VOL. XXVI  . . . . . . . . . . . . January 23, 2002 . . . . . . . . . . . . . . NO. 02

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

 

CA-2001-073; Order 02GC-001 (January 4, 2002)

EARL E. OLDEN, Charging Party,

v.

FLORIDA A & M UNIVERSITY, BOARD OF TRUSTEES, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by non-renewal of Olden because he was claiming he was moved to a hostile work station.@  The charge is too vague to demonstrate a violation, the charge is also insufficient on its merits for there is insufficient evidence to show that Olden=s alleged movement of his work station and the creation of a hostile work environment, were based upon violation of his protected activities.

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CA-2001-075; Order 02GC-002 (January 7, 2002)

COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Charging Party,

v.

CITY OF PORT SAINT LUCIE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by threatening a police officer with discipline because he addressed the City Council.

ACharges containing vague, general or conclusional allegations will not be found sufficient, even when the required factual details may be inferred from the supporting documents accompanying the charge

...  The Commission has construed a Athreat of reprisal@ to go beyond expressions of opinion or argument to indicate that adverse action would be taken or implemented ...  Here, the supporting documents filed with the charge do not support the PBA=s contention that Beck was threatened with discipline.@

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MS-2001-004; Order 02E-003 (January 7, 2002)

IN RE:  PETITION OF UNITED ACADEMIC FACULTY ASSOCIATION OF NORTH FLORIDA COMMUNITY COLLEGE TO DISCLAIM INTEREST IN CERTIFICATION 1330.

PERC adopts the Hearing officer=s recommendation and accepts the union=s petition to disclaim interest.  Certification 1330 is revoked.

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UC-2001-051; Order 02E-004 (January 9, 2002)

AVON PARK PROFESSIONAL FIRE FIGHTERS, LOCAL 3132, IAFF, Petitioner,

v.

CITY OF AVON PARK, Respondent.

PERC grants the union=s petition seeking to clarify a unit of fire suppression personnel to include newly created classifications of fire marshal and senior firefighter.  The hearing officer=s recommendations are adopted and certification 786 is amended to include the two new positions.

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RC-2002-001; Order 02E-005 (January 11, 2002)

PONCE INLET PROFESSIONAL FIREFIGHTERS ASSOCIATION LOCAL 4140, Petitioner,

v.

TOWN OF PONCE INLET, Respondent.

PERC dismisses the petition seeking to represent a unit of fire rescue employees.  The Commission=s registration documents indicates that Local 4140 is not registered with the Commission.

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CA-2001-074; CB-2001-033; Order 02GC-006 (January 14, 2002)

OTIS GRINDER, Charging Party,

v.

CITY OF BOCA RATON, Respondent.

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OTIS GRINDER, Charging Party,

v.

NATIONAL CONFERENCE OF FIREMEN AND OILERS, NCFO LOCAL 1227, Respondent.

The General Counsel summarily dismisses the charge that the employer and the union violated the Act by the manner in which Grinder was treated with respect to the drug testing procedures which violated his rights.

AThe scope of the Commission=s jurisdiction over disputes between public employees and their employer is limited to ensuring that the rights provided employees by chapter 447, Part II, are not abridged ...  Consequently, to be protected, employee conduct must be concerted in nature.  Individual actions may constitute concerted activity if that activity encompasses Athe well-being of fellow employees.@  However, when an employee engages in activities for his benefit alone, such conduct is not concerted, and thus, not protected.@

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**CA-2002-001; Order 02GC-007 (January 15, 2002)

RITA N. POWELL, Charging Party,

v.

OSCEOLA COUNTY SCHOOL BOARD, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by "admonishing" her for placing a "union flyer" in coworkers' work mailboxes and she "believes" that the memorandum was placed in her personnel file.

APowell does not disclose in her charge whether she and coworkers were distributing literature on behalf of a currently certified union or if she and other coworkers were engaged in activities on behalf of a union seeking initial certification or for a union that is seeking to displace a currently certified union.@

Powell has not shown that the school board has discriminated in not allowing her distribution while allowing other distributions.

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CB-2002-001; Order 02GC-008 (January 16, 2002)

ROSEVELT HUGHES, Charging Party,

v.

LOCAL 2957, IAFF, AFL-CIO, CLC, Respondent.

The General Counsel summarily dismisses the charge that the union violated the Act by failing to represent Hughes during a grievance proceeding.

AAn examination of the present charge reveals that it is conclusional.  Hughes concludes that Franklin failed to represent him during a grievance meeting; however, the charge does not identify the other individuals involved, what happened, and where it happened.  In addition, the charge was not accompanied by documentary evidence such as a grievance and responses thereto or the collective bargaining agreement.@

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CA-2002-002; Order 02GC-009 (January 17, 2002)

ROSEVELT HUGHES, Charging Party,

v.

CITY OF LEESBURG, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to discuss a grievance in good faith.

AThe charge alleges that Hughes filed a grievance, but a copy of his grievance was not included with the charge.  Thus, the charge is deficient because it did not contain a copy of the grievance.  The charge is also deficient because it does not include the collective bargaining agreement under which the grievance was filed.@

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UC-2001-054; Order 02E-010 (January 17, 2002)

SUNCOAST PROFESSIONAL FIRE FIGHTERS AND PARAMEDICS, LOCAL 2546, IAFF, Petitioner,

v.

CHARLOTTE COUNTY FIRE AND EMS,  Respondent.

PERC dismisses the petition seeking to include the battalion chief classification in a unit of fire suppression and medical rescue personnel.  The union was not properly registered with the Commission.

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**RC-2001-047; Order 02E-011 (January 17, 2002)

MANATEE COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1584, AFSCME, AFL-CIO, Petitioner,

v.

MANATEE COUNTY SCHOOL BOARD, Respondent.

PERC dismisses the representation petition because the union failed to show cause why its petition should not be dismissed because of the contract bar provisions of Section 447. 307(3)(d), Florida Statutes.

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CA-2002-003; Order 02GC-012 (January 18, 2002)

ERIC WILLIAMS, Charging Party,

v.

CITY OF HOLLYWOOD, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by failing to honor the terms of the settlement agreement for a grievance.                    AThe Commission has adopted this policy in Florida as effectuating the legislative intent, clearly expressed in Section 447. 401, Florida Statutes, that labor disputes be settled whenever possible through contractual arbitration.  Therefore, because in the normal case there is an adequate, if not preferable, remedy through section 682.17, Florida Statutes, the Commission will not entertain an unfair labor practice charge which merely alleges a failure to comply with an arbitrator=s award.  See Old Dixie Fire Fighters Association, Local No. 2670, IAFF, AFL-CIO v. Old Dixie Fire Control Tax District No. 2, 7 FPER & 1215 0 (1981); Dade County PBA v. City of Homestead, 7 FPER & 12079 at 202 (1981).@

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WB-2002-001; Order 02GC-013 (January 18, 2002)

RAYMOND F. MILLS, Complainant,

v.

DEPARTMENT OF CORRECTIONS, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by dismissing Mills for whistle-blowing activity.

AMills was also charged with other offenses, such as telling inmates that Mills= supervisor, Curley, was a drunk and that he, Mills, was going to have Curley arrested.  Mills does not challenge that he made these statements, either.  He does dispute that he called an inmate stupid, dumb, and retarded.

In any event, the charges that have not been disputed are sufficient to establish a legitimate reason for Mills is dismissal.@

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

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

AEEOC actions for workers limited by arbitration ... An agreement between an employer and an employee to arbitrate job disputes does not bar a federal agency from pursuing victim-specific judicial relief in an enforcement action under the Americans with Disabilities Act, the U.S. Supreme Court ruled.

The court, in a 6-3 decision, said the Equal Employment Opportunity Commission may pursue back pay, reinstatement and damages for a Waffle House cook who was fired after he suffered a seizure at work.  When he applied for the job, the cook had signed an agreement to use arbitration to resolve employment-related disputes.  An appeals court ruled that the EEOC could seek injunctive relief to prevent future occurrences, but could not seek victim-specific relief because the policy in federal arbitration law favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court when it seeks primarily to vindicate private, rather than public, interests.  The Supreme Court, noting that the Federal Arbitration Act does not mention enforcement by public agencies, said the law ensures the enforceability of private agreements to arbitrate but otherwise doesn't restrict a nonparty's choice of a judicial forum.

"The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake," Justice Stevens wrote for the court.  "(I)t is the public agency's province - not that of the court - to determine whether public resources should be committed to the recovery of victim-specific relief.  And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum."

Justice Thomas, a former head of the EEOC, wrote in dissent, "(T)he EEOC must take a victim of discrimination as it finds him.  Absent explicit statutory authorization to the contrary, I cannot agree that the EEOC may do on behalf of an employee that which an employee has agreed not to do for himself."  [Equal Employment Opportunity Commission v. Waffle House, Inc., 1/15/02]@

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5^th District Court of Appeal

AAbsolute privilege - letters pursuant to bargaining agreement ...

Comments contained in letters suspending an employee, even if they are defamatory, are absolutely privileged if the letters are sent pursuant to a collective bargaining agreement, the 5^th DCA said.

An airline pilot who was suspended for one month following an in-flight incident sued the airline, alleging that the letters notifying him of the suspension defamed him by falsely recounting the events that led to the suspension.  The trial court granted summary judgment in favor of the airline, finding that the statements were absolutely privileged regardless of whether they were defamatory.  The DCA agreed, primarily citing the 1^st DCA's 1995 decision in Hope v. National Alliance of Postal and Federal Employees.

"In order to be absolutely privileged, a statement need only be relevant to the labor grievance proceedings," the DCA said.  "(I)t is undisputed that the letters of suspension were sent pursuant to, and in compliance with, the terms of the parties' collective bargaining agreement.  Therefore, the alleged defamatory statements contained within those letters were >relevant= to the grievance proceeding and thus entitled to absolute immunity."  [Brown v. Comair, Inc., 1/4/02]@

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APatent rights for invention by public employees ...  Patent rights for an invention devised by a public employee while trying to solve a problem for his governmental employer belong to the inventor rather than to the public entity, the 5^th DCA said.

The DCA affirmed a lower court's determination that two City of Cocoa employees are entitled to the patent rights for a new, effective water treatment process they developed as part of a special team assembled by the city to tackle the problem.  The dispute stemmed from the city's plans to upgrade a water treatment plant, which required the removal of hydrogen sulfide from the water.  Dissatisfied with a plan submitted by an outside engineering firm, the city put together a team of seven city employees who were assigned to an in-house project to improve on the outside firm's work.  The team devised a previously unheard of way to remove hydrogen sulfide from the water, and team members obtained a patent on their invention.  Five of the seven team members agreed to assign their patent rights to the city, but two refused and sued the city.  Gary Heller won a jury verdict that the DCA previously affirmed, and Glynn Leffler prevailed in the present case.

Under existing case law, patent rights to an invention belong to the inventor unless the employer can prove that the employment was for the specific purpose of making the invention.  The city, citing testimony from several team members, argued that the invention was a result of its charge to the team to be creative in approaching the project, while the two employees said the invention went beyond the scope of the assignment.  The trial court ruled in Leffler's favor, and the DCA affirmed.

AThe trial court found that Leffler was not hired to invent a new technology or method.  The team was never told to invent, and no one anticipated or expected to invent anything.  Leffler had no history of inventing and the City did not expect him to invent anything.  Instead, the goal of the team was to design a simpler, cheaper system,@ the DCA said.  "All of the witnesses agreed that Leffler was not asked or instructed to invent anything and that the inventions were a surprise."  [City of Cocoa v. Leffler and Heller, et al., 1/4/02]@

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PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Opinions

[From Attorney General=s Appellate Alert]

**School boards - construction management contracts ...  In response to a request from the attorney for the Alachua County School Board, the Attorney General issued an advisory opinion stating in sum:   "1) The school board may award construction management contracts to the most qualified firm at a price determined to be fair, competitive, and reasonable; there is no requirement that the contract be awarded to the bidder submitting the lowest proposed cost;  2) While >knowledge of local conditions= is not specifically prescribed as a consideration in awarding a professional services contract, it would appear to fall within the >capabilities= and >experience= of potential contractors, which must be considered in determining the qualifications of a firm or individual;  3) While a school board may give more weight to certain individual criteria than to others, a school board may not act arbitrarily or capriciously by giving undue weight to a particular attribute." [AGO-2002-03, 1/7/02]@

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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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is a joint venture of the

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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

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