VOL. XXVI  . . . . . . . . . . . . March 6, 2002 . . . . . . . . . . . . . . NO. 08

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

 

WB-2002-001; Order 02WB-057 (February 27, 2002)

RAYMOND F. MILLS, Complainant,

v.

DEPARTMENT OF CORRECTIONS, Respondent.

PERC affirms the General Counsel’s summary dismissal of the charge that the employer violated the Act by dismissing Mills for whistle-blowing activity.  “The commission cannot infer that Mills’s whistle-blower activity motivated the Agency to dismiss him solely from his arguments that its articulated legitimate, non discriminatory reasons for his dismissal were pretext ... such an inference requires independent evidence of an unlawful motive establishing a causal connection between the protected activity and the subsequent disciplinary action.  See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).”

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RC-2001-059; Order 02E-058 (February 28, 2002)

COCOA FIREFIGHTERS ASSOCIATION, LOCAL 2416, IAFF, Petitioner,

v.

CITY OF COCOA BEACH, Respondent.

PERC approves the consent election agreement and order a secret ballot election for a unit of Battalion Chiefs.

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CA-2002-017; Order 02GC-059 (February 28, 2002)

COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION, Charging Party,

v.

FLAGLER COUNTY SHERIFF'S OFFICE, Respondent,

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to process two grievances through the procedure provided by the parties’ collective bargaining agreement.  “Evidence submitted indicates that the two grievances in question have not been prevented from being filed for arbitration.  In fact, it suggests that arbitration is pending.”

That portion of the charge alleging threats against the PBA member for filing the grievances and for his membership and affiliation with the PBA is found sufficient and ordered to an evidentiary hearing.

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**RC-2001-060; Order 02E-060 (March 5, 2002)

WALTON COUNTY EDUCATION ASSOCIATION, Petitioner,

v.

WALTON COUNTY SCHOOL BOARD, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for a unit of non instructional employees.

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RD-2002-002; Order 02E-061 (March 5, LOCAL 3557)

CHARLES V. BURNEY, Petitioner,

v.

DeFUNIAK SPRINGS PROFESSIONAL FIREFIGHTERS ASSOCIATION, Respondent,

v.

CITY OF DeFUNIAK SPRINGS, Intervenor.

PERC accepts Local 3557's disclaimer of interest and revokes certification 1069.

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RC-2002-011; Order 02E-062 (March 5, 2002)

PROFESSIONAL MANAGERS & SUPERVISORS ASSOCIATION, A DIVISION OF FEDERATION OF PHYSICIANS AND DENTISTS/ ALLIANCE OF HEALTHCARE AND PROFESSIONAL EMPLOYEES, NUHHCE, AFSCME, AFL-CIO, Petitioner,

v.

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

PERC dismisses the petition because the petitioner is not registered, showing of interest did not meet the 30 percent requirement, and the petitioner failed to list all classifications to be included in the proposed unit.

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

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

“Sovereign immunity B limitations on suits against states ... People who sue state and federal court are not entitled to have the statute of limitations later extended by the federal supplemental jurisdiction statute because that would violate the states sovereign immunity, the U.S. Supreme Court ruled.

The court ruled 6-3 against two former University of Minnesota employees who sued the state alleging the school tried to force them to accept early retirement in violation of the Age Discrimination in Employment Act.  The workers sued in federal court, and after that suit was dismissed they filed in state court.  The workers claimed the federal supplemental jurisdiction statute gave them an extra 30 days to file even though the state statute of limitations had expired.  The Supreme Court said the federal law does not stop the limitations period for state law claims asserted against unwilling state defendants dismissed on Eleventh Amendment grounds.

"(A)Ithough we have not directly addressed whether federal tolling of a state statute of limitations constitutes an abrogation of state sovereign immunity with respect to claims against state defendants, we can say that the notion at least raises a serious constitutional doubt," Justice O'Connor wrote for the court. "(A)Ilowing federal law to extend the time period in which a state sovereign is amenable to suit in its own courts at least affects the federal balance in an area that has been a historic power of the States, whether or not it constitutes an abrogation of state sovereign immunity."  [Raygor v. Regents of University of Minnesota, 2/27/02]”

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“Standards for employment discrimination complaints ...  An employment discrimination claim need not contain specific facts establishing a prima facie case of discrimination, but must only contain a "short and plain" statement of the claim showing that the worker is entitled to relief, the U.S. Supreme Court held.

The court ruled unanimously in favor of a New York man who alleged that he had been fired as a result of discrimination based on his age and national origin.  Citing the Supreme Court's 1972 McDonnell Douglas case, lower courts dismissed the claim because the worker's complaint did not include enough documentation to support his allegations.  The Supreme Court reversed, saying the McDonnell Douglas requirement is an evidentiary standard rather than a requirement for pleadings.  To hold otherwise, the court said, would force the plaintiff into a position of having to prove much of the case in a complaint before conducting discovery.

"This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss,"  Justice Thomas wrote for the court.  "(The employer) argues that allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits.  Whatever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits."  [Swierkiewicz v. Sorema N.A., 2/26/02]”

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1^st District Court of Appeal

“Challenge to "Talented 20" rules ...  The 1^st DCA rejected a legal challenge to Governor Jeb Bush's "Talented 20" education plan, concluding that the plaintiffs lacked standing to challenge the plan.  The NAACP, along with African-American high school sophomore Keith Garvin and his mother Mattie, challenged rule amendments adopted by the Florida Board of Regents and the State Board of Education implementing "Talented 20," which guaranteed university admission to students in the top 20 percent of their high school graduating class.  Without ruling on the merits of the challenge, the DCA concluded in a 2-1 decision that none of the appellants had standing to bring the rule challenge because they would not suffer "a real and sufficiently immediate injury of fact" due to the new rules.

"On the contrary, the evidence indicates that, at his current rate of academic progress, Keith will be eligible for admission regardless of the impact that any of the challenged amendments might have.  Moreover, because Keith had two more years of high school to complete, any claimed injury would not be ‘real and sufficiently immediate’ but, rather, would rest upon rank speculation," the DCA said.  [NAACP, Inc., and Garvin v. Florida Board of Regents and State Board of Education, 2/26/02]”

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Attorney General's Opinions

“Use of public funds for organization memberships ...  In response to a  request from the Polk County Clerk of the Circuit Court, the Attorney General issued an advisory opinion (stating in sum:  "County funds may be used by the supervisor of elections to purchase memberships in local chambers of commerce, and to pay related expenses for attending meetings of the chambers and other community organizations in order to carry out the legislative mandate to the office of the supervisor to develop public-private programs to ensure the recruitment of skilled clerks and inspectors." [AGO-2002-16, 2/22/02]”

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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