OFFICIAL PEUBLICATION OF THE FLORIDA SCHOOL LABOR RELATIONS SERVICE
OFFICIAL PEUBLICATION OF THE O R D E R
S U M M A R Y
PLEASE COPY TO SCHOOL BOARD MEMBERS
AND
ADMINISTRATORS AS NEEDED.
**School Board
Cases
VOL. XXVI . . . . . . . . . . . . April 17, 2002 . . .
. . . . . . . . . . . NO. 12
PART I . . . . . . . . . .
. . . . . . . . . . . . . . ORDERS ISSUED BY PERC
BP-2001-002
(Re: AF-2001-002, CA-97-099, and RC-97-029);
Order 02U-088 (April 9, 2002)
PALM BEACH COUNTY POLICE
BENEVOLENT ASSOCIATION, INC., Charging
Party,
v.
CITY OF RIVIERA BEACH,
Respondent.
ATo determine the amount of
overtime pay the City owed to Pfefferkorn, the hearing officer used the method
proposed by the PBA. The PBA proposed
using a sampling of lieutenants who received overtime pay between April 1996
and 2001. This method factored in such
things as retirements, promotions, and periods of time when these comparable
employees were not eligible to accrue overtime and/or compensatory time. Two factors excluded from consideration were
sergeants who worked as acting lieutenants during vacancies in the lieutenants= positions and lieutenants
who elected not to work overtime during the relevant time period. Using this method, the hearing officer found
that the City owed Pfefferkorn $33,108.86 in overtime pay ...
The hearing officer
recommended reimbursing Pfefferkorn $15,176.00 for his monthly premiums and
prescription costs ...
In a portion of its second
exception, the PBA excepts to the hearing officer failing to calculate the
total amount of backpay owed to Pfefferkorn.
We agree. The total amount of
backpay owed to Pfefferkorn is $201,819.60.
Thus, this portion of the PBA second exception is granted ...
... the Commission hereby
orders the City to pay Pfefferkorn $201,819.60 in backpay plus simple interest
determined in accordance with the method previously described herein and less
appropriate taxes. After that figure is
calculated, the City may reduce the final payment due by the amount it has
already paid the employee ($145,383.27).
Enforcement of this order shall be pursuant to section 447.5035, Florida
Statutes.@
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**EL-2002-011
(Relates to RC-2001-060); Order 02E-089 (April 10, 2002)
WALTON COUNTY EDUCATION
ASSOCIATION, Petitioner,
v.
WALTON COUNTY SCHOOL BOARD,
Respondent.
PERC determines an
appropriate noninstructional employee unit and orders a secret mail-in ballot
election.
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CB-2002-005;
Order 02GC-090 (April 12, 2002)
MICHAEL MOAKLEY, Charging
Party,
v.
LIUNA, PUBLIC EMPLOYEES'
LOCAL 678, Respondent.
The General Counsel
summarily dismisses that portion of the charge alleging that the union violated
the Act by failing to represent employees during negotiations with the City of
Melbourne. That portion of the charge
alleging that the contract ratification vote was improper is found sufficient,
because unit employees did not have proper notice of the contract ratification
vote, and is ordered to an evidentiary hearing.
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EL-2002-005 (Relates to
RC-2001-045) (April 12, 2002)
CHARLES E. BROOKFIELD LODGE
#86, FOP, Petitioner,
v.
ORANGE COUNTY BOARD OF
COUNTY COMMISSIONERS, Respondent.
Election results and order
dismissing the petition to represent all employees in the classification of
Lieutenant. Sixteen eligible voters
cast nine ballots against and six for the union.
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CA-2002-019;
Order 02GC-091 (April 15, 2002)
ANTHONY ZITNICK, Charging
Party,
v.
CITY OF PEMBROKE PINES,
Respondent.
The General Counsel
summarily dismisses the amended charge that the employer violated the Act by
refusing Zitnick=s request to arbitrate a collective bargaining contract
grievance over his termination.
AOn January 20, 2001, the
Circuit Court of the Seventeenth Judicial Circuit ordered the parties to
arbitrate the matter. On appeal, the
Fourth District Court of Appeal reversed and held the City was not obligated to
arbitrate the dispute because Local 2292 had declined to process the grievance
to arbitration. The mandate issued on
September 14, 2001.@
The charge is untimely
filed because the six months for filing unfair labor practice has terminated.
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CB-2002-004;
Order 02GC-092 (April 15, 2002)
ANTHONY ZITNICK, Charging
Party,
v.
INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS, LOCAL 2292, Respondent.
The General Counsel
summarily dismisses the amended charge that the union violated the Act by
failing to arbitrate Zitnick=s grievance over his termination. Local 2292 notified Zitnick
on September 19, 2000, of the its refusal to handle his grievance and the
reasons therefor. Despite that notice,
he chose not to exercise his right to file an unfair labor practice charge
until February 28, 2002. Therefore, the
charge is untimely and must be dismissed.@
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[From Attorney General=s Appellate Alert]
1st District
Court of Appeal
AUniversity's authority to fire
employee
... A state university that fired a
manager for sexually harassing students correctly rejected his argument that he
was entitled to back pay for the time between his termination and the
university's final order supporting the firing, the 1st DCA said.
The president of Florida
A&M University sent Calvin Miles, the general manager of a campus radio
station, a letter on August 19, 1999, informing him that he was to be
terminated effective one week later.
Miles argued that the women's complaints were filed after the 60-day
window for lodging them, but the DCA pointed to administrative rules that
authorize the university to investigate all formal complaints, regardless of
when they are filed, and to take any action it deems warranted under the
circumstances. The university did not
enter a final order upholding the dismissal until 15 months later, and Miles
argued that he was entitled to be paid for that period. The DCA disagreed, noting another
administrative rule that authorizes the university president to determine the
time of dismissal for an employee whose conduct adversely affects the
university's operations or jeopardizes the well-being of students or
others.
"FAMU's decision to
discharge did not and could not become final until after the formal administrative
hearing had taken place," the DCA said.
"But the hearing necessarily had as its retrospective focus whether
appellant had been guilty of misconduct justifying termination of his
employment." [Miles v. Florida
A&M University, et al., 4/10/02]@
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2nd District
Court of Appeal
AExcusable neglect standard in
administrative proceedings ... The Legislature
should consider adopting an excusable neglect standard for administrative
proceedings so that more issues could be decided on their merits rather than
dismissed over technical deficiencies, a panel of the 2nd DCA
suggested.
The court reluctantly
affirmed a Department of Children and Family Services order dismissing the
appeal of foster parents whose application to renew their medical foster home
license was denied by the agency.
Relevant rules required the parents' request for an administrative
hearing to arrive at the department within 21 days of their receipt of the
denial letter. The parents' attorney
mailed their request the day before the deadline, but it did not reach the
department until the day after the deadline B even though the attorney's
office is located near the department office.
The department concluded that it was undisputed that the request arrived
one day late and therefore must be denied as untimely. The DCA concurred, but said an excusable
neglect standard should be available in administrative matters just as it is in
judicial proceedings.
"(W)e are very
sympathetic to the (parents') argument. In administrative matters affecting
substantial interests, adopting an excusable neglect standard or a time
schedule based on the date of service of requests for hearing would promote
legitimate public policies.
Unfortunately, this court lacks the power to create either rule for use
in administrative proceedings," the DCA said. "Judicial rules generally encourage the setting aside of
defaults in order to promote the public policy of allowing claims to be decided
on their merits, rather than upon procedural technicalities. ... In the context of administrative law, the
courts cannot override a filing rule that does not violate due process."
Writing a special
concurring opinion, Chief Judge Blue added, "One of the strengths of our
system of justice is the belief that conflicts should be decided on the
merits. For this reason, we employ the
doctrine of >excusable neglect= to prevent the dismissal
of potentially meritorious claims for technical defects. This concept has served the public well in
the court system. I would ask that the legislature consider providing this
equitable relief for those citizens of the state who are required to have their
personal and property rights decided in the administrative arena." [Cann v. Department of Children and Family
Services, 4/5/02]@
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4th District
Court of Appeal
AWork product - order to identify
relevant documents ... A pretrial
order directing a plaintiff's attorney to identify which documents produced by
the defendant he finds relevant to his case, and why, does not violate the
attorney's
work-product
privilege, a divided 4th DCA held.
The DCA said the order is
no more intrusive to the attorney's thought process than a standard pretrial
order to list relevant documents to be used during trial, the DCA said. A dissenting judge argued that the order
will actually force the plaintiff's attorney to divulge his legal strategy by
showing which portions of the documents he believes will aid his case, and in
what way they will help. Bette Gardner
sued Manor Care of Boca Raton, alleging nursing home neglect and abuse against
her mother. Manor Care issued a set of
interrogatories, including two asking Gardner's attorney to identify particular
surveys conducted by a state agency that the lawyer contends are relevant, and
which documents from Manor Care personnel files Gardner's lawyer considers relevant. The plaintiffs attorney objected that the
interrogatories pried into work product, but the DCA said they merely would
help Manor Care prepare for the case.
"(T)his case involves
a finite number of documents, of which respondent already has knowledge (having
produced them). Requiring disclosure of
these documents thought by petitioner's counsel to be relevant has no more
effect than a standard pretrial order requiring a party to list relevant
documents to be used during trial," the DCA said.
Dissenting, Judge Stevenson
wrote, "Manor Care seeks to learn, by interrogatory request, >the manner in which= Gardner might contend that
those documents, which Manor Care produced, are relevant to certain issues in
the case. Certainly, Manor Care is
entitled to know which documents might, and will, be used at trial, but, here,
Manor Care subtly seeks something more - the actual legal strategy of
Gardner." [Gardner vs. Manor Care of Boca Raton, Inc., 4/10/02]@
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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,
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contact your attorney.
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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