OFFICIAL PEUBLICATION OF THE FLORIDA SCHOOL LABOR RELATIONS SERVICE
OFFICIAL PEUBLICATION OF THE O R D E R
S U M M A R Y
PLEASE COPY TO SCHOOL BOARD MEMBERS
AND
ADMINISTRATORS AS NEEDED.
**School Board
Cases
VOL. XXV . . . . . . . . . . . . December 5, 2001 . .
. . . . . . . . . . . . NO. 42
PART I. . . . . . . . . . .
. . . . . . . . . . . . . ORDERS ISSUED BY PERC
EL-2001-047 (Relates to
RC-2001-044);Order 01E-300(November 20, 2001)
FLORIDA POLICE BENEVOLENT
ASSOCIATION, INC., AFFILIATED WITH THE NATIONAL COALITION OF PUBLIC SAFETY
OFFICERS, A DIVISION OF THE COMMUNICATIONS: WORKERS OF AMERICA, Petitioner,
v.
SARASOTA COUNTY SHERIFF'S
OFFICE, Respondent.
A... the parties filed a
joint motion requesting an on-site election.
As grounds the parties assert that they desire to complete the election
prior to the end of the calendar year and the busy holiday season when employees
are likely to take leave. In addition,
the parties assert that the mail may be delayed due to the holiday season.@
PERC grants the petition
for no inside election.
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CA-2001-061;CB-2001-027;Order
01GC-301(November 26, 2001
STEVEN CARROLL, Charging
Party,
v.
CITY OF TAMPA, Respondent.
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STEVEN CARROLL, Charging
Party,
v.
WEST COAST POLICE
BENEVOLENT ASSOCIATION, Respondent.
The General Counsel
summarily dismisses the charge that the employer and the union violated the Act
by bargaining in bad faith Ain the manner in which the parties negotiated an
agreement which provides a 40 percent increase of pension benefits for current employees
and neglects to do the same for retired employees.@
AIt has been established for
20 years that retirement benefits for corn employees of a public employer is
Amanda rate mandatory topic terms and conditions of employment and the subject
to the duty of good faith negotiations.
See City of Tallahassee vs. PERC, 410 So.2d 47 (Fla. 1981).
However, while retirement
benefits of current employees may be may be a term and condition of employment
subject to the duty of bargaining, the same may not be said for benefits
afforded to retired employees.@
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CB-2001-030;Order
01GC-302(November 26, 2001)
WESSELL A. CLARKE, Charging
Party,
v.
TRANSPORT WORKERS UNION OF AMERICA,
LOCAL 291, Respondent.
The General Counsel
summarily dismisses the charge that the union violated the Act by ruling Clarke
out of order at a meeting of the union when he asked certain questions of the
leadership. No evidence was submitted
indicating that the union had been noticed of the charge and the charge was not
notarized.
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**RC-2001-047;Order
01E-303(November 26, 2001)
MANATEE COUNTY AND MUNICIPAL
EMPLOYEES, LOCAL 1584, AFSCME,
AFL-CIO, Petitioner,
v.
MANATEE COUNTY SCHOOL
BOARD, Respondent.
PERC denies the Board=s Aunopposed motion requesting
a stay of the proceedings in this case until the First District Court of Appeal
resolves the appeal in Manatee County and Municipal Employees, Local 1584,
AFSCME, AFL-CIO v._ School Board of Manatee County, Case No. UC-2001-016
(Fla. PERC September 17, 2001), appeal filed, No. 01 E-243 (Fla. 1st
DCA filed Oct. 17, 2001).
In similar circumstances,
the Commission has consistently rejected the notion that the expenditure of
time and money is in itself a sufficient justification to state commission
orders pending appeal, except in extraordinary circumstances.@
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**RC-2001-014:Order
01E-304(November 26, 2001)
DADE COUNTY SCHOOL
ADMINISTRATORS' ASSOCIATION, LOCAL 77, AFSA,
AFL-CIO, Petitioner,
v.
THE SCHOOL BOARD OF
MIAMI-DADE COUNTY, FLORIDA, Respondent,
v.
DADE ASSOCIATION OF SCHOOL
ADMINISTRATORS, Intervenor.
PERC dismisses the petition
to certify a unit of principals, assistant principals and other managerial
employees.
AOnce the record established
the presumption that the AP=s are managerial employees, than Local 77 was
obligated to elicit evidence to rebut or dispel it if it believed
otherwise. it was provided this
opportunity during a three-day evidentiary hearing and failed to do so. This is not an impermissible shift of its
evidentiary burden as Local 77 asserts...
One of the questions posed
by the commission when applying the managerial factors in section 447.203(4) to
employees duties: is their contribution
to the public employer so essential that their constitutional rights must be
sacrificed to ensure the continuous, unimpeded conduct of government and
collective bargaining. In re Orlando
Professional Firefighters, Local 1365, 7 FPER & 12372 at 808 (1981) rev.
denied, 412 So.2d 406 (Fla. 5th DCA 1982). Upon the record established in this case,
the hearing officer answered the question in the affirmative. We agree.@
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**CA-2000-028;Order
01U-305(November 27, 2001)
TEAMSTERS LOCAL UNION NO.
769, Charging Party,
v.
MIAMI-DADE COUNTY PUBLIC
SCHOOLS, Respondent.
The union=s charge that the school
board violated the Act by refusing to honor a settlement agreement regarding
disciplinary action was summarily dismissed by the General Counsel. Local 769 did not appeal that dismissal to
the Commission. The charge was stayed
to allow Local 769 to pursue a disciplinary administrative hearing.. That stay
is lifted and the hearing officer=s recommend order is
adopted, and , the case is dismissed.
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EL-2001-045 (Relates to
RC-2001-037)(November 27, 2001)
OCOEE PROFESSIONAL
FIREFIGHTERS, LOCAL 3623, Petitioner,
v.
CITY OF OCOEE, Respondent.
Election results and order
certifying unit 1350 or Florida Lieutenants and Fire Inspectors. Ten eligible voters cast 10 votes for the
union.
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RC-2001-054;Order
01E-306(November 30, 2001)
SERVICE & BUSINESS
WORKERS OF AMERICA, LOCAL 125, USWA, TCU,
AFL-CIO, CLC, Petitioner,
v.
TOWN OF PALM BEACH SHORES,
Respondent.
PERC dismisses the petition
seeking to represent a single classification of police dispatchers employed by
the town. The petition is dismissed
because it would result in a violation of the Commission=s over-fragmentation
policy.
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CB-2001-026;Order
01U-307(November 30, 2001)
DAVID GREEN Charging Party,
v.
TRANSPORT WORKERS UNION,
LOCAL 291, AFL-CIO, Respondent.
The General Counsel
summarily dismisses the charge that the union violated the Act by reclassifying
Green to the position of rail structural inspection specialist. The charge was untimely because the events
in the complaint took place more than ten years ago.
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CA-2001-057;Order
01U-308(November 30, 2001)
DAVID GREEN, MIKE GRAHAM,
and WILLIAM MORGAN, Charging Parties,
v.
MIAMI-DADE COUNTY,
Respondent.
PERC affirms the General
Counsel=s summary dismissal of the
charge that the employer violated the Act when it A 1) denied their requests
to work overtime on welding assignments;
2) consistently gave overtime to Paul Peavy, even though it is aware
that the Charging Parties have more seniority than he and are qualified to
perform the welding assignments; and 3)
violated "Article V.29 of the Collective Bargaining Agreement" by
failing to offer overtime equally...
First, the General Counsel
concluded that the Charging Parties failed to set forth in detail the factual
particulars underlying the charge.
Second, a review of the documents filed by the Charging Parties failed
to reveal that they engaged in protected, concerted activity. Third, the Charging Parties had no standing
to raise a refusal to bargain charged against the county. Fourth, the Charging Parties offered no
evidence demonstrating that the county had prohibited them from using the
contractual agreement procedure.@
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CA-2001-066;Order
01GC-309(December 3, 2001)
JACKSONVILLE SUPERVISORS
ASSOCIATION, INC., Charging Party,
v.
CITY OF JACKSONVILLE,
Respondent.
The General Counsel
summarily dismisses the charge that the employer violated the Act by refusing
to bargain in good faith by unilaterally changing insurance coverage provided
to employees and their dependents.
AThe Commission has
established that employee health insurance programs are Aterms and conditions of
employment@ within the meaning of section 447.309, Florida Statutes,
which requires the employer to bargain with the certified bargaining agent if
the employer wishes to change the provisions of those plans.@ According to the charge and supporting documents the city has
complied with its contractual obligations.
There is no evidence that the city is not paying 50 percent of the actual
cost of comprehensive medical coverage for eligible dependents.
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EL-2001-043 (Relates to
RC-2001-033)(December 3, 2001)
LOCAL 1749, AMALGAMATED
TRANSIT UNION, AFL-CIO, CLC, Petitioner,
v.
CENTRAL FLORIDA REGIONAL
TRANSPORTATION AUTHORITY D/B/A
LYNX, Respondent.
Election results and order
certifying unit 1351 for: ATransportation
supervisors-street, transportation supervisors-radio/dispatch, transportation
supervisors-administration, maintenance supervisor facilities, maintenance
supervisor-body shop, maintenance supervisors-service island, and maintenance
supervisors.@ 44 eligible voters
cast 36 ballots for entry against the union.
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CA-2001-063;Order
01GC-310(December 3, 2001)
MARJORIE B. WARDLOW,
Charging Party,
v.
STATE OF FLORIDA,
DEPARTMENT OF REVENUE, Respondent.
The General Counsel
summarily dismisses the amended charge that the employer violated the Act by
the reiterated following allegations:
AThis order addresses an
amendment to a previously dismissed unfair labor
practice charge. For background, I repeat the original
dismissal order, in pertinent part.
Wardlow asserts the following. She was subpoenaed to testify on behalf of a
co-worker in a career service system case pending before the Public Employees
Relations Commission. She further
states that the attorney for the Department of Revenue vigorously
cross-examined her with a "barrage of questions." Specifically, he inquired about her work
record, low sick leave balance, grievances and prior discipline history. Wardlow contends the attorney's actions
created a hostile work environment for her, caused co-workers to be afraid to
associate with her, and that her supervisor "walks on eggshells"
around her.
A public employee who
testifies at a Commission hearing may not be punished or harassed solely
because of giving truthful testimony. ' 447.501(1)(d), Fla. Stat. An unfair labor practice charge is the
appropriate tool to remedy retaliation against the witness. E.q. Salazar v. Department of
Transportation, 25 FPER & 30108 (G.C. Sum. Dism. 1999).
However, Wardlow has failed
to provide any facts supporting her inference that counsel's vigorous
cross-examination resulted in any retaliation or discrimination against her in
the workplace. A charge must be
supported by facts establishing reasonable cause to believe a violation of law
has occurred. E.g. Pasco County School
Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977). Ambiguous circumstances and statements do
not justify referring a charge for a hearing.@
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PART II . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . Court Orders
[From Attorney General=s Appellate Alert]
11th U.S.
Circuit Court of Appeals
**ADesegregation of Duval County
schools... The public school system in Florida's Duval
County is sufficiently desegregated to end almost four decades of court
supervision, a divided 11th U.S. Circuit Court of Appeals held.
In a 2-1 decision from
which former Florida Supreme Court Justice Rosemary Barkett dissented, the
court concluded the county has achieved so-called "unitary"
status. A lower court imposed judicial
supervision in 1963 when it determined that Duval County was operating a de
jure dual school system in which black and white children were required to
attend separate schools. A trial judge
in 1999 determined that students in the county are being treated equally,
regardless of race, but the NAACP appealed.
The 11th Circuit ruled against the organization, but warned
that the school system must remain diligent in maintaining desegregation.
"(W)e conclude that
the judgment from which the appeal is taken is due to be affirmed. An affirmance implies that appellants have
lost. In a meaningful way, however, that
implication is not justified here. This
judgment means that appellants have accomplished what they, decades ago, set
out to do. They challenged a rigidly
maintained, de jure system of school segregation and sued to bring it
into compliance with the constitutional requirement of equal protection under
the law. We say today that they have
succeeded. If this judgment is counted
as a loss for appellants, it is so because they have won," the court said.
"Furthermore, none
should read more into this judgment than it contains. With its implementation, the Duval County school system may be
out of the courthouse, but it is not out of the reach of the Constitution, the
Bill of Rights, and the laws of this land.
Nothing in this judgment authorizes conduct contrary to these laws. The Board, and the people of Duval County
who, in the end, govern their school system, must be aware that the door
through which they leave the courthouse is not locked behind them. They will undoubtedly find that this is so
if they fail to maintain the unitary system we conclude exists today," the
court added. [NAACP, Jacksonville
Branch, v. Duval County Schools, 11/19/01]@
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AFamily and Medical Leave Act -
former employees... The language of
the Family and Medical Leave Act is ambiguous enough to allow an interpretation
that protects former employees, not just active employees, from discrimination
in hiring decisions, the 11th U.S. Circuit Court of Appeals held.
Addressing an issue of
first impression in the circuit, the court concluded that a worker who alleges
that his former employer retaliated against him in its decision not to rehire
him should be considered an "employee" under the enforcement provisions
of the act. The 11th Circuit
reversed a trial court's determination that an Alabama man lacked standing to
bring suit because the FMLA allows a private right of action only for
individuals who suffer adverse action while they are employed. Arthur Smith, who used leave under the FMLA
while employed by BellSouth, resigned his position with the company but later
reapplied with the company. The company
refused to rehire him because of his previous poor attendance record. Smith sued under FMLA, but the trial court
held that the law's protections applied only to "employees" and Smith
was not an employee at the time the company declined to rehire him. Determining the statutory language to be
clear, the trial court gave no effect to a U.S. Department of Labor regulation
designed to prevent employers from using an employee's past FMLA leave as a
negative factor in hiring decisions.
The 11th th Circuit, however, concluded that ambiguity in the
law means the agency's regulation is not unreasonable.
The FMLA was meant to
balance the demands of the workplace with the needs of families by ensuring the
availability of "reasonable leave" for employees who need time for
health or family reasons. If former employees
like Smith knew they would have no remedy if their former employers retaliated
against them for their past use of FMLA leave, it would tend to chill
employees' willingness to exercise their protected leave rights and would work
against the purpose of the FMLA," the 11th Circuit said. [Smith v. BellSouth Telecommunications, Inc., 11/27/01]@
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Attorney General's Opinions
**AVacancy in office - school district
renumbering... In response to a request
from the Martin County School Board attorney, the Attorney General issued an
advisory opinion stating in sum:
"The mere renumbering of school board member residence areas to
coincide with those of county commission residence districts does not result in
a violation of the residence requirements for school board members pursuant to
section 230.061, Florida Statutes.
Thus, no vacancy in office would result from the reassignment of number
designations for any such district."
[AGO-2009-80, 11/19/01]"
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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