VOL. XXVI  . . . . . . . . . . . . May 29, 2002 . . . . . . . . . . . . . . NO. 17

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

 

**UC-2002-013; Order 02E-124 (May 14, 2002)

SCHOOL BOARD OF PINELLAS COUNTY, Petitioner,

v.

NATIONAL CONFERENCE OF FIREMEN AND OILERS, LOCAL 1220, NCFO, SEIU, AFL-CIO, CLC, Respondent.

AOn March 19, 2002, the School Board of Pinellas County (School Board) filed a unit clarification petition seeking to include certain classifications in the following generic bargaining unit of non-instructional employees represented by the National Conference of Firemen and Oilers, Local 1220, NCFO, SEIU, AFL-CIO, CLC (Local 1220):

INCLUDED: All eligible employees in the maintenance, ground maintenance, transportation, warehouse plant operations, and food services department of the Pinellas County School Board.

EXCLUDED: All other non-instructional, and clerical employees and all managerial/confidential employees of the Pinellas County School Board ...

...  On April 2^nd, the hearing officer issued his recommended order.  He determined that the unit clarification petition was unnecessary to effectuate the agreement to include classifications in the bargaining unit that is defined generically.  Such a unit description allows the parties to mutually agree to have classifications with a community of interest to the unit without the necessity of filing and processing a unit clarification petition before the Commission.  See Dade County Employees Local 1363, AFSCME vs.  Metropolitan Dade County/Public Health Trust, 27 FPER & 32222 (2001).  No exceptions were filed.

For the reasons stated by the hearing officer, we agree that the petition should be dismissed.  Accordingly, consistent with prior Commission precedent and the parties= agreement upon the unit placement of the employee classifications at issue, the instant petition is dismissed as unnecessary.@

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CB-2001-032; Order 02E-125 (May 14, 2002)

KEITH PERRY, Charging Party,

v.

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, Respondent.

PERC dismisses the charge that the union violated the act by breaching its duty of fair representation with respect to the processing of a grievance.  All exceptions are dismissed.

AThe hearing officer also concluded that AFSCME did not engage in any other improper conduct that prevented Perry from timely filing a charge against AFSCME.  Our review of the record reveals that there is competent substantial evidence for these determinations.@

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RA-2002-002; Order 02E-126 (May 14, 2002)

MIAMI-DADE COUNTY, FLORIDA, EMPLOYEES LOCAL 199 OF THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner,

v.

MIAMI-DADE COUNTY, Respondent.

PERC accepts the hearing officer=s recommended order finding that the severed employees from unit 375 constitute an appropriate bargaining unit.  Accordingly, Local 199 is certified as exclusive bargaining representative for >all full-time and regular part-time nonprofessional, nonsupervisory operational service, administrative, and office and clerical personnel employed solely by Miami-Dade County.  Certification No. 1362 is issued to AFSCME Local 199.

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RA-2002-003; Order 02E-127 (May 14, 2002)

DADE COUNTY PUBLIC EMPLOYEES LOCAL 1363, AFSCME, AFL-CIO, Petitioner,

v.

MIAMI-DADE COUNTY and PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, Respondent.

For purposes of administrative efficiency, certification 375 is revoked.  Certification 1363 is issued to AFSCME, Local 1363, to represent Aall full-time and regular part-time nonprofessional, nonsupervisory operational service, administrative, and office and clerical personnel employed jointly by Miami-Dade County and the public Health Trust.@                                            

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RC-2002-005; Order 02E-128 (May 15, 2002)

FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

CITY OF PUNTA GORDA, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for Aall sworn law enforcement personnel of the city of Punta Gorda in the classification of police sergeant.@

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RC-2002-008; Order 02E-129 (May 15, 2002)

TEAMSTERS LOCAL UNION NO. 385, Petitioner,

v.

CITY OF PALM COAST, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for Aall operational services employees of the City of Palm Coast in the classifications of equipment operator I and II, maintenance technician I and II, mechanic,

sign technician, and tradesworker II.@

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CA-2002-036; Order 02GC-130 (May 15, 2002)

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

v.

CITY OF FORT PIERCE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by Aunilaterally changing its policy regarding the length of time its police officers may remain on administrative leave with pay during an investigation of their conduct.  The charge is sufficient to establish a prima facie violation of Section 447.501(1)(a) and (c), Florida Statutes, but not the alleged violation of Section 447.501(f).  Section 447.501(1)(f), Florida Statutes, prohibits a public employer from refusing to discuss a grievance "in good faith pursuant to the terms of the collective bargaining agreement with either the certified bargaining agent for the public employee or the employee involved." ...

...  The charge does not allege that either a grievance under the collective bargaining contract was filed by the PBA or that the City refused to process a grievance.  Rather, the charge states that the administrative leave with pay was governed by the City=s prior practice and policy rather than by a provision in the parties= collective bargaining agreement.  For these reasons, [that portion of] the charge does not establish a prima facie violation of Section 447. 501 (1) (f), Florida  Statutes.@

The other portions of the charge regarding unilaterally changing a policy is found sufficient and ordered to an evidentiary hearing.

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RC-2002-009; Order 02E-131 (May 15, 2002)

ORANGE COUNTY PROFESSIONAL FIREFIGHTERS, LOCAL 2057, Petitioner,

v.

ORANGE COUNTY FIRE RESCUE, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for Aall employees of the Orange County Fire Rescue Department in the classification of battalion chief.@

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RC-2002-018; Order 02E-132 (May 15, 2002)

LEE COUNTY PUBLIC EMPLOYEES ASSOCIATION, Petitioner,

v.

LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

PERC determines an appropriate blue-collar unit of employees and orders a secret ballot election.

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UC-2002-005; Order 02E-133 (May 15, 2002)

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCAL 1991, Petitioner,

v.

JACKSON MEMORIAL HOSPITAL/PUBLIC HEALTH TRUST, Respondent.

PERC dismisses the petition to clarify unit 1149 seeking to include more than 170 personnel.  Local 1991 Aasserts that the petitioned for positions had been inadvertently omitted when certification 1149 issued.  However, the petition fails to provide any facts that support this assertion.@

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CA-2002-033; Order 02GC-134 (May 22, 2002)

DAVID BOYNTON, Charging Party,

v.

AL SPICER MARBLE & TILE, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by refusing to pay Boynton=s wages.

AOn May 20, Spicer filed a response asserting that it is not a public employer.

The Commission's jurisdiction is limited to resolving disputes between public employees and their employers, as defined by Section 447.203, for the purpose of ensuring that the rights provided employees by Chapter 447, Part II, are not abridged, Inasmuch as Boynton's employer is not a public employer as defined by Section 447.203(2), Florida Statutes, the Commission is without authority to consider his charge.@

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RC-2002-028; Order 02E-135 (May 23, 2002)

LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 800, AFL-CIO, Petitioner,

v.

MIAMI-DADE COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES, Respondent,

PERC dismisses the petition seeking to represent a departmental bargaining unit.  No evidence was submitted to demonstrate why the Commission should deviate from its policy of abstaining from defining fragmented bargaining units.

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RC-2002-029; Order 02E-136 (May 23, 2002)

LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 800, AFL-CIO, Petitioner,

v.

MIAMI-DADE COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES, Respondent,

                  PERC dismisses the petition seeking to represent a departmental bargaining unit.  No evidence was submitted to demonstrate why the Commission should deviate from its policy of abstaining from defining fragmented bargaining units.

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RC-2002-003; Order 02E-137 (May 23, 2002)

PONCE INLET PROFESSIONAL FIREFIGHTERS, LOCAL 4140, Petitioner,

v.

TOWN OF PONCE INLET, Respondent.

PERC determines an appropriate firefighter/EMT and paramedic unit and orders a secret ballot election.

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RC-2001-062; Order 02E-138 (May 24, 2002)

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, Petitioner,

v.

VOLUSIA COUNTY, Respondent,

PERC determines an appropriate professional non-supervisory employees unit and orders a secret ballot election.

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CA-2001-058; Order 02U-139; (May 24, 2002)

JACKSONVILLE CONSOLIDATED LODGE NO. 5-30, FRATERNAL ORDER OF POLICE, Charging Party,

v.

CITY OF JACKSONVILLE, Respondent.

PERC finds that the City did not commit an unfair labor practice by failing to notify the FOP of, or give it an opportunity to provide input into, changes to health insurance plan benefits and premiums.  Further, the City is entitled to an award of attorney=s fees and litigation costs.

AThe [contractual] provisions require the City to pay the entire cost of a comprehensive medical group health plan for employees in the bargaining units and to pay 50 percent of the actual costs of such coverage for eligible dependents.  The employees pay the remaining 50 percent of the actual costs of dependents.  The agreements do not give a union veto authority over premiums or terms of the health insurance coverage.  The specific premium rates and the special benefits contained in the health plans have never been included in any of the collective bargaining agreements.@

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RC-2002-019; Order 02E-140 (May 24, 2002)

FLORIDA REGIONAL COUNCIL OF INDUSTRIAL AND PUBLIC EMPLOYEES, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Petitioner,

v.

ST. JOHNS COUNTY, Respondent.

PERC dismisses the petition seeking to add additional employee classifications to the bargaining unit [103] of blue-collar Road and Bridge Department employees.  The Commission has no authority to convert a unit clarification petition into a representation-certification petition seeking to add employees into an existing bargaining unit.  The hearing officer=s recommendations in the converse is adopted.  Consequently, PERC will not undertake to clarify a unit when a representation-certification petition is filed to clarify a bargaining unit.

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UC-2002-009; Order 02E-141 (May 24, 2002)

CITY OF SANIBEL, Petitioner,

v.

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, Respondent.

The petition is granted and Certification 1314 is amended to exclude the classifications of aquatics supervisor and deputy building official from a comprehensive bargaining unit of City employees.

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**UC-2002-016; Order 02E-142 (May 24, 2002)

SCHOOL BOARD OF BREVARD COUNTY, Petitioner,

v.

INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES, AFL-CIO, LOCAL UNION 1010, AN AFFILIATE OF DISTRICT COUNCIL #78, Respondent.

PERC grants the unopposed petition to clarify a wall-to-wall bargaining unit of non-supervisory, non-professionals school board employees, Certification 35.  The customer service representative classifications will be included in the unit and the secretary III title will be changed to administrative secretary.  Further, the five classifications mistakenly included in 2001 will be excluded from the bargaining unit.

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CA-2002-018; Order 02U-143 (May 24, 2002)

JOE FERRARA, Charging Party,

v.

CITY OF WEST MIAMI, Respondent.

PERC dismisses the charge that the City retaliated against an employee for his activities as a local union representative.  The charge was dismissed by the General Counsel because it was untimely filed more than six months after the employee knew of the retaliation.

AThe Commission will not accept an untimely appeal of a summary dismissal in the absence of compelling equitable circumstances.  E.g. Harris v. Department of Corrections, 26 FPER & 31193 (2000); Shelby and Terry v. City of Miami Beach, 25 FPER & 30224, recon. den. at  & 30251 (1999).  For example, the Commission will consider allegations that the late filing was caused by unreasonable the delay in delivering the mail.@

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

[From Attorney General=s Appellate Alert]

11^th U.S. Circuit Court of Appeals

ARetaliatory discharge - compulsory arbitration ...  Employees' refusal to agree to a compulsory arbitration provision regarding employment discrimination claims does not constitute protected activity for purposes of alleging a prima facie case of retaliation, the 11^th U.S. Circuit Court of Appeals held.

Five employees of an Alabama manufacturing company refused to accept an arbitration provision contained in new employee handbooks required as a condition of continued employment.  The provision mandated that all job-related employee claims must be resolved through arbitration, including all Title VII or other discrimination claims.  After being fired, the employees filed charges with the Equal Employment Opportunity Commission and filed suit, including claims for retaliation under Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act.  The company argued that the workers did not engage in statutorily protected conduct because they could not have reasonably believed that the mandatory arbitration provision was an unlawful employment practice, and therefore had failed to establish a prima facie case of retaliation.  The trial court found that the arbitration provision was lawful but that the workers reasonably, if mistakenly, believed it was unenforceable.  Therefore, the trial court said, the workers' refusal to sign the arbitration policy was protected activity and their firing constituted actionable retaliation.  The 11^th Circuit disagreed, citing a long line of cases ruling otherwise.

"We see no reason to depart from our own precedent, the mandate of the Supreme Court, and the holdings of almost every other circuit to find that compulsory arbitration agreements constitute an unlawful employment practice.  We are not persuaded that the plaintiffs in this case could have >reasonably believed= that such agreements were an unlawful employment practice at the time they refused to agree to the policy in 1999," the court said.  "(T)he plaintiffs may not stand on their ignorance of the substantive law to argue that their belief was reasonable."  [Weeks, et al., v. Harden Manufacturing Corporation, [Index linked, case not on line yet.] 5/22/02]@

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Florida Supreme Court

AProposed constitutional amendment - university governance ...  A proposed constitutional amendment changing the way Florida's university system is governed meets legal requirements and may appear on the ballot if sponsors gather enough signatures, the Florida Supreme Court said.

The initiative petition amendment, which is being promoted by former Governor Bob Graham, would create a two-tiered system of governance for the university system.  Under the proposal, each university would have a 13-member board of trustees, with a 17-member statewide board to coordinate policy for the university system.  Most, but not all, board members would be appointed by the governor.  The justices unanimously rejected critics' arguments that the amendment violated the single-subject requirement and that its ballot summary was misleading.

"(T)he only subject embraced in the proposed amendment is the two-tier system of governance of the state university system.  Its provisions, which create a statewide board of governors and local boards of trustees for each state university, are logically related to the subject of the proposed amendment," the court said.   [Advisory Opinion to the Attorney General re: Local Trustees and Statewide Governing Board to Manage Florida's University System, 5/23/02]@

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AAuthority of charter counties to set term limits ...  Charter counties cannot impose local term limits because the state Constitution provides the only conditions to disqualify a candidate for a constitutional county office, the Florida Supreme Court held.

In a 4-3 ruling, the court invalidated a provision of the Jacksonville charter imposing a term limit on the clerk of circuit court and a Pinellas County charter provision setting term limits for all county constitutional officers.  The court found that such terms limits amount to a disqualification from office, and said article VI, section 4(a) of the Florida Constitution provides the exclusive list of disqualifications that may be permissibly imposed.  The court also held that article VI, section 4(b) lists the only positions authorized by the constitution that can be subject to term limits (legislators and statewide elected officers).

"Clearly, by virtue of article VI, section 4(b), the Florida Constitution contemplates that term limits may be permissibly imposed upon certain offices authorized by the constitution.  By the constitution identifying the offices to which a term limit disqualification applies, we find that it necessarily follows that the constitutionally authorized offices not included in article VI, section 4(b), may not have a term limit disqualification imposed.  If these other constitutionally authorized offices are to be subject to a term limit disqualification, the Florida Constitution will have to be amended to include those offices," Chief Justice Wells wrote for the majority.

Justice Anstead, writing for the dissent, observed, "(T)he constitution explicitly grants broad authority to charter counties over charter officers, and, consistent with that grant, imposes no restrictions on a county's authority to regulate those officers."  [Cook v. City of Jacksonville and DeBlaker v. Eight is Enough in Pinellas, etc., 5/23/02]@

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2^nd District Court of Appeal

ALegal status of school advisory councils ...  Individual school advisory councils, though mandated by statute, are not legal entities for purposes of applying for charter school status or appealing the denial of such applications, the 2^nd DCA concluded.

The court granted the Polk County School Board's motion to dismiss an appeal brought by the Berkley Elementary School Advisory Council, or SAC.  The SAC sought to appeal the board's decision denying a charter school application, but the school board argued that the SAC lacked standing to appeal because it was never a party to the proceedings below.  The SAC contended that its appeal was proper under case law because it is a legal entity, as shown by the statutory mandate that school boards establish advisory councils for each school and the Polk board distributed a pamphlet informing schools of the requirement that they form SACs.  The DCA, however, disagreed.

"This court reluctantly concludes that a school advisory council is merely a voluntary association.  SAC is not a legal entity for purposes of filing an application under section 229.58;  therefore, it cannot pursue an appeal in this matter as though it had been the applicant," the DCA said.  [Berkley Elementary School Advisory Council v. School Board of Polk County, 5/17/02]@

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APublic records - private email on government computer  ...  Private email stored in government computers does not automatically become a public record by virtue of that storage, the 2^nd DCA held in denying a newspaper's public records request for email involving two municipal employees.

The DCA rejected a bid by the St. Petersburg Times to obtain copies of all email sent from or received by two City of Clearwater employees who used government-­owned computers.  The city provided copies of all email messages determined to be "public" by the employees, but withheld messages designated as "private."  The newspaper argued that it was entitled to all of the email stored by the employees on the city's computers but the DCA disagreed, noting that courts have said the mere placement of a document in a public official's file does not make it a public record.

"Although digital in nature, there is little to distinguish such e-mail from personal letters delivered to government workers via a government post office box and stored in a government-owned desk. ... This case demonstrates that the Public Records Act, chapter 119, Florida Statutes (2000), although permitting broad access to public records, is not an ideal tool for private citizens who wish to investigate the nongovernmental activities of government employees during work hours," the DCA said. 

"This case demonstrates that the current definition of public records limits the ability of chapter 119 to serve as a tool to ferret out government workers who spend much of their time on private matters while on the public payroll. ... (A) government employee who spends most of the day working on private matters and personal correspondence or viewing websites for personal entertainment can currently respond to a public records request by declaring that the records of it are not >public.=  It may be difficult to find a solution to this problem that balances individual privacy and the public's right of access, but the current approach is troublesome.  This issue, however, is a matter that must be addressed by the legislature.  At least in this context, it is not a matter for this court to resolve," the court added.  [Times Publishing Company v. City of Clearwater, 5/10/02]@

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3^rd District Court of Appeal

**AAnnual contract - property interest in employment ...  A teacher on continuing contract does not gain a property interest in his job entitling him to continuing status after he is promoted to administrative positions that normally don't carry job security, the 3^rd DCA said.

The court rejected the appeal of Stacey Jones, a Miami-Dade County school administrator who received a continuing contract as a teacher in 1972 but later was promoted into administrative positions with annual contracts.  The county school board accepted a supervisor's recommendation that Jones not be retained as an administrative staff specialist.  Jones was reemployed as a teacher as a result of the 1972 continuing contract, but sought reinstatement to the higher-level position.  Jones argued that once he attained continuing contract status as a teacher in 1972, that gave him tenure and a legitimate expectation of continued employment, even after he was promoted into the annual contract positions.  This, he contended, gave him a property interest in continued employment and the school board was required to renew his employment contract unless it established good cause for terminating him.   The DCA disagreed.

"Mr. Jones attained continuing contract status in the position of teacher.  However, that status did not automatically follow him when he was subsequently promoted" the DCA said.  "The plain language of each of the appellant's annual contracts for assistant principal, principal, and staff assistant indicated that there was no entitlement to continued employment beyond the completion of the individual contract year.  That being so, there was no entitlement to a hearing under (due process cases) or under the Florida Administrative Procedure Act."  [Jones v. Miami-Dade County Public Schools, 5/22/02]@

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4^th District Court of Appeal

ACollateral estoppel - whistle-blower claim  ...  A federal court's determination that a public employee was not fired for illegally discriminatory reasons does not preclude the employee from pursuing a state whistle­blower claim against her government employer, the 4^th DCA said.

The DCA revived a lawsuit against the City of Fort Lauderdale by Deborah Rice­Lamar, who was fired from her position as the city's affirmative action specialist because she attempted to use official reports to express her opinion that the city's hiring practices were discriminatory.  A federal court determined that Rice-Lamar was fired not for expressing her views but rather for insubordination for including those views in official reports after she was expressly told not to do so by.  After the federal court ruled, Rice-Lamar pursued her whistle-blower complaint in state court, where the city argued for collateral estoppel based on the federal court decision.  The DCA concluded that the elements necessary to support a whistle-blower claim are distinct from those in a discrimination claim and therefore collateral estoppel does not apply.

"(T)he federal court's conclusion that Lamar was not terminated for discriminatory (race/gender related) reasons or for exercising her First Amendment right to free speech is not determinative of the issues relating to her state whistleblower claim.  The fact that the federal court determined that she was terminated for insubordination has no bearing on whether she was retaliated against for her disclosure of alleged discriminatory practices by the City," the DCA said.  [Rice-Lamar v. City of Fort Lauderdale, 5/15/02]@

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

Attorney General's Opinions

**APublic records provided through private entity ...  In response to a request from the general counsel for the Pasco County District School Board, the Attorney General issued an advisory opinion stating in sum:  "The District School Board of Pasco County is not authorized to require that production and copying of public records be accomplished only through a private company that acts as a clearinghouse for the school district's public records information pursuant to a contract between the school district and the private company.

Although the district may, for its convenience, contract with private companies to provide information also obtainable through the district, it may not abdicate its duty to produce such records for inspection and copying by requiring those seeking public records to do so only through its designee and then paying whatever fee that company may establish for its services.  The district is the custodian of its public records and, upon request, must produce such records for inspection and copy such records at the statutorily prescribed fee."   [AGO-2002-037 5/20/02]@

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MISCELLANEOUS

Tentative Agreement Reports

FEN Calendar

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

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is a joint venture of the

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