VOL. XXVI . . . . . . . . . . . . May 8, 2002 . . . . . . . . . . . . . . NO. 15

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

 

**UC-2002-012; Order 02E-107 (April 30, 2002)

POLK EDUCATION ASSOCIATION, INC., Petitioner,

v.

SCHOOL BOARD OF POLK COUNTY, Respondent.

PERC grants the unopposed petition for unit clarification of unit 80 for instructional personnel to include the classification of rehabilitation nurse.

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UC-2002-007; Order 02E-108 (May 2, 2002)

INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO, LOCAL UNION 2301, Petitioner,

v.

CITY OF CAPE CORAL, Respondent,

PERC grants the petition seeking to include the lead lifeguard classification into the unit for rank-and-file operational services (blue-collar) unit 848. The union also sought to delete the administrative secretary classification from unit 1140 for supervisory employees, but that portion of the petition was withdrawn during the hearing.

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RC-2002-022; Order 02E-109 (May 2, 2002)

SOUTH DAYTONA PROFESSIONAL FIREFIGHTERS, IAFF, LOCAL 3193, AFL-CIO, Petitioner,

v.

CITY OF SOUTH DAYTONA, Respondent.

PERC dismisses the union=s petition to represent a unit of professional firefighters. The union failed to be registered with the Commission as an employee organization during the pendency of this petition.

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UC-2002-008; Order 02E-110 (May 2, 2002)

INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES AFL-CIO, LOCAL UNION 2301, Petitioner,

v.

CITY OF CAPE CORAL, Respondent.

PERC grants the petition seeking to include the records specialist and inspection representative/coordinator classifications into unit 986 for non-supervisory services (white-collar) employees.

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RD-2002-003; Order 02E-111 (May 6, 2002)

JEFFREY SIMPKINS, Petitioner,

v.

PUBLIC EMPLOYEES UNION, A DIVISION OF FEDERATION OF PHYSICIANS AND DENTISTS/ALLIANCE OF HEALTHCARE AND PROFESSIONAL EMPLOYEES, Respondent,

v.

CITY OF INVERNESS, Intervenor.

PERC adopts the hearing officer=s recommended order, finding the petition sufficient and orders a decertification election regarding the modification of the bargaining unit. The hearing officer=s order Arecommended that the Commission approve a new unit description, solely for purposes of the decertification election, to reflect the elimination of certain positions, the retitling of other positions, and the erroneous placement of a supervisory position within the unit.@

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RC-2002-014; Order 02E-112 (May 6, 2002)

SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS & PARAMEDICS, LOCAL 1826, IAFF, INC., Petitioner,

v.

FORT MYERS BEACH FIRE CONTROL DISTRICT, Respondent.

PERC approve a consent election agreement and orders a secret ballot election of a unit composed of the classification of Deputy Fire Chief.

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

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

AADA in conflict with employer seniority system ... An employer does not have to accommodate a worker under the Americans with Disabilities Act by giving him a position that otherwise would go to another worker as a result of the employer's seniority policy, the U.S. Supreme Court held.

The employer's showing that a requested accommodation for an injured employee's physical handicap conflicts with seniority rules is ordinarily sufficient to show as a matter of law that the accommodation is not "reasonable" under the ADA, the court said in a 5-4 decision. However, the court said, the employee remains free to present evidence of special circumstances that make an exception to the seniority rules reasonable in the particular case. The court ruled against an airline cargo handler who injured his back on the job and sought a less strenuous position in the mailroom, but was denied that position because it went to a worker with more seniority. The court said the airline's action did not violate the injured worker's rights under the ADA.

"(T)o require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment - expectations upon which the seniority system's benefits depend. That is because such a rule would substitute a complex case-specific >accommodation= decision made by management for the more uniform, impersonal operation of seniority rules," Justice Breyer wrote for the court. "We can find nothing in the statute that suggests Congress intended to undermine seniority systems in this way. And we consequently conclude that the employer's showing of violation of the rules of a seniority system is by itself ordinarily sufficient." [US Airways v. Barnett, 4/29/02]@

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11^th U.S. Circuit Court of Appeals

AADA - attorney's fees in absence of consent decree ... A trial court's approval of the terms of a settlement agreement under the Americans with Disabilities Act, combined with its explicit retention of jurisdiction, is the "functional equivalent" of a consent decree and therefore entitles the prevailing party to attorney's fees, the 11^th U.S. Circuit Court of Appeals said.

The American Disability Association sued a Fort Lauderdale gas station owner, alleging that certain physical barriers at the station violated the ADA. The parties eventually settled with the gas station owner agreeing to various changes, and the court's final order of dismissal specifically "approved, adopted and ratified" the settlement and expressly retained jurisdiction to enforce the agreement. The association then sought more than $17,000 in fees and costs, but the trial court denied the motion on the grounds that, in the absence of a consent decree, the association was not a "prevailing party" under the ADA. The 11^th Circuit disagreed, concluding that a formal consent decree is unnecessary because the trial court's retention of jurisdiction and its approval of the terms of the settlement are the functional equivalent of the entry of a consent decree.

"(T)he district court, in the order of dismissal, not only specifically >approved, adopted and ratified= the parties' settlement, but also expressly retained jurisdiction to enforce its terms. The formal entry of a consent decree was wholly unnecessary and would not affect the status of the parties or the district court's power to enforce the terms of the settlement. Rather, by approving the settlement agreement and then expressly retaining jurisdiction to enforce its terms, the district court effected precisely the same result as would have been achieved pursuant to a consent decree," the court said. [American Disability Association, Inc., v. Chmielarz, 5/1/02]@

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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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