VOL. XXVI  . . . . . . . . . . . . June 5, 2002 . . . . . . . . . . . . . . NO. 18

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

 

CA-2002-037; Order 02GC-144 (May 28, 2002)

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 678, AFL-CIO, Charging Party,

v.

GREATER ORLANDO AVIATION AUTHORITY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by unilaterally determining who may attain access into secure areas.  The General Counsel rules that the public employer may make that determination unilaterally.

AThis question must be answered in the affirmative.  Cf.  Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818 (1988) (no right of civil service appeal for revocation of security clearance).  Although not previously addressed by the Commission, this reasonably appears to be a standard of service within the parameters of Section 447.209, Florida Statutes (2001).  As recognized by the Florida Supreme Court, the Commission must balance collective bargaining rights with the rights of the public employer to insure the safety of citizens.  In considering this balance, the Supreme Court emphasized a concern for public employees entrusted with the public's safety.  See Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d 31 (Fla. 1992), approving, 571 So. 2d 1309 (Fla. 3rd DCA 1989), rev'q en banc, 12 FPER

& 17029 (1989).  The Court in City of Miami held that a standard management rights provision should be read to allow a public employer to require elevated safeguards for public safety in a time of emergency.  City of Miami, 609 So. 2d at 34-35.@

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CA-2002-039; Order 02GC-145 (May 30, 2002)

OLEAN MWAURA, Charging Party,

v.

STATE OF FLORIDA, DEPARTMENT OF HEALTH, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by unfairly evaluating Mwaura.

The charge was not sworn to by someone having personal knowledge of the alleged events, was not on a PERC form nor was it served on the employer.

Further, AThe charge is vague because it fails to explain the significance of receiving a "two" on the evaluation.  The charge is also deficient because it does not include any dates.  In the absence of any dates, I cannot determine whether the charge is timely.  Even if I consider the substance of Mwaura's letter, the charge is 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.@

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CA-2002-040; Order 02GC-146 (May 31, 2002)

FEDERATION OF PUBLIC EMPLOYEES, A DIVISION OF THE NATIONAL FEDERATION OF PUBLIC AND PRIVATE EMPLOYEES, AFL-CIO, Charging Party,

v.

STATE OF FLORIDA, DEPARTMENT            OF LOTTERY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to grant lottery a sales representative=s request for union representation during and investigatory interview that lead to the employee=s dismissal. The charge is untimely.

AThe charge is deficient because there is no evidence in the charge or supporting documents to support the conclusion that an investigatory interview occurred.  The documentary evidence presented in support of the unfair labor practice charge is an affidavit by Robledo.  According to that affidavit, Robledo was called into District Manager Andy Mompeller's office, notified of a below performance standards rating, and was immediately terminated for underperformance.  There is no evidence in the affidavit to support the charge's conclusion that an investigatory interview occurred.@

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

[From Attorney General=s Appellate Alert]

5^th District Court of Appeal

AIncompetent worker's entitlement to unemployment benefits ...  A fired worker is entitled to unemployment benefits if his termination was the result of his incompetence as long as he did not commit misconduct, the 5^th DCA said.

The court reversed a decision by the Unemployment Appeals Commission, which affirmed a referee's finding that Herbert Fisher was disqualified from receiving benefits.  The referee determined that Fisher was fired for misconduct connected with work.  Fisher argued that the record clearly showed he was not discharged for misconduct as it is defined in statutes, and the DCA agreed.

"The Employment Termination Report in this case shows that Fisher was discharged from employment because of incompetence rather than misconduct ... The report of the Agency for Workforce Innovation shows the reason for Fisher's termination was >inability to perform the work,=" the DCA said.  "We agree with the appellant that the instant record reflects incompetence, not misconduct."  [Fisher v. Unemployment Appeals Commission, 5/24/02]@

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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.

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