Party,

v.

THE CITY OF DAYTONA BEACH, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by failing to process nine grievances when the city manager failed to respond to step 2 and AFSCME was required to advance the grievances to step 3.

AIf a grievance procedure is not followed, the complaining party must demonstrate that this failure to follow the specific procedure prejudiced his ability to have the grievance reviewed.  In a similar case where management and formally discussed the grievance with the grievant, but did not formally respond in writing at each step of the process, the court refused to order a remedy because there was no prejudice to the outcome of the grievance.  Housing Authority of City of Tampa vs. Robinson, 4664 So.2d 158 (Fla.  2^nd DCA 1983), rev. den.  475 So.2d 695 (Fla.  1985).@

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**VP-2001-011, 012, 013, 014 and 015; Order 02VP-205 (August 27, 2002)

ANDREA J.B. CAGLE, Complainant,

v.

ST. JOHNS COUNTY SCHOOL DISTRICT, Respondent.

AOn December 18, the hearing officer issued his recommended order concluding that Cagle's veteran's preference expired before she applied for any positions with the School District by virtue of her continuous employment with the Duval County School District (Duval School District) since acquiring her preference in 1996 ...

On March 13, the Commission rejected the hearing officer's conclusion that Cagle's employment preference expired and ruled that Section 295.101, Florida Statutes (2002), does not extinguish Cagle's preference because she was not eligible for a prefer­ence when she applied for and was hired by the Duval School District.  Therefore, the Commission granted Cagle's exceptions and remanded the case to the hearing officer to conduct an evidentiary hearing and issue a supplemental recommended order regarding the merits of Cagle's veteran's preference complaints ...

On July 9, the hearing officer issued his supplemental recommended order concluding that the School District violated Chapter 295, Florida Statutes (2002), by failing to offer Cagle any of the five positions for which she applied.  As a remedy, he recommended that the Commission direct the School District to offer Cagle one of the five positions and reimburse her for costs she expended in furtherance of her complaints.  The hearing officer recommended against an award of lost wages, because Cagle has been employed throughout the complaint process by the Duval School District ...

Inasmuch as Cagle has prevailed in these complaints, we direct the School District to pay the "costs of all work, including litigation," incurred by Cagle during the prosecution of these complaints and Cagle's lost wages and benefits.  In addition, if Cagle believes she is due any lost wages and benefits after offset of her interim earnings from the Duval School District, she is directed to file a statement of alleged lost wages and benefits and provide a copy of the same to the School District.@

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RC-2002-017; Order 02E-206 (August 29, 2002)

FEDERATION OF PHYSICIANS AND DENTISTS/ALLIANCE OF HEALTHCARE AND PROFESSIONAL EMPLOYEES, Petitioner,

v.

JEB BUSH, GOVERNOR OF THE STATE OF FLORIDA, Respondent.

PERC determines an appropriate bargaining unit, finding that jointly stipulated confidential and managerial exclusions are supported by the record, and orders a secret ballot election for nonprofessional supervising employees.

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EL-2002-021 (Relates to RC-2002-013) (August 30, 2002)

FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

CITY OF CLEWISTON, Respondent.

Election results and order dismissing the petition to represent part-time sworn law-enforcement employees in the classification of police officer, detective/investigator, and corporal.

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

[From Attorney General=s Appellate Alert]

1^st District Court of Appeals

ABoard's entitlement to immunity ...  The Florida Board of Education is not entitled to absolute or qualified immunity from a federal civil rights claim because those protections are available only to individual officials, the 1^st DCA said.

The court rejected the board's appeal of a trial court decision that the board is not entitled to the kind of immunity it raised in defense of a civil rights claim.  The DCA noted that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vii) B which the board relied on B specifically limits its application in federal civil rights claims to absolute or qualified immunity.  The board as an entity, however, is entitled only to the "constitutional design" immunity protected by the Eleventh Amendment.

"The Board is obviously not an individual official lacking entitlement to constitutional design immunity.  Accordingly, because the rule does not provide a basis for our exercise of jurisdiction, ... this appeal is dismissed," the DCA said.  [Board of Education v. Azer and Samaan, 8/28/02]@

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AUnemployment benefits - resignation as strategy ...  Employees who threaten to resign unless their boss is fired, and then have that offer accepted, are not entitled to unemployment benefits because their status is not attributable to the employer, the 1^st DCA said.

The court ruled against four health care providers who, in the midst of contract negotiations with the health center where they worked, sent a letter indicating they were resigning unless the center's chief executive officer was terminated.  The health center, Project Health, accepted the resignation letter, and the four providers lost their jobs when the CEO was not terminated and the resignation date arrived.  The DCA said there is no evidence that the providers' termination demand was a counteroffer in the contract negotiations, and therefore their unemployment arose because Project Health refused to fire its CEO and not because of any contract-related demands by the health center. 

"Accordingly, the Providers voluntarily left their employment without good cause attributable to Project Health and are disqualified for benefits," the DCA concluded.  [Project Health, Inc., v. Unemployment Appeals Commission, et al., 8/28/02]@

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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.

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is a joint venture of the

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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

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