VOL. XXV . . . . . . . . . . . . . . . September 12, 2001 . . . . . . . . . . . . . . . . .NO. 31

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

 

CA-2001-045;Order 01U-226(September 4, 2001)

CINDY HARRINGTON, Charging Party,

v.

CITY OF MIAMI BEACH, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by using one employee, in a higher classification, rather than the two employees previously used to collect resort taxes.

AThe charge fails to demonstrate that Harrington engaged in concerted activities not prohibited by law, for the purpose of mutual aid or protection and that the city=s failure to reclassify her and increase her salary was in response to that protected concerted activity.@       

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UC-2001-028;Order 01E-227(September 5, 2001)

PINELLAS SUNCOAST TRANSIT AUTHORITY, Petitioner,

v.

SCHOOL EMPLOYEES UNION, NATIONAL CONFERENCE OF FIREMEN AND OILERS, LOCAL 1221, SEIU, AFL-CIO, CLC, Respondent.

PERC grants the unopposed petition to clarify unit 969 finding that Athe Safety and Training Instructor classification was eliminated in 1995 and should be deleted from the included portion of the bargaining unit description.  The hearing officer also concluded that the Supervisor-Safety and Training classification is not currently in the non-supervisory, white-collar bargaining unit and the request that this classification be

specifically excluded is unnecessary.@

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AC-2001-018;Order 01E-228(September 5, 2001)

IN RE:  PETITION OF SOUTHWEST FLORIDA PROFESSIONAL FIRE FIGHTERS & PARAMEDICS, LOCAL 1826, IAFF, INC., TO AMEND CERTIFICATION 973.

PERC grants the union=s petition to reflect the name of the certi­fied bargaining agent as the Southwest Florida Professional Fire Fighters & Paramedics, Local 1826, IAFF, Inc.

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AC-2001-019 Order 01E-229(September 5, 2001)

IN RE:  PETITION OF SOUTHWEST FLORIDA PROFESSIONAL FIRE FIGHTERS & ORDER GRANTING AMENDMENT PARAMEDICS, LOCAL 1826, IAFF, INC., TO AMEND CERTIFICATION NO. 1187.

PERC grants the union=s petition to reflect the name of the certi­fied bargaining agent as the Southwest Florida Professional Fire Fighters & Paramedics, Local 1826, IAFF, Inc.

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AC-2001-016;Order 01E-230­(September 6, 2001)

IN RE: PETITION OF SOUTHWEST FLORIDA PROFESSIONAL FIRE FIGHTERS & PARAMEDICS, LOCAL 1826, IAFF, INC., TO AMEND CERTIFICATION 764.

PERC grants the union=s petition to reflect the name of the certi­fied bargaining agent as the Southwest Florida Professional Fire Fighters & Paramedics, Local 1826, IAFF, Inc.

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EL-2001-031(Relates to RC-2001-020)(September 6, 2001)

CORAL GABLES WALTER F. STATHERS MEMORIAL LODGE #7, FRATERNAL ORDER OF POLICE, Petitioner,

v.

CITY OF CORAL GABLES, Respondent.

Election results and order modifying unit 318 ro reflect AAll sworn police officers, including sergeants and lieutenants@ to opt-into the ALieutenants@ unit.  8 eligible voters cast 8 ballots for the union.

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EL-2001-030 (Relates to RC-2001-023)(September 10, 2001)

FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Petitioner,

v.

CITY OF BOYNTON BEACH, Respondent,

v.

PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Intervenor.

Election result and order re-certifying unit 807 for the INTERVENOR.  87 eligible voters cast 37 ballots for the PBA and 2 for the FOP.

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CA-2001-046;Order 01-GC-231(September 10, 2001)

PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, INC., Charging Party,

v.

CITY OF JACKSONVILLE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to process a grievance by not allowing the grievant to call witnesses.  AThere is nothing in the contract that allows the grievant to call witnesses at the lower levels of the procedure.@

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

1^st District Court of Appeals

CASE NO. 1D00-4521 & 1D00-4235(September 6, 2001)

ELIZABETH A. DOYLE, Appellant,

v.

DEPARTMENT OF BUSINESS REGULATION and PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellees.

AThese cases are consolidated appeals of two orders entered by the Public Employees Relations Commission (PERC), one of which addressed back pay and benefits, and the other of which addressed attorney's fees and costs, due Sergeant Elizabeth Doyle (Doyle).  Because PERC's interpretation of its responsibility where parties reach a stipulated settlement was erroneous, we reverse the orders and direct PERC to accept the stipulations of the parties...

Florida courts look favorably upon stipulations because they shorten litigation time and lower litigation costs.  See Cunningham v. Standard Guar. & Sur. Ins. Co., 630 So. 2d 179, 182 (Fla. 1994).  "Such stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy."  Id.  Here PERC does not dispute that the stipulation was entered into with good faith after a series of concessions by both sides.  PERC erred by rejecting the stipulation and requiring the presentation of evidence.  The stipulations here sought to avoid needless presentation of evidence and thereby prevent expenditure of both private and public monies on court or agency proceedings that had already been resolved by good-faith negotiations.@

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[From Attorney General=s Appellate Alert]

1^st District Court of Appeals

AWorkers' comp - use of out-of-state doctor...  In a sharply divided ruling, the 1^st DCA held that parties in a workers' compensation dispute can support their case with independent medical examinations conducted by doctors who are not licensed in Florida.

In a 2-1 decision, the DCA panel allowed the testimony of a Georgia physician hired by the employer to examine an injured worker.  The worker argued that the doctor was not competent to render an opinion as an independent medical exam (IME) physician because he is not licensed under chapter 458, F.S.  The majority concluded that the doctor is exempt from the licensing provisions of chapter 458 because he is licensed in Georgia and, in performing the IME, he acted within the scope of his practice.

Judge Ervin disagreed, however, and said Florida's workers' compensation scheme makes it clear that an IME physician must be licensed in Florida and certified by the Division of Workers' Compensation.  "(T)here is nothing in any of the ... authorities remotely suggesting that an independent medical examiner may be a person other than a physician licensed in the state of Florida.  If the legislature had intended to accord the privilege to both the employer and the employee to seek out a physician licensed anywhere inside the United States to serve as such examiner, it could have clearly expressed its purpose," he wrote.  [Griffin vs. J.B. Hunt Transport, 9/4/01]@

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3^rd District Court of Appeal

AEligibility for state retirement benefits...  A public agency's error in mistakenly enrolling an ineligible employee in the Florida Retirement System does not block it from later denying retirement benefits, the 3^rd DCA said.

The court said the state correctly denied retirement benefits to Christopher Rayborn, a registered nurse who began working in 1994 as a "temporary relief/pool nurse" at Jackson Memorial Hospital.  Rayborn previously had worked in a full-time nursing position at the hospital, which at the time participated in FRS.  The temporary position carried higher pay but no benefits, but Rayborn erroneously told the Division of Retirement he was in a regular position that was covered by FRS.  That error was corrected two years later.  Rayborn accepted a full-time nurse position with benefits in 1998, but by that time Jackson Memorial was no longer a participating FRS employer.  Rayborn was informed that he was excluded from FRS participation, and in late 1999 the Division of Retirement denied his request for FRS "reinstatement."  Rayborn appealed, but the DCA ruled against him.

"Although Jackson mistakenly enrolled Rayborn in FRS between 1994 and 1996, that error does not estop the agency from now denying his entitlement to those benefits," the DCA said.  [Rayborn vs. Department of Management Services, 9/5/01]@

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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