VOL. XXV       June 20, 2001          NO. 21

 

OFFICIAL PUBLICATION OF THE FLORIDA SCHOOL LABOR RELATIONS SERVICE

 

PART I.     ORDERS ISSUED BY PERC

 

CB-2001-001; Order 01U-139 (June 5, 2001)

LEONARD DePAOLA, Charging Party,

v.

DAVIE PROFESSIONAL FIREFIGHTERS, LOCAL 2315, Respondent.

A[T]he hearing officer issued an order recommending that the unfair labor practice be dismissed, based upon the undisputed facts as represented by DePaola.  The hearing officer also recommended that Local 2315 not receive an award of attorney's fees and costs, even though it had prevailed in a motion to dismiss DePaola's unfair labor practice charge without a hearing.           ... Because this matter was resolved without a hearing, the hearing officer assumed the facts as alleged by DePaola to be true.

... The events that led to DePaola's demotion and dismissal occurred in 1993, while he was a member and president of Local 2315.  However, DePaola was not a member of Local 2315 at the time of his 2000 demotion and dismissal or at the time he requested Local 2315 to represent him.  Accordingly, when DePaola asked Local 2315 to represent him in a collective bargaining grievance concerning his dismissal, it declined because he was not a member.  Local 2315 informed DePaola that he could pursue the grievance on his own.

... In Galbreath v. School Board of Broward County, 7 FPER & 12287 (1981), aff=d, 424 So.2d 837 (Fla. 4^th DCA 1982), aff=d, 446 So.2d 1045 (Fla. 1984), cert. denied, 469 U.S. 801 (1984), the Florida Supreme Court upheld the constitutionality of Section 447.401, Florida Statutes, which provides a unique procedure whereby a certified union may choose not to represent a bargaining unit employee who is not a member of the union.  This is an exception to the concept of exclusive representation, allowing a union the right to determine whether it desires to represent nonmembers in grievances.@

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RA-2001-007; Order 01E-140 (June 6, 2001)

COASTAL FLORIDA PUBLIC EMPLOYEES ASSOCIATION, Petitioner,

v.

FLAGLER COUNTY SHERIFF'S OFFICE, Respondent.

PERC grants the unopposed petition to voluntarily recognize a unit of noncertified employees of the Sheriff=s Office.

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CA-2001-021; Order 01U-141 (June 8, 2001)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, LOCAL 3817, Charging Party,

v.

THE HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, Respondent.

PERC denies the union=s petition for an extension of time.

AThe instant motion is untimely because it was not filed prior to the expiration of the deadline sought to be extended as required by Florida Administrative Code Rule 28-106.204(5).  Furthermore, in our last order extending the Charging Party's time we stated that no further extensions would be granted.  The Charging Party has had a total of 55 days in which to amend its charge from the date the charge was summarily dismissed.@

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CA-2001-028; Order 01GC-142 (June 11, 2001)

PAUL MICHAEL HAAS, Charging Party,

v.

CITY OF LIVE OAK, FIRE DEPARTMENT, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by the manner in which Haas was treated and reprimanded with respect to a previous letter of warning.  The charge is not sufficiently clear enough to find a prima facie violation.  That portion of the charge alleging a discriminatory discharge is deficient because it does not state the reason for the December 29 reprimand.

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RC-2000-045; Order 01E-143 (June 11, 2001)

STATE EMPLOYEES ATTORNEYS GUILD, FPD, NUHHCE, AFSCME, AFL-CIO, Petitioner,

v.

STATE OF FLORIDA, Respondent.

PERC dismisses the petition to certify a unit of attorneys employed by the State of Florida (State).

This year=s Legislature has mandated that the classification system be structured in such a way that every confidential, managerial, and supervisory employee be included in the SES and designated as either managerial/policymaking, professional, or nonmanagerial nonpolicymaking.

AA review of this new legislation reveals a strong State policy towards a more comprehensive organizational structure of the SES that groups occupations together with respect to benefits and rewards rather than compartmentalizing them.  Defining a bargaining unit limited to one profession, whose community of interest, albeit strong, is not so unique as to justify a separate bargaining unit, would contravene this policy.

... Moreover, were we to determine that a bargaining unit comprised solely of attorneys is appropriate, a significant potential exists for at least four additional SES bargaining units, which would then increase the number of Statewide bargaining units to fourteen.  (Finding of Facts 8 and 19).  Additional bargaining units of non-professional SES employees could also be requested because the new legislation reclassifies a substantial portion of the State's career service work force as SES employees.  In turn, this would result in a concomitant adverse effect upon the efficient administration of government at the state level because the automatic impasse provision of Section 216.163(6), Florida Statutes, limits the bargaining cycle of each unit.@

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UC-2001-020; Order 01E-144 (June 12, 2001)

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R-5 186, Petitioner,

v.         

CITY OF PALM BAY, Agency.

PERC dismisses the petition to clarify unit number 957 by including fleet support technician in this blue-collar unit.

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UC-2001-021; Order 01E-145 (June 12, 2001)

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), LOCAL R-5 197, Petitioner,

v.

CITY OF PALM BAY, Respondent.

PERC dismisses the petition to clarify unit number 712 because the petitioner is not currently registered with the Commission.

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CA-2001-027; Order 01GC-146 (June 12, 2001)

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

v.

GOVERNOR JEB BUSH, STATE OF FLORIDA, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by dominating, interfering with, or assisting in the formation, existence, or administration of, any employee organization or contributing financial support to such an organization.  That portion of the charge alleging a violation for interference or coercion is found sufficient and ordered to an evidentiary hearing.

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EL-2001-017 (Relates to RC-2000-088) (June 18, 2001)

AMALGAMATED TRANSIT UNION LOCAL 1395, AFL-CIO, Petitioner,

v.

ESCAMBIA COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

Election Results and order certifying unit number 1332 for wall-to-wall blue and white collar employees.  325 eligible voters cast 157 ballots for and 143 against the union.

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EL-2001-004 (Relates to RC-2000-056); Order 01E-147 (June 18, 2001)

PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, Petitioner,

v.

CITY OF JACKSONVILLE, Respondent,

v.

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Intervenor.

Election results and order dismissing objections to the petition to represent a non-professional unit of employees.  2424 eligible voters cast 441 ballots for the petitioner, 411 for the intervenor and 863 against both unions.

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CA-2001-031; Order 01GC-148 (June 18, 2001)

GARY C. BALLARD, Charging Party,

v.

CITY OF ORLANDO, FIRE DEPARTMENT, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to process a grievance to arbitration.  A determination otherwise was precluded because Ballard failed to provide a written notice of his desire to submit the matter to arbitration.

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EL-2001-008 (Relating to RC-2000-049); Order 01E-149 (June 19, 2001)

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

v.

CITY OF FORT LAUDERDALE, Respondent,

v.

BROWARD COUNTY, LOCAL UNION 532, AFSCME, Intervenor.

Election results and order revoking certification 419 and certifying unit 1334 for FOP.  1012 eligible voters cast 320 ballots for FOP, 249 for AFSCME and 3 for no union.

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CB-2001-004; Order 01U-150 (June 19, 2001)

ERIN PERCIVAL, Charging Party,

v.

SOUTHWEST FLORIDA PROFESSIONAL FIREFIGHTERS AND PARAMEDICS, LOCAL 1826, IAFF, INC., Respondent.

PERC dismisses the charge that the union violated the Act by the manner in which it conducted a ratification election.

ALocal 1826 did not violate Section 447.501(2)(a), Florida Statutes.  The hearing officer also determined that neither party was entitled to an award of attorney's fees and costs.  No exceptions were filed to the hearing officer's order.@

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RA-2001-006; Order 01E-151 (June 19, 2001)

COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

FLAGLER COUNTY SHERIFF'S OFFICE, Respondent.

PERC grants the voluntary recognition of unit 1335 for, AAll members of the Corrections division employed as detention deputy, detention deputy 1^st class, detention corporal, and detention sergeant.@

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PART II Court Orders

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

ADamages cap on workplace harassment ...  Workers who are mistreated on the job are not limited to receiving a maximum of $300,000 in "front pay" damages, the U.S. Supreme Court held.

The unanimous court concluded that front pay is not an element of compensatory damages under 42 U.S.C. ' 1981a and thus is not subject to the damages cap imposed by the law. ...

"Because front pay is (an authorized) remedy, Congress did not limit the availability of such awards in '1981a.  Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay," Justice Thomas wrote for the court.  [Pollard vs. E.I. duPont de Nemours & Company, 6/4/01]@

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AReligious use of public school facilities ...  Religious organizations may use public school facilities after school hours without violating the constitutional separation of church and state, the U.S. Supreme Court held.

In a 6-3 decision, the court ruled in favor of the Good News Club, a private Christian club for children ages 6 to 12, which had, been barred from school grounds by the school district in Milford, New York.  The court said permission by school districts for such use would not amount to an impermissible governmental endorsement of religion, but to exclude religious clubs from using the facilities would amount to improper discrimination because other organizations routinely are granted such permission. ...

[Good News Club vs. Milford Central Schools, 6/11/01]@

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11^th U. S. Circuit Court of Appeals

AValidity of affirmative action plan ...  Miami-Dade County's "troublesome" affirmative action plan to eliminate discrimination against women in its fire department may continue, but only for a limited period of time, the 11^th U.S. Circuit Court of Appeals ruled.

The court rejected the appeal of a group of unsuccessful male firefighter applicants who argued that they were the victims of improper discrimination during the challenged period of 1994-97.  They argued that the county's affirmative action goal of 36 percent women was unreachable, and said the plan should be ruled invalid.  The 11^th Circuit agreed that the county's plan may be flawed, but said the plaintiffs failed to show how it adversely affected them directly.  Although the court allowed the county plan to stand, it called the county's response to the concerns "troublesome" and said its patience with the plan is limited.

"An affirmative action plan may not go on forever.  Simply because discrimination in the form of affirmative action may be lawful at one point in time does not mean that such discrimination may be countenanced in the future," the court said.  "The Department has now been granting preferential treatment to female applicants for nearly two decades.  When government voluntarily adopts an affirmative action plan to remedy the effects of its past discrimination, it must pursue its goals >with a sense of urgency.= ... (A) governmental body which is prepared to admit to a history of discrimination should feel compelled to remedy its misconduct swiftly. ... Although we do not decide today, based on the parties and record before us, that the plan was unlawful in 1994-97, there are serious questions about the ongoing validity of the plan."  [Danksine, et al., vs. Miami-Dade Fire Department, 6/12/01]@

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3^rd District Court of Appeal

**AInjured government Worker - statute of limitations ...  The three-year limit on suing a governmental agency begins to run when an injury or damage occurs and not when the plaintiff discovers the alleged wrongdoing behind it, the 3^rd DCA said.

The court affirmed the dismissal of a lawsuit against the Miami-Dade County School Board filed by a former school employee injured in an on-the-job accident.  Kenneth Sellers filed a claim for workers' compensation and then notified the School Board of his injury and claim for damages three years and three months after he was injured.  Sellers argued that he only discovered the board's wrongdoing during a deposition in the workers' compensation proceeding, and therefore the three-year statute of limitations period should not begin to run until that time.

The DCA disagreed, citing a 1988 Florida Supreme Court holding that a cause of action accrues when the injury occurs and the damage is sustained.  "The Sellerses cannot fault the School Board for their own leisurely handling of their claim," the DCA said.  [Sellers vs. Miami-Dade County School Board, 6/13/01]@

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4^th District Court of Appeal

AUnemployment - supervisor's frequent criticism ...  A supervisor's repeated criticism that an injured employee was not doing enough work may have offended the worker but did not rise to the level of harassment sufficient to justify unemployment benefits after the employee quit, the 4^th DCA held.

The court upheld a conclusion of the Unemployment Appeals Commission, which denied benefits for a woman who quit her job after she complained that her supervisor was "harassing" her with emails detailing the amount of work he expected of her.  The supervisor's email messages began after the woman suffered an injury and was unable to handle the volume of work she had previously handled.

An unemployment benefits referee found that the woman had good cause to quit her job, but the commission reversed.  The DCA said it agreed that "although appellant may have been offended by her supervisor's technique, her supervisor had the right and responsibility to monitor the work."  [Hutchinson vs. Unemployment Appeals Commission, 6/6/01]@

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5^th District Court of Appeal

AEmployee termination - scope of review ...  A hearing officer exceeded the scope of his review when he said a community college could terminate an employee at the end of his current contract even though the employee's immediate firing was improper, the 5^th DCA said. ...

"By addressing whether Creel had a reasonable expectation of continued employment without that issue being noticed or otherwise raised or argued at the hearing, the ALJ deprived Creel of procedural due process," the DCA held.  The court set aside the school's order terminating Creel's employment after the fiscal year, instead affirming a suspension. [Creel vs. District Board of Trustees of Brevard Community College, 6/8/01]@

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Part VII. 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.

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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