VOL. XXV  . . . . . . . . . . . . . November 7, 2001 . . . . . . . . . . . . . . . . NO. 39

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

 

CA-2001-035;Order 01U-279(October 30, 2001)

ALTAMONTE SPRINGS PROFESSIONAL FIREFIGHTERS, LOCAL 3988, Charging Party,      

v.

CITY OF ALTAMONTE SPRINGS, Respondent.

PERC orders the Respondent to pay to the Charging Party attorney's fees in the amount of $3,022.25.

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CA-2001-057;Order 01GC-280(October 31, 2001)

DAVID GREEN, MIKE GRAHAM AND WILLIAM MORGAN, Charging Parties,

v.

MIAMI-DADE COUNTY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to honor requests for overtime.

AFlorida Administrative Code Rule 60C-5.001 require a charge to contain a clear and concise statement of the facts constituting the alleged unfair labor practice and to be accompanied by documentary evidence sufficient to support a prima facie violation.  The requisite facts, which must be contained within the charge itself, must include the names of the individuals involved in the alleged unfair labor practice, and the time and place of occurrence of the particular acts giving rise to the dispute...

Moreover, 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.  If a charge fails to allege that the violative action was taken as a result of the charging party's exercise rights set forth in 447.301 F.S., the Commission lacks jurisdiction to remedy that action, whatever it may be.@

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CB-2001-026;Ordre 01GC-281(October 31, 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 Aunfairly treating@ Green when he was reclassified to the position of rail structural inspection specialist.

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CB-2001-023;Order 01GC-282(October 31, 2001)

DANIEL C. SYKES, Charging Party,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION / NATIONAL CONFERENCE OF FIREMEN AND OILERS, LOCAL 1220, Respondent.

The General Counsel summarily dismisses the charge that the union violated the Act by failing to properly represent him during the processing of a grievance.

AInasmuch as Sykes has not provided either a copy of his grievance with the collective can bargaining agreement under which it may have been filed, the charge does not establish that he filed a contract will grievance who subject matter is arguably covered by the agreement.  Therefore, Sykes has not satisfied the threshold requirement for establishing a breach of the union=s duty to represent him fairly during the grievance process.

Even if Sykes= grievance was filed pursuant to the union contract in the subject matter of the grievance is arguably covered by the contract, the charge is nevertheless insufficient to establish a pro facie violation because it fails to provide facts showing that local 1220's processing of Sykes is grievance was arbitrary, discriminatory, or in bad faith.@

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RD-2001-006;Order 01E-283(November 1, 2001)

PATTI KING-SKINNER, Petitioner,

v.

AFSCME FLORIDA COUNCIL 79,  Respondent,

                  v.

CITY OF DeFUNIAK SPRING, Intervenor.

PERC dismisses the petition seeking to revoke the certification of AFSCME for a comprehensive unit of employees.  Neither party excepted to the hearing officer=s order.

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

[From Attorney General=s Appellate Alert]

3^rd District Court of Appeal

APublic records - private entity hired by public agency...  A consortium of private businesses created to perform a massive government contract must turn over records sought by a newspaper because it falls under the definition of "agency" for public records purposes, the 3rd DCA held.

Dade Aviation Consultants (DAC) was formed by eight engineering and construction firms to manage a massive 10-year expansion and renovation of Miami International Airport.  The joint venture served as a support staff extension of the Dade County Aviation Department and had no other purposes than to work on the air-port contract through a professional services contract (PSA).  At one point DAC decided to hire lobbyists as part of its team to facilitate certain activities related to the airport contract. The Miami Herald sought records from the joint venture, including those related to the lobbyists. DAC turned over many records but withheld others, including those related to lobbying activities, asserting that those were not public records.  The appeals court disagreed, concluding that DAC falls under the definition of Aagency@ and must comply with the Public Records Law.

"DAC was created for the express purpose of fulfilling the PSA to help the Department.  DAC doesn't have any other clients or business.  Hence, DAC's argument that just because it does a job, not everything it does is public, is unconvincing.  DAC's only job is the PSA," the court said.  "(W)hen a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be."  [Dade Aviation Consultants v. Knight Ridder, Inc., 10/31/01]@

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ACourt challenge after administrative appeal fair...  A fired public employee who fully pursues administrative remedies is not then entitled to bring an independent action in circuit court challenging her termination, the 3^rd DCA held.

The court also concluded there is no action in Florida for the common law tort of wrongful termination.  The DCA ruled against a former Miami-Dade County corrections employee who challenged her 1990 firing.  The woman utilized civil service administrative procedures and, when that route failed, sought relief in circuit court.  Citing a 1983 ruling, the DCA rejected her attempt.  However, the court said nothing about its decision prevents the woman from reapplying for a job since she has been recertified for the position.  [Bass v. Metro Dade County Department of Corrections and Rehabilitation, 10/31/01]@

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4^th District Court of Appeal

AWhistle Blower's Act - temporary reinstatement...  A public employee who claims she was terminated in violation of the Whistle Blower's Act in not entitled to temporary reinstatement if she was not actually fired but instead refused a transfer to a different position, the 4^th DCA said.

Valerie Luster, an inspection department employee with a municipal housing authority, claimed she was fired in retaliation for reporting alleged violations to federal authorities.  Subsequent to her reporting, the executive director reorganized the authority and eliminated the inspection department.  Luster was offered another position at the same salary; she told the executive director the position was "not really her," but 'that she would accept it if assigned.  Luster alleges she was not given the position and was later terminated.  She sought temporary reinstatement while her complaint was pending, but the DCA concluded she was not fired and therefore is not eligible for temporary reinstatement.

"The statute requires temporary reinstatement pending trial of a Whistle Blower's suit when an employee has been discharged in retaliation for a protected disclosure.  Where an employee has been simply transferred or demoted, there is no statutory right to temporary reinstatement.  In this case, the trial court could have concluded that, at most, appellant had been transferred but refused the position offered.  Thus, she was not discharged.  She had a position with appellee and refused to accept it," the DCA said.  Luster v. West Palm Beach Housing Authority, 10/31/01]@

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PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Opinions

**ADonation of surplus property...  In response to a request from the Palm Beach County School Board attorney, the Attorney General issued an advisory opinion stating in sum:  "A school district is authorized to donate surplus tangible personal property of no commercial value to a municipality under the terms of section 274.06, Florida Statutes.  Further. this statute authorizes the school district to dispose of property with a value of less than $5,000 in the most efficient and cost-effective means determined by the school district."  [AGO-2009-079, 10/30/01]@

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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