VOL. XXVI  . . . . . . . . . . . . June 19, 2002 . . . . . . . . . . . . . . NO. 19

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

 

UC-2002-014; Order 02E-141 (June 4, 2002)

SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS PARAMEDICS, LOCAL 1826, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, INC., Petitioner,

v.

LEE COUNTY PORT AUTHORITY, Respondent.

PERC grants the unit clarification petition for certification 979 seeking to include the classifications of ARFF technician, captain fire/safety enforcement, captain, and battalion chief in the rank-and-file firefighters= unit.

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VP-2002-001; Order 02VP-148 (June 4, 2002)

DAWN A. OROZCO, Complainant,

v.

DEPARTMENT OF MILITARY AFFAIRS, Respondent,

PERC determines that Orozco=s veteran=s preference expired when she accepted a previous position and the case is dismissed.

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CA-2002-005; Order 02U-149 (June 6, 2002)

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

v.

CITY OF JACKSONVILLE, Respondent.

PERC dismisses the charge that the City violated the Act by failing to deduct union dues for five bargaining unit members.  The hearing officer determined that it was inadvertent but did not accept the City=s argument for an award of fees and costs, otherwise the recommended order is adopted.  The case is dismissed and no attorneys fees or costs are awarded.

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UC-2002-01; Order 02E-150 (June 6, 2002)

CITY OF PORT ST. LUCIE, Petitioner,

v.

COASTAL FLORIDA PUBLIC EMPLOYEES ASSOCIATION, Respondent.

PERC grants the unit clarification petition for unit 1329 seeking to exclude several positions as supervisory or confidential employees.  Neither party has filed exceptions to the recommended order.

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EL-2002-014 (Relates to RC-2001-062); Order 02E-151 (June 6, 2002)

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, Petitioner,

v.

VOLUSIA COUNTY, Respondent.

The Office and Professional Employees International Union (Union) filed a motion seeking a mail ballot election and the County (County) filed a motion requesting an on-site election.  Neither party filed a response to the opposing party's motion.  PERC grants the motion for an on-site election.

AIn fact, only three employees work more than 15 miles from the polling locations...  Finally, the County asserts that its proposal would allow the election to be conducted in one day, and only require one Commission election agent to conduct...  The County has also agreed to pay the entire cost of the election if cost is a factor.@

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**EL-2002-011 (Relates to RC-2001-060) (June 7, 2002)

WALTON COUNTY EDUCATION ASSOCIATION, Petitioner,

v.

WALTON COUNTY SCHOOL BOARD, Respondent.

Election results and order certifying unit 1364 for non-instructional personnel.  389 eligible voters cast 202 ballots for and 19 against the union.

AINCLUDED:  All non-instructional employees of Walton County School Board including, but not limited to: Administrative Secretary, Air Conditioning/Refrigeration Repairman, Assistant Lunchroom Manager, Attendance Clerk, Bilingual Aide, Building Inspector (UBCI), Bus Aide, Bus Driver, Business Affairs Clerk, Bus Shop Supervisor, Carpenter, CDL Trainer/Safety Monitor, Center Program Facilitator, Clinic Aide, Cook, Computer Electronics Technician, Courier, Custodian, Data Entry Clerk, Data Manager, Electrician/Plumber, Facilities/Maintenance Coordinator, Finance Clerk, Finance Secretary/Receptionist, Food Service Manager, Food Service Worker, Health Support Services Provider, Job Coach, Maid, Maintenance Helper, Mason, Mechanic, Mechanic's Helper, Painter, Paraprofessional, Parent Involvement Specialist, Payroll Clerk, Pre-Kindergarten Lead Aide Level I, Pre-Kindergarten Lead Aide Level II, Pre-Kindergarten Parent Involvement Specialist, Pre-Kindergarten Teacher Aide, Receptionist, Roofer, School Bookkeeper, School LPN, School Plant Manager, School Secretary, School-to-Work Program Facilitator, Teacher Aide, and Terminal Operator.@

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EL-2002-007 (Relates to RC-2001-051) (June 7, 2002)

SPACE COAST POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

TOWN OF MELBOURNE VILLAGE, Respondent.

Election results and order dismissing petition to represent full-time police officers and sergeants employed by the town.  Five eligible voters cast 3 ballots against and 2 for the union.

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CA-2002-047; Order 02GC-152 (June 10, 2002)

MIAMI GENERAL EMPLOYEES, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 1907, AFL-CIO, Charging Party,

v.

CITY OF MIAMI, FLORIDA, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by unilaterally changing the established past practice relating to the collection and distribution of incoming correspondence.

A...  I conclude that the City did not have an obligation to bargain over the impact of its decision to change the mail distribution policy because Local 1907 waived any right to impact bargain in the management rights cause of its contract with the City.@

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CA-2002-048; Order 02GC-153 (June 10, 2002)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Charging Party,

v.

STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by unilaterally changing career service system rules.

AThe initial deficiency in this charge is AFSCME=s failure to identify which rules it considers mandatory subjects of bargaining...  The charge also fails to state whether the bargaining impasse declared by the State on January 9 was ever resolved by the legislative body.  This is a critical element in an alleged unilateral change allegation...  Finally, AFSCME has charged the wrong employer.  The Governor is the proper party to this case as the employer of career service system employees. ' 447.203 (2), Fla. Stat. (2001).@

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**UC-2001-057; Order 02E-154 (June 11, 2002)

INDIAN RIVER COUNTY SCHOOL BOARD, Petitioner,

v.

COMMUNICATIONS WORKERS OF AMERICA, Respondent.

PERC grants the unit clarification petition to exclude from the non-instructional blue-collar bargaining unit 333 the reclassified position of food service manager.  AIn sum, the evidence shows that the employees in the retitled position of food service manager are supervisory employees who are no longer appropriate for inclusion in the existing rank-and-file bargaining unit.@

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**CA-2002-041; Order 02GC-155 (June 12, 2002)

SARASOTA CLASSIFIED/TEACHERS ASSOCIATION, Charging Party,

v.

THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act when a school principal threatened the Association's vice president for assisting a bargaining unit member by filing a complaint form regarding classroom air quality.

A ... The alleged facts herein do not establish either a direct or implied threat by Green.  Despite his statement requesting that Gardner not attempt to circumvent his authority again, Green did not state any intention to discipline her if she again engaged in that conduct that he found so offensive.  Rather, he simply expressed an opinion that he, rather than Gardner, possessed the authority to submit air quality report forms to regional personnel.  Furthermore, Green invited Gardner and Dubin to call him to discuss this matter.@

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CA-2002-042; Order 02GC-156 (June 12, 2002)

JOE FERRARA, Charging Party,

v.

CITY OF WEST MIAMI, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by discriminating against Ferrara since October 1998 because he is a union representative and he refused to coerce a fellow officer into resigning.  The charge is untimely because it is based on events which occurred more than six months prior to filing of the charge.  Furthermore, Asuspicion that events occurred as a result of protected activity must be supported by allegations and proof of a nexus between the protected activity and the alleged retaliation...  Suspicion alone is not enough to warrant an evidentiary hearing.@

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CA-2002-043; Order 02GC-157 (June 12, 2002)

LOURDES M. MUXO, Charging Party,

v.

STATE OF FLORIDA, DEPARTMENT OF HEALTH, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by wrongfully terminating Muxo.  To establish a prima facie violation Muxo=s charge must demonstrate factual allegations establishing that she was terminated from her position because she engaged in the conduct described in Section 447.301.  Muxo=s charge fails to present any evidence that the Department=s actions were the result of her exercise of 447.301 rights.

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RC-2002-004; Order 02E-158 (June 13, 2002)

ST. CLOUD PROFESSIONAL FIREFIGHTERS, LOCAL 4153, IAFF, Petitioner,

v.

THE CITY OF ST. CLOUD, Respondent.

PERC remands the case to the hearing officer finding that the record is not sufficient to justify the fragmentation of two bargaining units [a supervisory and rank-and-file].

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

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

AADA - job that poses risk to worker's health ... The Americans with Disabilities Act does not entitle disabled workers to jobs that could threaten their lives or health even if they are willing to take the positions, the U.S. Supreme Court held.

The unanimous ruling was seen as a victory for employers who argued that a different outcome could force them to hire workers who would later sue them over workplace injuries.  The court ruled against a former refinery worker who wanted his job back, even though he had liver disease and chemical exposure could worsen his condition.  The Supreme Court approved a rule of the Equal Employment Opportunity Commission that said the ADA does not require the employer to rehire the man, rejecting the worker's argument that language in the ADA that allows employers to take action where a worker's disability poses a threat to others implicitly protects the rights of those who pose a threat only to themselves.

"(T)here is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered.  When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker's disability would threaten others outside the workplace?  If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away?," Justice Souter wrote for the court.  [Chevron U.S.A., Inc., v. Echazabal, 6/10/02]@

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AStatute of limitations - employment discrimination suits ...  Older improper incidents may be included in a complaint of long-term workplace discrimination as long as at least one of the acts occurred within the usual 180- to 300­day window for filing such complaints, the U.S. Supreme Court held.

The justices, in a 5-4 ruling, said a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate 180- or 300­day period.  However, the court said, a charge alleging a hostile work environment is not time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.  In either instance, the justices said, a court may apply equitable doctrines that may toll or limit the time period.  The ruling was a victory for a black former Amtrak employee who claimed he was subject to discriminatory practices throughout his employment.  A trial court granted summary judgment for Amtrak on many of the worker's complaints because the 300-day window had passed, but the Supreme Court said those complaints may still be considered.

"It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period.  Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability," Justice Thomas wrote for the court.  "Given, therefore, that the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim.  In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment."  [National Railroad Passenger Corporation v. Morgan, 6/10/02]@

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Florida Supreme Court

AFrye test applied in workers' comp cases ...  The Frye standard for admitting expert opinions based on novel scientific methods applies in workers' compensation proceedings just as it does in civil and criminal trials, the Florida Supreme Court held.

Answering a certified question from the 1^st DCA, the justices unanimously held that the lower court was correct in finding that a former mechanic for U.S. Sugar Corporation properly showed that the methodologies used by his expert witnesses were generally accepted in the scientific community, as required by the Frye test.  The agricultural mechanic, who spent most of his 28 years with the company in the field repairing equipment, claimed he became disabled as a result of exposure to pesticides in his work.  The judge of compensation claims did not apply the Frye test, but the DCA did apply Frye in its de novo review.  The Supreme Court agreed that the Frye standard should apply in workers' compensation cases.

"Certainly, we recognize that in establishing the workers' compensation system, the Legislature intended to create an >efficient and self-executing system ... which is not an economic or administrative burden.=  In furtherance of this goal, the Legislature relaxed the burdens of proof for workers' compensation claimants. However, it is just as clear that it was >the specific intent of the Legislature that workers= compensation cases ... be decided on their merits.=  For this reason, it is only logical for us to explicitly extend the reasoning of our prior decisions in the civil and criminal arenas to the area of workers' compensation claims.  The Frye test must be performed to ensure the trustworthiness of novel scientific theories.  This principle applies in the adjudication of workers' compensation claims before the JCC just as it does in other litigation contexts," Justice Lewis wrote for the unanimous court.  [United States Sugar Corporation v. Henson, 6/6/02]@

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PART III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arbitration Awards

** Alachua County Education Association  (June 4, 2002) (Mark R. Sherman)

 and

School Board of Alachua County

ADid the Alachua County School Board violate the negotiated agreement when it denied bargaining unit employees their salary every step for 2001-2002?  If so, what is the appropriate remedy?@

AWARD:  The Grievances are sustained in part.  The School Board of Alachua County breached the Agreement embodied in the text, tables and footnotes of its 2000 / 2001 Salary Schedules negotiated with the A.C.E.A.   Furthermore, it is the Arbitrator's finding of fact that the School Board contributed to the circumstances that frustrated its ability to live up to its contractual obligations in the 2001 / 2002 School Year.   However, it will not be compelled to remedy that broach under the current, impossible circumstances.  Instead, it will be required to address its breach in the next budgetary cycle.  In particular, it is the Arbitrator's ruling that the School Board should begin the next budgetary cycle by setting aside funds for two Step Increases for Instructional Staff and by implementing the plans for Career Service Personnel that were tabled in the 2001 / 2002 School Year.  This effectively provides for one Step Increase for Career Service Personnel.  (Since the language covering Career Service Personnel specifically states that the salary schedule does not represent years of service salary increases are not automatic...  the Arbitrator`s remedy does not provide for a two Salary Step Increase for that group.)  Furthermore, in the absence of specific and compelling language, the Arbitrator declines to order the ancillary remedial measures for Instructional Staff at Steps 29, 30 or at the top of the Salary Schedule.

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PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special Master

**SM-2001-054 (June 7, 2002) (Dr, James J. Sherman)

Miami Dade County Public Schools

and

AFSCME Local 1184

A1.  Whether the Wage increases proposed by the School Board are appropriate,

2.  Whether the proposed procedures for assigning extra work among bus drivers is appropriate...

With respect to the first issue WAGES:   The Special Master recommends that the Board increase salaries as follows:

Examine the salaries for Bus Aide, Bus Drivers, Head Custodian,

Custodian, Part-Time Service Worker I and Part-time Service Worker in the following school systems:  Broward, Palm Reach, Orange and Duval...

After examining all data, calculate the average salary in each classification in these school systems and adjust salaries in the Dade County system to match these salaries.

With respect to the Union's proposal for a step advancement and the addition of a new maximum step to each of the salary schedules, the Special Master makes no recommendation.  In view of the, economic uncertainty with respect to funding for education, the Special Master agrees with the School Board that this is the time to be conservative and look to future years for a more appropriate salary schedule.

With respect to the second issue SCHEDULING:  The Union expressed concern that the scheduling for extra work for bus drivers proposed by the School Board might result in discrimination against senior drivers and hardships for the drivers with less seniority.  The Special Master shares this concern but believes that there is insufficient evidence in this record to warrant an assumption by the Special Master that he could articulate a workable plan to balance these opposing interests.@

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**SM-2002-012;013;014 (April 5, 2002) (Arvid Anderson)

School Board of Miami­-Dade County, Florida

and

United Teachers of Dade, Local 1974, FEA/U, AFT, AFL-CIO; Dade County School Administrators Association; and Dade County School Maintenance Committee

AThe issue  to be decided is whether or not a financial urgency as defined by Section 447.409 of the Florida Statutes exists.  If it does, what are the appropriate recommendations?@

A The unions have in effect argued that the school board should be bankrupt before a financial urgency is declared.  This Special Master does not agree.  With the steps taken by the school board and recommended by the tentative agreement, plus the freezing of 25 percent of the 02 accounts, an operating budget in excess of $2.8 billion may be balanced by $1 million, if there are no other emergencies.  That is awfully this ice.  It does not allow for any contingencies, which could rise in the remaining two months of the school year. It is also noted that the school board is not permitted to borrow for this emergency.

It is noteworthy that the second proposal was rejected by a narrow margin of some 430 votes out of 11,700 cast.  If the teachers and the union=s representatives had fully realized the consequences of rejection, they likely would have approved it.  In any event, a compelling state interest has been demonstrated.

Thus, it is my conclusion that the solution proposed by the school board and tentatively agreed to by the unions is very reasonable and the Special Master respectfully recommends the adoption of the attached tentative agreement with what ever modifications maybe be required by the passage of time.@

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**SM-2002-024 (June 16, 2002) (James J. Sherman)

School Board of Levy County

and

Levy County Educational Association

ISSUES:

1.  The Union=s request for $425 one-time bonus for school related personnel.

2.  The Board=s request to amend an agreement between the School Board of Levy County and the Levy County Educational Association Instructional and School Related Contract - 1998/99 - 2000/01 Article IV, pages 14-17.

ATHE SPECIAL MASTER'S RECOMMENDATION:

1.  The one-time bonus.  The Special Master makes no recommendation.  2.  The Board's proposal to amend Article IV 8.  The Special Master makes no recommendation for change.@

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MISCELLANEOUS

Tentative Agreement Reports

FEN Calendar

==================================================================

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

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FAX - 850/414-2585 - SUNCOM 994-2585