Except for a right to strike, public employees have the same rights of collective bargaining as do private employees under provision of the Constitution stating that the right of employees through labor organization to bargain collectively could not be denied.

The Legislature must enact appropriate legislation setting out standards and guidelines and otherwise regulate collective bargaining.

Statute stating that no person or group of persons, by intimidation or coercion, could compel any employee to join or refrain from joining labor organization, was compatible with constitutional provision granting employees the right to bargain collectively through labor organizations and precluded labor organization from acting as sole bargaining agent for all teachers of school system where all teachers in system have not agreed that organization act as their bargaining agent.

Dues check-off for a labor organization which did not represent all teachers in school system would be valid only where the teacher on his or her own volition agreed there might be such a check-off as to his or her salary, and check-off could be afforded only during existence of a current teaching contract.

Where a labor organization did not represent all teachers in school system, school board could properly allow organization access to interschool mail facilities and bulletin board space and furnish it with teacher lists and permit it to hold meetings on school property so long as same privileges were afforded all teachers or their collective bargaining organizations, but any such privileges or considerations would be subject to cancellation by the school board at any time in its sound and sole discretion.

Where a labor organization did not represent all teachers in school system, any grievance procedures conducted by it pursuant to agreement with the school board would not apply to non-consenting teachers.

2. Dade County Classroom Teachers Association, Inc. v. Legislature, 269 So.2d 684 (Fla. 1972).

The doctrine of separation of powers prohibits issuance of a writ of mandamus to compel the Legislature to enact collective bargaining guidelines.

If the Legislature does not act within a reasonable time, the Supreme Court will be forced to fashion guidelines to meet constitutional requirements.

3. Local 532. AFSCME v. City of Ft. Lauderdale, 273 So.2d 441 (Fla. 4th DCA 1973), appeal after remand, 294 So.2d 104 (Fla. 4th DCA 1974).

Although public employees have the constitutional right to organize, any employee organization which asserts the right to strike is not entitled to recognition.

Many of the problems incident to collective bargaining could be avoided by the enactment of statutory guidelines. See Case No. 4, this index.

4. Town of Palm Beach v. Palm Beach Local 1866, 275 So.2d 247 (Fla. 1973).

Court affirmed trial court's finding that union should not be recognized because it endorsed a strike by conduct.

5. Local 532. AFSCME v. City of Ft. Lauderdale, 294 So.2d 104 (Fla. 4th DCA 1974).

A general law covering collective bargaining for fire fighters which is an overall revision of the law on the same subject supersedes any special law regulating collective bargaining for local fire fighters.

6. City of Gainesville v. State ex rel. IAFF, Local 2157, 298 So.2d 478 (Fla. 1st DCA 1974).

A City fire department budget proposal, which was prepared in the normal and required course of municipal business, was a "public record" and, under the Public Records Act, the City was required to make the proposal available to all citizens, including the fire fighters' union, for their inspection.

Statute exempting from Public Records Act all work products developed by a public employer in preparation for or during negotiations was inapplicable to a budget proposal which was prepared in the normal and required course of municipal business, as proposed budget was not developed in preparation for or during labor negotiations and the exemption statute was not to take effect until a later date.

7. Stevens V. Home, 325 So.2d 459 (Fla. 4th DCA 1975).

Action of union members in hanging non-union employee in effigy with implied threat of violence toward him was a clear violation of Section 447.09(11), Florida Statutes, prohibiting coercion or intimidation of any employee in enjoyment of his legal right.

8. PERC v. FOP, Local Lodge 38. and City of Naples, 327 So.2d 43, 2 FPER 15 (Fla. 2d DCA 1976).

Federal courts do not have concurrent jurisdiction with the National Labor Relations Board to determine matters which are arguably within the scope of the National Labor Relations Act's unfair labor practice provisions.

City is not entitled to a circuit court determination of whether it would be an unfair labor practice to give a pay raise to the Naples police Department at a time when there is pending before PERC a petition for certification filed on behalf of certain members of that department because (1) PERC has exclusive jurisdiction to determine unfair labor practices which is reviewable by the DCA and (2) the philosophy of Florida Legislature seems to be the same as the federal pre-emption policy expressed in Amalgamated Ass'n of St. Elec. RV. and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).

9. PERC v. City of Naples, 327 So.2d 41, 2 FPER 14 (Fla. 2d DCA 1976).

Under local option statute allowing cities to adopt procedures for bargaining with public employees by ordinance, PERC's approval of such procedures is a condition precedent to city's assumption of jurisdiction under such ordinance. Constitutional and statutory "Home Rule" provisions do not give municipalities the power to enact local options without PERC approval because state preempted to itself the subject of public employee collective bargaining.

Requiring that PERC approve city ordinances governing collective bargaining with public employees before such ordinances go into effect does not constitute infringement by an administrative body on power of judicial branch of government, for the Commission's administrative determinations are subject to judicial review.

10. Maxwell v. School Board of Broward County, 330 So.2d 177, 2 FPER 55 (Fla. 4th DCA 1976).

Jurisdiction over labor activities is preempted in favor of PERC if activities are arguably covered by provisions of Chapter 447, Part II, Florida Statutes.

Not every activity or dispute between public employees and their public employer gives rise to preemptive jurisdiction of PERC; only those activities arguably covered by the Public Employees Relations Act (PERA).

Cancellation by School Board of incentive awards program, for which teachers' association alleged it had suffered damages, was not labor activity arguably covered by PERA and more closely resembled a breach of a collective bargaining agreement. Thus, jurisdiction of circuit court over such activities was not preempted in favor of PERC.

PERA is remedial in nature and does not fall within the general prohibition against retrospective application of statutes.

11. City of Titusville v. PERC and Brevard County PBA, 330 So.2d 733, 2 FPER 48 (Fla. 1st DCA 1976), rev'g 1 FPER 16 (1975).

Appropriate method for review of order issued by PERC on an "RA" petition is by way of petition for review under the APA rather than petition for writ of certiorari.

Where an "RA" petition has been filed, PERC has no authority to change the composition of proposed bargaining unit and certify it as changed. If PERC finds the unit not appropriate, it should enter an order denying certification based on an evidentiary hearing in which all parties are given notice adequate to apprise them of the issues as specifically as they can be stated so that parties will know the specific objections they must meet. The order entered thereafter should include findings of fact and conclusions of law separately stated.

Regardless of whether action of PERC in enlarging proposed bargaining unit was viewed as quasi-executive action rather than quasi-judicial action, it was subject to judicial review under the new APA.

Chairman of PERC did not have authority to deny city's petition for rehearing of bargaining certification petition independently of the other two Commissioners who heard and ruled on the case.

Where PERC allowed fifteen minutes for hearing on petition recognizing proposed bargaining unit for employees in city's police department and hearing was not one at which sworn testimony and evidence was presented but consisted merely of discussion between members of the Commission, their staff, and union representatives and result of meeting was that scope of bargaining unit was increased, neither the hearing nor action taken thereafter complied with statute.

12. LIUNA, Local 666 v. PERC, No. BB-346 (Fla. 1st DCA 1976).

Unpublished order granting stay of election.

13. School Board of Marion County v. PERC, 330 So.2d 770, 2 FPER 57 (Fla. 1st DCA 1976), rev'g Marion County Education Association and Marion County District School Board, 1 FPER 28 (1975).

Where an "RA" petition has been filed, PERC shall review only the appropriateness of the unit and is not permitted to redefine the unit. Nonetheless, where review was not sought of PERC's order, which altered the unit and certified it as changed, such order was not affected by determination of impropriety.

PERC lacked authority to enter order in which it determines the managerial status of certain employees where certain employees determined not to be managerial were contemporaneously added to an "RA" unit by the Commission.

Where a statutory provision stated that the Commission shall review only the appropriateness of the RA unit, rule purportedly promulgated pursuant to such authority and which, inter alia, permitted public employer to file a petition with the Commission seeking designation of managerial and confidential employee classifications exceeded the statutory authority and was invalid.

Any rule which permits exclusion of employees from collective bargaining process, should, at some point, give affected employees or their representatives notice and an opportunity to contest their managerial confidential designation.

14. Broward County Classroom Teachers Association, Inc. v. PERC, 331 So.2d 342, 2 FPER 61 (Fla. 1st DCA 1976).

PERC may seek to enforce or implement statutory prohibition against strikes by public employees even in absence of an unfair labor practice charge having been lodged with it.

Failure of PERC to adopt rules of procedure governing investigation or imposition of sanctions for strikes by public employees is not fatal to proceeding because Commission may use APA model rules.

15. City of Panama City v. PERC and Northwest Florida PBA, 333 So.2d 470, 2 FPER 63, reh'g denied, 2 FPER 109 (Fla. 1st DCA 1976).

PERC's determination of an appropriate bargaining unit and direction of election are not final orders, and therefore are reviewable only if the Court finds that review of final Commission's decisions would not provide an adequate remedy.

City's filing of petition seeking review of PERC's order did not of itself stay enforcement of Commission's orders and proper method of obtaining stay would be to first apply to Commission for supersedeas. See Case No. 19, this index.

16. School Board of Sarasota County v. PERC, 333 So.2d 95, 2 FPER 107 (Fla. 2d DCA 1976).

PERC's order, that an election by secret ballot to be held within forty-five days for a certain unit, would not be construed as final agency action subject to judicial review. Rather, a certification following the election would constitute final agency action from which a petition for review might be filed at which time the issue of bargaining unit appropriateness might be raised.

17. City of Jacksonville v. PERC, 2 FPER 107 (Fla. 1st DCA 1976), denying motion to dismiss Jacksonville Fraternal Order of Fire Officers and Consolidated City of Jacksonville, 2 FPER 39 (1976).

The Court denied PERC's motion to dismiss petition for review of PERC's order directing a self-determination election. The Court found that since a subsequent election was held and an order certifying a collective bargaining agent was issued, the latter order should more properly be reviewed by the Court. The Court therefore denied PERC's motion to dismiss, subject to the City of Jacksonville filing a copy of the latter order with the Court.

18. School Board of Marion County v. PERC, 334 So.2d 582, 2 FPER 101 (Fla. 1976).

A public employer's good faith allegation that employees' signatures on authorization cards were obtained by collusion, coercion, intimidation or misrepresentation or that signatures are otherwise invalid is sufficient to require the Commission to give access to the authorization cards and the Commission is not authorized to review or test the employer's judgment or assertions at that stage of the proceedings. But, one or more of the enumerated grounds for pre-hearing access must be specifically alleged in order for the Commission to be required to give access to authorization cards.

19. City of Panama City v. PERC and Northwest Florida PBA, 2 FPER 109 (Fla. 1st DCA 1976).

The Court found that PERC's order certifying an employee organization as the exclusive collective bargaining representative of employees in a designated unit is "final" for purposes of judicial review of that order and all prior interlocutory orders. Should PERC them refuse to stay bargaining pending court review, the Court has authority to grant that relief in order to make its jurisdiction effective. See Case No. 15, this index. The Court denied a petition for re-hearing.

20. LIUNA, Local 666 v. PERC and Florida State Employees Council 79 AFSCME, 336 So.2d 450, 2 FPER 132 (Fla. 1st DCA 1976), rev'g Florida State Council 79, AFSCME and Transport Workers Union, Joint Council Florida and State of Florida, 2 FPER 64 (1976).

PERC order, which rescinded previous order granting joint intervenor status to union locals in an "RC" case hearing, was a reviewable final order, since it finally adjudicated locals' rights in the proceeding.

Where Chairman of PERC gave his consent to union local's intervention in an "RC" case hearing, and at the time of intervention local had necessary 10% showing of interest among employees in proposed unit, but for good cause had not filed financial report, before Chairman summarily excluded local as parties, local should have been given a reasonable time to comply with financial statement requirement. The Chairman's subsequent summary revocation of his approval, and concurrence therein by Commission, was abuse of discretion.

21. City of Jacksonville v. PERC, No. BB-218 (Fla. 1st DCA 1976).

This is an unpublished order denying PERC's motion to dismiss a petition for certiorari which sought review of a PERC order of certification. The Court rejected PERC's argument that appropriate time for review would be after issuance of final order pursuant to Section 447.503, Florida Statutes. The Court stated that am order of certification is a final order for purposes of judicial review of procedures leading up to certification.

22. North Brevard County Hospital District, Inc. v. PERC and LIUNA Local 666, No. BB-431 (Fla. 1st DCA. 1976).

This is an unpublished order granting PERC motions. The Court admitted it had erred in not granting a prior PERC motion to dismiss the petition for certiorari on the ground that orders entered by PERC prior to an order of certification are not final agency action for purposes of judicial review. However, the Court declined to dismiss the petition for certiorari and instead stayed the proceedings pending entry by PERC of an order of certification.

23. ATU, Local 1267 v. PERC, 344 So.2d 319, 2 FPER 136 (Fla. 1st DCA 1976), denying review of Federation of Public Employees and Broward County and Local 675. IUOE, 3 FPER 23 (1976).

The Court denied petitions for review of PERC orders in the following three cases which had been consolidated: Federation of Public Employees and Broward County and Local 675, IUOE RC-752-0104, Teamsters Local Union 769, IBTCWHA and Broward County, RC-763-0008, and Local 1267 ATU and Broward County, RA-754-0178, 3 FPER 23 (1976).

Where several employee organizations, including Petitioner and Respondent, petitioned for certification as bargaining representative for several overlapping proposed units of County employees, and where PERC determined that each proposed unit was inappropriately narrow and instead itself determined an appropriate broader unit and granted each of the unions leave to submit "interest statements" indicating that 30% of the PERC-proposed unit desired the particular union as its representative, and where only Respondent union made the requisite showing of interest and PERC ordered an election to determine whether Respondent union would become the designated bargaining agent for the proposed union, PERC's concomitant dismissal of Petitioner union's petition for certification was not final agency action as to Petitioner union and therefore not subject to judicial review. This dismissal was an interlocutory step in the proceeding by which Respondent union still pressed for PERC certification. At this point in the proceedings Petitioner union and the other unions that failed to make the requisite showing of interest with regard to the unit proposed by PERC remained parties to the proceeding and could obtain judicial review following certification of Respondent union, if that occurred.

All parties before PERC other than the appellant are appellees before the DCA.

24. Pasco County School Board v. PERC, 336 So.2d 483 (Fla. 1st DCA 1976).

PERC is responsible for preparing record for review by the Courts of Appeal. The great bulk of material described in the School Board's directions to PERC was never referred to in the evidence received or proffered at the hearing and therefore is not properly to be included in the record for review prescribed by Section 120.68(5), Florida Statutes (1975). For additional cases on record for review, see City of Panama City v. PERC, No. CC-420 (Fla. 1st DCA 1976); University of South Florida College of Medicine Faculty Association v. PERC, 338 So.2d 1286 (Fla. 1st DCA 1976); ATU, Local 1464 v. PERC and the City of Tampa 338 So.2d 1285 (Fla. 1st DCA 1976); ATU, Local 1267 v. PERC and Federation of Public Employees, Inc,. Local 675, 3 FPER 17 (Fla. 1st DCA 1976), in which the Court barred PERC from filing notion to strike portions of directions to PERC pertaining to the record, unless PERC counsel certified that efforts to reach an acceptable agreement with the other parties' counsel have been unavailing; and City of Lauderhill v. Florida PERC and Florida State Lodge, FOP, 4 FPER  4256 (Fla. 4th DCA 1978), in which the Court ordered PERC to transmit the entire record to the Court since the City failed to include with its request to exclude certain transcripts from the record on appeal a statement of judicial acts to be reviewed as required by Fla. R. App. P. Rule 9.200(a)(2). Appellant's notice of dismissal was granted, City of Lauderhill v. PERC, 360 So.2d 1264 (Fla. 4th DCA 1978).

25. City of Orlando v. PERC, 338 So.2d 259 (Fla. 4th DCA 1976).

The Court held that certiorari does not lie at the present time because there is no final order until certification, based on the rationale set forth in Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976) and School Board of Sarasota County v. PERC, 333 So.2d 95 (Fla. 2d DCA 1976).

26. State ex rel. City of Bartow v. PERC, 341 So.2d 1000, 3 FPER 7 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 170 (Fla. 1977).

Petitioner sought writ of mandamus to compel PERC to disclose investigatory files. ULP investigatory files are public records but are not subject to disclosure until issuance of a complaint or dismissal of a charge.

27. Murphy v. Mack, 341 So.2d 1008, 3 FPER 8 (Fla. 1st DCA 1977), rev'd in part, 358 So.2d 822, 4 FPER  4104 (Fla. 1978).

The Court affirmed the following PERC orders: Osceola County PBA and Murphy, 2 FPER 35 (1976) and Florida State Lodge, FOP v. Heidtnan, 2 FPER 134 (1976). The Court held that a county sheriff is a public employer since office of sheriff is an agency of the state within the meaning of the statutory definition of public employer as "the state or any county, municipality, or special district or any subdivision or agency thereof which the Commission determines has sufficient legal distinctiveness properly to carry out the functions of a public employer."

The Court further held that although deputy sheriffs are appointed public officers, they are public employees within meaning of statutory provisions pertaining to labor organizations. See Case No. 45, this index, for Supreme Court decision.

28. School Board of Marion County v. PERC and District Council 66, IBPAT, 341 So.2d 819, 3 FPER 30 (Fla. 1st DCA 1977), aff'g 2 FPER 150 (1976), cert. denied, (Fla. May 30, 1979) (unpublished order)

When an employee organization can show at least thirty percent representation in a proposed unit, it may file a petition for certification with PERC without first requesting recognition by the public employer.

29. Warden v. Bennett, 340 So.2d 977, 3 FPER 29 (Fla. 2d DCA 1976).

Nothing in Chapter 447, Part II, Florida Statutes, suggests that public records should not be furnished to those engaging in organizing government employees. The fact that the Legislature provided a specific exemption of work products under 447.605(3), Florida Statutes, suggests that the Legislature intended no other exemptions.

30. FEA/United v. PERC, 346 So.2d 551, 3 FPER 32 (Fla. 1st DCA 1977), aff'g Order No. 76E-854 (Fla. PERC Feb. 27, 1976).

Rule requiring non-union public employees to pay union pro rata share of bargaining costs as condition of employment would be unconstitutional.

Where question of constitutional implications of proposed rule was inseparable from questions of whether to adopt rule, Commission properly considered constitutional implications of proposed rule and, in so doing, did not violate separation of powers doctrine nor invade judicial function.

While the Court has no authority to compel agency adoption of a rule representing a policy choice in area of agency's statutory concern, where agency declines on constitutional grounds to adopt rule, the Court will review the agency's final action on petition by an aggrieved party.

31. Miami-Dade Community College District Board of Trustees v. PERC and Miami-Dade FHEA, 341 So.2d 1054, 3 FPER 33 (Fla. 1st DCA 1977), rev'g No. RC-744-4003 (Fla. PERC Jan. 15, 1976).

PERC order on remand can be found at 3 FPER 77A (1977).

Rejecting Commission determination made pursuant to statute prior to its amendment, the Court held that under amended statutory definition of managerial employee, chairpersons of college departments, are managerial employees.

32. City of Tampa v. PERC, 344 So.2d 634 (Fla. 2d DCA 1977), dismissing appeal from Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 3 FPER 36 (1976).

PERC had not made a determination of the managerial status of Tampa Police Department sergeants, therefore, petition charging that PERC erred in making such determination was dismissed.

33. City of Miami v. FOP, 346 So.2d 100, 3 FPER 2198 (Fla. 3d DCA 1977).

Where, under terms of bargaining agreement, probationary police officers were entitled to a hearing before a departmental disciplinary review board before they could be dismissed; the Court held that an order for production of documents, including employment applications of probationary police officers, was not justified since requested documents were not pertinent. The discharged probationary officers later brought suit in Dade County Circuit Court and each plaintiff was granted a money judgment. In a second appeal the Third District Court of Appeal reversed and remanded, holding that the plaintiffs had not exhausted administrative remedies. See City of Miami v. Fraternal Order of Police, Lodge 20, 378 So.2d 20 (Fla. 3d DCA 1979).

34. Seitz v. Duval County School Board, 346 So.2d 644 (Fla. 1st DCA 1977).

Where a contract contained no provision for attendance by union representative at a meeting between principal and teacher, teacher had no right to presence of union representative at such meeting unless that right was extended by statute as a matter of policy to all public employees, an issue not decided in this case.

When a teacher, who claimed she had right to have union representative present at meeting with a principal, had an opportunity to meet with the principal under protest and preserve her claim that the meeting was coerced and therefore an unfair labor practice but instead refused to meet with the principal concerning her performance of her duties, her dismissal was justified.

35. Duval County School Board v. Seitz, 346 So.2d 647 (Fla. 1st DCA 1977)

The petition for review of PERC's interlocutory order denying petitioner's motion to dismiss the unfair labor practice charge was denied.

36. Duval County School Board v. PERC and Duval Teachers United, 346 So.2d 1087, 3 FPFR 231 (Fla. 1st DCA 1977).

Public employer's filing of petition for review of unfair labor practice order of PERC does not produce an automatic stay.

37. Pinellas County PBA v. Hillsborough County Aviation Authority, 347 So.2d 801, 3 FPER 232 (Fla. 2d DCA 1977).

A civil service board is not legally required to amend rules which conflict with a collective bargaining agreement.

A public employee's constitutional right to collectively bargain is not co-extensive with an employee's right to so bargain in the private sector; certain limitations on the former's rights are necessarily involved.

38. City of Winter Park Professional Fire Fighters, Local 1598, denying review of No. RC-756-1016 (Fla. PERC July 22, 1976).

Once the required factual determination is made by the Commission as to the managerial/confidential status of employees, DCA's review is limited to a determination of whether there has been a departure from the essential requirements of law and whether there is competent substantial evidence to support the determination.

39. United Faculty of Florida v. Branson, 350 So.2d 489, 3 FPER 489 (Fla. 1st DCA 1977).

Authorization cards discoverable under PERC restrictions are exempt from the free access provided by the Public Records Act.

Circuit court had jurisdiction to determine applicability of Chapter 119, Florida Statutes, but did not have jurisdiction to determine whether authorization cards should have been produced for inspection pursuant to Section 447.307(2), Florida Statutes.

Request for access to authorization cards was untimely where request was made after close of hearings on adequacy of showing of interest.

Registration of employee organization is necessary only for those which desire to request recognition by public employer or an election for collective bargaining purposes.

Employee organizations which do not desire to request recognition or an election for collective bargaining purposes have no statutory right of participation in an employee election and are without standing to object to election and post-election procedures of PERC. Relates to 2 FPER 50 (1976).

40. School Board of Escambia County v. PERC and Escambia Education Association, 350 So.2d 819, 3 FPER 270 (Fla. 1st DCA 1977), aff'g 2 FPER 93 (1976).

School Board had engaged in "surface bargaining" and had failed to bargain in good faith where it maintained that certain major issues were non-negotiable, insisted on a "total package agreement," failed to punctually attend scheduled meetings, and failed to provide union with relevant information.

Prohibition against strikes by public employees was intended to protect the public and not to give public employers an advantage over their employees in collective bargaining.

School Board's photographic surveillance of picketing employees was coercive, and therefore an unfair labor practice, irrespective of subsequent use of photos.

School Board failed to bargain in good faith on dues deduction.

Pursuant to amended Section 447.303, Florida Statutes, dues deduction shall commence upon written request and shall be enforced as long as the organization remains the certified bargaining agent for employees.

41. Columbia County Board of Public Instruction v. PERC and Columbia County Transportation and Maintenance Workers Association, 353 So.2d 127, 4 FPER  4032 (Fla. 1st DCA 1977), aff'g 3 FPER 58 (1977), cert. denied, 357 So.2d 185 (Fla. 1978).

A public employer commits a ULP where its motive for discharging an employee is to punish for or discourage union activity and where "BUT FOR" employee's union activities, employee would not have been discharged.

Once an employee shows a prima facie violation, the burden is on the employer to disprove that his motive was to discourage union activity. See Case No. 42, this index.

Good faith reliance of School Board on Superintendent's tainted recommendation did not isolate impermissible motive from its causative effect.

42. Pasco County School Board v. PERC and Teachers Association, Inc., 353 So.2d 108, 4 FPER  4033 (Fla. 1st DCA 1977), aff'g in part and rev'g in part 3 FPER 9 (1976).

In absence of either a timely challenge to the rule or an objection during the administrative proceeding, court declined to express opinion as to whether there was valid delegation of authority to PERC general counsel to prosecute unfair labor charges.

A combination of investigative, prosecutorial, and adjudicative functions in one body does not, per se, create an unconstitutional risk of bias, and one so claiming must show prejudice.

APA requirement that findings of fact and conclusions of law be separately stated was not violated by PERC's order which specifically adopted findings of hearing officer who had submitted detailed report and recommended order separately stating findings of fact and recommendations.

Since the action of an agency following a full hearing before a hearing officer is in the nature of procedural review, a hearing officer's findings of fact are binding on the agency in absence of explicit determination that findings were not based on competent substantial evidence.

Before PERC may reject or modify hearing officer's findings of fact, it must first determine from a review of entire record that the findings were not based on competent substantial evidence.

Where a Florida statute is patterned after a federal law on the same subject, it will take the same construction as its prototype has been given in the federal courts.

A district court of appeal can set aside agency's order only if it finds that the order depends on findings of fact which are not supported by competent substantial evidence.

Where charge alleges a ULP based upon public employer's discharge of employee for protected union activity, burden is on claimant to show by a preponderance of evidence that his/her activity was a substantial or motivating factor in employer's decision to discharge. Burden then shifts to public employer to show by preponderance of evidence that, notwithstanding existence of factors relating to protected activity, it would have made same decision affecting employee anyway. See Case No. 41, this index.

In considering School Board's explanation for not rehiring teacher, hearing examiner should attempt to strike equitable balance between rights of Board, whose duty it is to promote efficiency of public services, and rights of non-tenured public school teacher to be secure in his employment, free from discrimination due to his union activity.

In the absence of showing of anti-union motivation, employer may discharge or suspend employee for good reason, bad reason, or no reason at all.

If entire evidence presented were only hearsay, then reviewing Court would be required to set aside agency action not supported by competent and substantial evidence. APA allows admission of hearsay at agency hearings when used for the purpose of supplementing or explaining other evidence but precludes its admission if solely used to support a finding unless it would be admissible over objective in civil action. If hearsay is corroborated by otherwise competent substantial evidence, it is admissible.

The statutory duty to bargain prohibits an employer from imposing unilateral changes in working conditions during the pendency of negotiations.

Unilateral action by an employer affecting changes in wages or working conditions has generally been held justified only after parties have bargained to impasse.

The Board's uncertain fiscal future did not excuse failure to bargain in good faith, as Board was mandated by the Act to offer reasonable counter proposals; subjective showing of bad faith was not necessary to find violation of section of Act requiring parties to bargain collectively.

Employer who in good faith negotiates with union and makes offers to union which union rejects may then unilaterally initiate its proposals as terms and conditions of employment without committing unfair labor practice.

Findings of fact by the hearing officer should be based exclusively on the evidence of record and on matters officially recognized.

43. School Board of Pinellas County v. PERC and Pinellas County Custodial Union 1221, IBF&O, 354 So.2d 909, 4 FPER  4068 (Fla. 2d DCA 1978), aff'g 3 FPER 158 (1977).

The PERC Chairman had no authority to act by himself in the issuance of an order of certification. The fact that PERC was undercapitalized and that, of its members, only the Chairman was a full-time employee did not give the Chairman legal authority to do something the Commission as a whole was required to do.

School Board was guilty of a refusal to bargain despite its contention that the union made no request to bargain at a time when it was validly certified. The Court found the union had substantial justification for believing that it represented the bargaining unit when it made its several bargaining requests and, therefore, these three previous requests, though made prior to the date of valid certification, were continuing in nature and continued beyond the date of valid certification.

Since certification following election constitutes final agency action for purposes of judicial review, proper action for School Board to take if in doubt of propriety of union's certification would be to file a petition for review of PERC's order of certification in the District Court of Appeal, raising the issue of the appropriateness of the bargaining unit. Since no petition was filed, the Court will not determine the propriety of the certification.

Where School Board doubted propriety of union's certification, proper action for School to take, in addition to filing a petition for review of order of certification, was to seek a stay of the certification order from either PERC or the Court. Since PERC's certification order was not stayed, School Board was obligated to enter into collective bargaining with union.

44. Duval County School Board v. PERC and Duval Teachers United, 353 So.2d 1244 (Fla. 1st DCA 1978), aff'g 3 FPER 96 (1977).

Good faith bargaining requires the parties to actively participate in negotiations with an open mind and a sincere desire, as well as making a sincere effort to resolve differences and come to an agreement.

Whether a party bargains in good or bad faith is a factual determination based on the circumstances of the particular case. The overall conduct of the parties throughout the course of negotiations must be considered.

Good faith is a matter of intent to be determined by inference from a party's conduct. Where Commission not only had evidence of the Board's state of mind in the form of its external conduct, which would be sufficient in and of itself to support the Commission's finding, but also had before it a memorandum explicitly stating non-negotiable issues, Commission had competent substantial evidence to support its finding that the Board failed to bargain in good faith.

Where the Board and the employee union had already gone through the impasse procedure provided by Section 447.403, Florida Statutes, PERC nonetheless had the authority under Section 447.503(4)(a), to order the Board to bargain in good faith over monetary benefits for 1976-77.

The Court quoted with approval from Commission's order, stating that an employer will not be permitted to engage in a course of conduct tantamount to a refusal to bargain and subsequently be allowed to "cleanse" its illegal activity through the statutory impasse procedures. Impasse proceeding shall not be used by employer to circumvent its duty to bargain in good faith.

45. Murphy v. Mack, 358 So.2d 822, 4 FPER  4104 (Fla. 1978), aff'g in part and rev'g in part 341 So.2d 1008, 3 FPER 8 (Fla. 1st DCA 1977).

A county sheriff is a public employer since office of sheriff is an agency of the State and possesses requisite control over terms and conditions of employment of its personnel and is distinct from other County offices.

Appointed deputy sheriffs are not public employees since deputy sheriff holds office by appointment rather than employment and is invested with the same sovereign power as the chief law enforcement officer of the County and since courts cannot assume that Legislature intended to include deputy sheriffs within definition of public employer without express language to that effect. See Case No. 27, this index, for First District Court of Appeal decision.

46. Geiger and Duval Teachers United v. Duval County School Board, 357 So.2d 442, 4 FPER  4145 (Fla. 1st DCA 1978).

Union has no first amendment rights to use school mailbox facilities, bulletin boards or lunchroom, therefore provision granting union access to such facilities but with limitation is not subject to First Amendment attack.

Board's order restricting certain teacher's union activities which, because of its broad language, might prevent teacher-to-teacher contact and teacher-to-teacher conversation concerning school administration that might be considered less than complimentary in their characterizing of attitudes of administration personnel constituted a First Amendment infringement upon the rights of members of teachers' union.

While School Boards must meet a burden of justification in order to enforce a regulation that touches upon a teacher's First Amendment rights, the mere assertion in a complaint that the teacher's First Amendment right has been infringed upon does not put the School Boards to the test. It is incumbent upon teacher or teacher group to first establish that their First Amendment rights have, as a matter of fact, been imposed upon by policies adopted by the School Board.

47. St. Petersburg Junior College v. PERC and CWA, 358 So.2d 1103, 4 FPER  4176 (Fla. 1st DCA 1978), rev'g 3 FPER 198 (1977), cert. denied, 366 So.2d 884 (Fla. 1979).

Chief Judge Mills, writing for the Court, dismissed the unfair labor practice complaint against the College for refusing to grant classroom use to the union, which was attempting to reorganize College's employees, while allowing civic and cultural organizations to rent classrooms because union failed to demonstrate by evidence that it was of same class as groups which were permitted to rent college facilities for various purposes.

Judge Smith concurred with a separate opinion stating that a labor union was not necessarily, by its very nature in a different class than other organizations which were permitted to rent College classrooms for meetings. Judge Ervin, concurred and dissented with the opinions expressed by Mills and Smith.

48. City of Punta Gorda v. PERC and District Council 66, IBPAT, 358 So.2d 81, 4 FPER  4175 (Fla. 1st DCA 1978), denying review of 3 FPER 48 (1977) and 3 FPER 111 (1977), cert. denied, 365 So.2d 710, 5 FPER  10025 (Fla. 1978).

A PERC ruling upon a proper party's objections to union election is one in which the substantial interests of a party are determined by an agency. Therefore, the hearing provisions of the Administrative Procedures Act (APA) apply, Section 120.57, Florida Statutes.

Formal hearing provisions of the APA were waived where neither City nor union requested formal hearing on objections to PERC order validating union election.

APA does not require an agency to convene an un-requested formal hearing whenever it perceives the possibility of a disputed issue of material fact; a substantially affected person must affirmatively seek such a hearing.

Section 120.57(2) of the APA, which governs informal proceedings required when agency action is challenged, contemplates that a proceeding be held, not necessarily a hearing.

Procedural requirement of APA governing informal proceedings when agency action is challenged were met when City petitioned for PERC review of Chairman's report dismissing the City's objection and validating a union election held among City employees.

Where City and union agreed in writing before union election on the hours and eligible voters, post election challenge by City was not proper.

DCA deferred to PERC judgment as to lack of unfair campaign tactics on part of union in union election held among City employees.

49. City of Winter Haven v. PERC and Teamsters Local 444, 358 So.2d 1374, 4 FPER  4199 (Fla. 1st DCA 1978), rev'g 3 FPER 56 (1977), cert. denied, 366 So.2d 885 (Fla. 1979).

The chief executive officer of a public employer is to consult with and attempt to represent the views of the legislative body throughout the course of a collective bargaining process; however, authority of chief executive officer to represent public employer during negotiations is not dependent upon a grant of authority from the legislative body.

Discussions and consultations of the chief executive officer of a public employer with the legislative body relative to collective bargaining are exempt from open meetings law.

PERC's conclusion, that rejection of Special Master's decision relating to collective bargaining agreement between City and union was ineffective because there was nothing in the record to show that the City Commission had authorized City Manager to reject decision, was unfounded.

Provisions of statute governing final legislative action by public employer on collective bargaining agreement are applicable only after Special Master's decision has been rejected by one of the parties. Written notice by a City Manager to union that previous contract offer based on Special Master's decision, which was approved by City Commission, was being rejected was a valid exercise of power and, since the letter was received before union ratified offer, City Manager's failure to sign such agreement after it was subsequently ratified by union did not constitute an unfair labor practice.

50. City of Pensacola v. PERC, 358 So.2d 589, 4 FPER  4200 (Fla. 1st DCA 1978), denying review of In re City of Lakeland, City of Pensacola, Town of Palm Beach and City of Delray Beach, 3 FPER 209 (1977), cert. denied, 364 So.2d 882, 5 FPER  10026 (Fla. 1978).

PERC had authority to order City to amend its local option ordinance to bring its provisions and procedures into substantial compliance with 1977 amendments to Part II of Chapter 447, Florida Statutes. The order did not perform rulemaking functions in violation of Section 120.54, Florida Statutes, but was subject to the requirements of Section 120.57(2), Florida Statutes, applicable to an agency determining the substantial interests of a party in proceedings not involving a disputed issue of material fact.

51. City of Jacksonville Beach v. PERC and IBEW. Local 2358, 359 So.2d 578 (Fla. 1st DCA 1978), cert. denied, 374 So.2d 98 (Fla. 1979).

Rule of appellate procedure providing that on appeals by public bodies or public officers, the timely filing of notice shall operate as an automatic stay pending review takes precedence over provisions of the APA and PERA which state, in effect, that the filing of a petition for judicial review of final agency action does not, in itself, operate as a stay of the agency decision or order.

52. City of Umatilla v. West Central Florida PBA, 360 So.2d 1105, 4 FPER  4247 (Fla. 2d DCA 1978), rev'g 4 FPER  4037 (1978), cert. denied, 376 So.2d 393 (Fla. 1979).

Where City mailed to PERC its objections to election for bargaining agents on fourth working day after receiving results of such election, and Commission received such objections six working days after furnishing City with results, Commission abused its discretion in dismissing City's objections as untimely filed pursuant to rule requiring party to file objections within five working days after receiving results of election, in view of fact that City mailed objections at such time as they should have reached Commission in timely fashion and in view of undisputed evidence that City did not know until the third day of the five-day period that it had any basis for objection.

53. City of Panama City v. PERC and Northwest Florida PBA, 363 So.2d 135, 4 FPER  4302 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 69 (Fla. 1979).

Authorization cards are not subject to free access provisions of Public Records Act, and an employer, employee or employee organization is not allowed to inspect the cards unless one of statutory grounds for such inspection is alleged in good faith.

In representation proceedings, final agency action is the certification of employee organization as exclusive bargaining representative of employees in the appropriate unit.

PERC's order certifying the PBA as the exclusive bargaining agent was affirmed on appeal even though the Court found PERC violated Section 120.59(1), Florida Statutes, by certifying unit after ninety day time limit. The Court reasoned that the Violation did not impair the fairness of the proceedings or the correctness of PERC's action. PERC did not err by failing to determine status of employees listed in City's application for determination of managerial or confidential employees.

54. School Board of Marion County v. District Council 66, IBPAT and PERC, No. 11-405 (Fla. 1st DCA 1978) (unpublished order), denying review of No. RC-754-2238 (Fla. PERC Dec. 27, 1977) (certification 374), cert. denied, 372 So.2d 471 (Fla. 1979).

Court denied petition for review of PERC Order, certification number 374, issued December 27, 1977, in District Council #66, IBPAT and School Board of Marion County, No. RC-754-2238.

55. Duval County School Board v. PERC and Duval Teachers United, 363 So.2d 30, 5 FPER  10027 (Fla. 1st DCA 1978), aff'g in part and rev'g in part 3 FPER 170 (1977).

Statute making act of participating in a strike an unfair labor practice was not violated by teachers' union because of voting of a "no contract-no work" policy and formation of "strike teams" when no withholding of services by employees occurred.

The Court noted the subsequent 1977 expansion by the Legislature of the definition of "strike" to include " ... any overt preparation, including, but not limited to, the establishment of strike funds with regard to the above-listed activities."

Teachers' union's distribution of flyers, posters, and leaflets urging superintendent's removal and calling for public expression of no confidence in him did not constitute an unfair labor practice. Since distribution of literature in question was an activity protected by first amendment and applicable statute.

Threats of violence are not an essential ingredient of statute making it an unfair labor practice for a public employee organization to interfere with, restrain, or coerce managerial employees from their performance of job duties or other activities undertaken in interest of public employer.

Because picketing is not pure speech expressing "arguments or opinions," picketing is not free of restraint imposed by Section 447.501(1), Florida Statutes. Other picketing for impermissible reasons, such as picketing with purpose or effect of interfering with, restraining, or coercing managerial employees from their performance of job duties is not protected.

Where the School Board alleged that the teacher's union had committed an unfair labor practice because it had allegedly interfered with a managerial employee, the school superintendent, in the performance of his duties by picketing superintendent's private residence, this issue remanded to PERC to determine whether peaceful picketing of superintendent's residence was, under circumstances, unlawful interference, restraint, or coercion.

56. School Board of Palm Beach County v. PERC, 374 So.2d 527, 4 FPER  4321 (Fla. 1st DCA 1978), rev'g Palm Beach County School Board and Palm Beach Association of Educational Secretaries and Office Personnel, 3 FPER 267 (1977), cert. denied, 380 So.2d 427, 6 FPER  11050 (Fla. 1980).

The Court reversed a PERC order by holding it unnecessary for the Commission to undertake a case-by-case evaluation of the confidential status of personal secretaries for each and every school principal. The Legislature intended that the enactment of Section 447.203(5), Florida Statutes, would eliminate the necessity for factual determinations as to the confidential status of such employees.

Court held that the personal secretary of a managerial employee such as school principal is, by definition, "one who aides or assists a managerial employee in confidential matters," and is therefore a "confidential employee."

Supreme Court accepted jurisdiction, heard arguments and then decided it was without jurisdiction. The Chief Justice, joined by two others, dissented with an opinion emphasizing conflict between Palm Beach County and Winter Park, Case No. 38, this index.

57. Jess Parrish Memorial Hospital v. PERC and LIUNA, Local 666, 364 So.2d 777, 5 FPER  10029 (Fla. 1st DCA 1978), aff'g in part and rev'g in part FPER 172 (1977).

PERC's final order that the Hospital cease and desist from its unfair labor practices was enforceable, even though, contrary to requirements of applicable statute, requiring order to issue ninety days after recommended order unless waived, where Hospital failed to show unfairness or a material error as a result of delay.

Hospital's contention that PERC did not have statutory authority to prosecute unfair labor practice charges was waived since the Hospital did not present its allegation before the hearing officer but waited until the hearing before PERC.

Hospital administrator's letter to all Hospital employees was not an unfair labor practice but rather was a permissible pre-election comment, since there was no threat of reprisal or promise of benefits if employees refused to comply with administrator's proffered assistance in withdrawing their authorization cards.

Whether communications from an employer to its employees relating to union membership are unfair labor practices depends upon particular circumstances of each case; both employer and employee organization have constitutional right to freedom of expression in making pre-election comments so long as comments do not violate statute which forbids promise of benefits or threat of reprisal. If employer, however, sends letters containing anti-union statements which cumulatively create an atmosphere in which an employee's free choice is rendered impossible, then expressions become overbearing and lose First Amendment protection.

Whether an employer commits an unfair labor practice by involving itself in employee revocation of union authorization cards depends upon degree of employer participation in process; determinative factor is whether idea of revocation is initiated by employees, or whether idea originates with employer.

Employer's action in sending revocation forms to its employees was not an unfair labor practice where some of its employees had inquired as to how to revoke their authorization cards and employer's accompanying letter advised employees that choice on whether to revoke authorization cards was strictly their own.

Under the NLRA an individual can be an agent of the employer without being a supervisor, and acts of employer's agents, though not specifically ratified by employer, are chargeable to it for purposes of finding unfair labor practices.

Fact that the Hospital disclaimed any agency relationship with its supervisory employees by sending all supervisory employees a list of items to avoid during union's authorization drive could not overcome conclusion that supervisory employees were acting on behalf of Hospital when the Hospital allowed them continuously to interview employees and to make threatening statements to them.

Supervisory employees' warnings to other employees that if union were elected, certain employee benefits would be lost and salaries decreased were unfair labor practices, since such statements were coercive.

PERC was properly allowed to amend its final order after petition for review was filed, since the Court had temporarily relinquished jurisdiction to PERC to amend its order upon PERC's motion.

While applicable APA statute does not at present impose any requirement of bad faith or maliciousness as a condition to an award, the Court would be reluctant to impose fees and costs against an agency if, for example, order was reversed only because it had erroneously interpreted a provision of law or agency's action depended upon a finding of fact which was not supported by competent, substantial evidence in record, since, as to those circumstances, there are appropriate statutory sanctions, including setting aside or modifying or remanding agency action, without imposing additional sanctions of fees and costs against agency.

58. City of Panama City v. PERC, 364 So.2d 109, 5 FPER  10028 (Fla. 1st DCA 1978) , rev'g 3 FPER 127 (1977).

The Court reversed a PERC order denying approval of local option ordinance and remanded the matter with directions that the ordinance be approved. The Court found PERC's failure to render its order on City's proposed local option ordinance within ninety days of hearing, in violation of statute, constituted a material error in procedure which impaired the fairness of the proceeding. The Court approved, on the merits, PERC's findings concerning eight deficiencies in a submitted local option and found that, where throughout PERC's order denying approval of local option statutory standard of "substantially equivalent" was used, Commission did not use improper standard of review, despite use of phrase "substantial departure" in relation to two of nine deficiencies found.

Local option ordinance submitted for approval to PERC was deficient in various respects including its registration procedure, its impasse procedure, its strike penalty clause, and its certification clause, but was not deficient in that the local commission created thereunder consisted of only three members.

PERC's order denying approval of City's local option ordinance sufficiently explained Commission's rationale and factors which compelled modification of its prior holdings.

Oral decision of PERC conditionally approving local option ordinance, which was not an unequivocal, unambiguous decision embodied in an official record which would substitute for a written order for purposes of statutory sections governing finality of agency decisions, was not a final order and the Commission was not estopped from later denying res judicata effect to that order.

Statute providing that municipalities may adopt local option ordinances requires approval of ordinance by PERC before it becomes law.

PERC's determination concerning the substantial equivalency of a local option ordinance is subject to judicial review.

Award of attorney's fees to City found to be justified but denied because of Court's discretionary anticipation that PERC would proceed promptly and correctly.

59. Bav County Board of County Commissioners v. PERC and Teamsters Local 992, 365 So.2d 767, 5 FPER  10032 (Fla. 1st DCA 1978), reh'g denied, 5 FPER  10033, rev'g Teamsters Local 991 and Bav County, 4 FPER  4058 (1978), petition for review dismissed, 386 So.2d 633, 6 FPER  11197 (Fla. 1980).

Statute requiring registration of public employee organizations does not require such registration only as condition precedent to requesting recognition by public employer or submitting petition requesting representation election, but, rather, Legislature intended information required of employee organizations under the statute to be available to interested parties during and preceding an election.

The Court disagreed with PERC's holding that the County's motion to dismiss was not a sufficient pleading to invoke the remedy of postponement of election. DCA held that motion brought to PERC's attention Teamsters' dereliction and it was them incumbent upon PERC to take some action to remedy the situation before election was conducted. PERC should have postponed election until Teamsters' union filed annual financial statement. The Court therefore deemed it necessary under circumstances of this case to set aside election.

PERC has an obligation of being fair not only to employees and employee organizations but also to public employer.

Where the County had originally stipulated to appropriateness of bargaining unit and attorney for County stated in oral argument before the Court that objections to appropriateness of the unit would be waived if election were set aside, the County would not be heard, on petition for rehearing, to complain that unit was inappropriate. See also 6 FPER  11065 (1980).

60. Seitz v. Duval County School Board and PERC, 366 So.2d 119, 5 FPER  10389 (Fla. 1st DCA 1979), aff'g in part and rev'g in part 4 FPER  4154 (1978), cert. denied, 375 So.2d 911 (Fla. 1979).

PERC did not err in failing to order reinstatement and back pay to dismissed teacher, where the Court's prior ruling precluded that remedy and established law of case.

Where, in 1976, applicable statute authorized unfair labor practice proceedings "whenever it is charged by an employer or an employee organization ...," Florida Administrative Code Rule, which provided that an employee might also bring an unfair labor practice charge, was invalid because a rule cannot be contrary to, nor enlarge provisions of Florida Statutes. Therefore, dismissed teacher did not have standing to bring an unfair labor practice charge against School Board in 1976. See Case No. 98, this index.

A statute is presumed to be prospective in nature unless Legislature manifests a contrary intention in statute itself.

Teacher's right to union representation at a conference with principal where she reasonably anticipated disciplinary action did not exist in 1976, where applicable statute guaranteeing employee rights did not contain language "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection," which language is necessary in order for right to exist. See Case No. 34, this index for related decision.

61. City of Jacksonville v. Jacksonville Association of Fire Fighters, Local 1834, 365 So.2d 1098, 5 FPER  10391 (Fla. 1st DCA 1979), aff'g Jacksonville Fraternal Order of Fire Officials and Jacksonville Association of Fire Fighters, Local 1834 and City of Jacksonville, 4 FPER  4158 (1978).

Evidence was sufficient to support PERC's determination that captains and lieutenants employed by City's fire department were not "managerial employees" within meaning of statutory definition of term for collective bargaining purposes.

The company officers performed limited supervisory duties which did not constitute a significant role in personnel administration or employee relations.

PERC's order properly allowed a self-determination election to be held by secret ballot among lieutenants and captains of the City's fire departments, the results of which decided whether the officers should be included in a unit with privates, comprise a separate unit, or reject representation in any unit.

62. Duval County School Board v. Supervisor's Association of Jacksonville, 367 So.2d 1128 (Fla. 1st DCA 1979), aff'g, 4 FPER  4161 (1978).

The Court affirmed, without opinion, the Commission order under review.

63. City of Jacksonville Beach v. PERC and IBEW, Local 2358, 371 So.2d 1045, 5 FPER  10110 (Fla. 1st DCA 1979), aff'g 4 FPER  4053 (1978).

The Court affirmed PERC's finding that a letter mailed to eligible voters by the union setting forth wage rates for employees in six other cities under contracts with the same union did not effect the results of the election. Applying City of Punta Gorda v. PERC and District Council, 66 IBPAT, 358 So.2d 81, 4 FPER  4175 (Fla. 1st DCA 1978), an election should be set aside only when there is misrepresentation which involves a substantial departure from the truth, which is made at a time which prevents the other party from making an effective response and which is likely to have a significant impact on the election. The DCA agreed with PERC that neither the letter nor the subsequent investigation revealed misrepresentations of fact.

64. School Board of Orange County v. Palowitch, Orange County Classroom Teachers Association and PERC, 367 So.2d 730, 5 FPER  10392 4th DCA 1979), aff'g 3 FPER 280 (Fla. (1977).

Unilateral action taken by an employer to change length of work year is per se violation of duty to bargain collectively.

Absence of contractual provision did not give School Board right to unilaterally change existing terms and conditions of employment not covered by the existing contract. The obligation to bargain is bilateral.

It is irrelevant whether such unilateral changes are beneficial or detrimental.

School Board's right of ultimate decision-making does not instill the right to unilateral action without bargaining over the effects of implementing that decision on the wages, hours, and terms and conditions of employment of the employees.

The bargaining table is the statutorily mandated forum for accomplishing all changes in the status quo; the sole exception being legislative action pursuant to Section 447.403(4)(d), Florida Statutes.

65. City of Sarasota v. PERC, 368 So.2d 1379 (Fla. 2d DCA 1979), aff'g Sarasota Professional Fire Fighters, Local 2546 and City of Sarasota, 4 FPER  4148 (1978).

The Court affirmed, without opinion, the Commission order under review.

66. Sherry v. United Teachers of Dade, 368 So.2d 445, 5 FPER  10090 (Fla. 3d DCA 1979), cert. denied, 374 So.2d 100 (Fla. 1979).

Public employee, who was not member of union and who declined to pay fee to union to process grievance on her behalf, lacked requisite interest to bring action to challenge constitutionality of statute providing for the negotiation of grievance procedures between public employer and bargaining agent.

67. Board of Regents v. PERC, State of Florida and United Faculty of Florida, 368 So.2d 641, 5 FPER  10111 (Fla. 1st DCA 1979), aff'g 3 FPER 304 (1977), cert. denied, 379 So.2d 202 (Fla. 1979).

The Board of Regents petition for writ of prohibition was dismissed. "Public employee," as defined under statute governing public employee labor organizations, includes graduate assistants.

PERC had discretion to interpret statute proscribing unfair labor practices of public employee labor organizations as prohibiting exploitation of students by their teachers but not prohibiting public employee organization from soliciting employees, who also happen to be students, to support the union's activities on behalf of same employees whose support was solicited.

PERC has a responsibility to define and implement public employees' substantive rights under the statute governing public employee labor relations, and a reviewing Court is forbidden by statute governing judicial review of agency action from substituting its judgment for that of agency on issue of discretion.

68. Mary Ann Blanchette v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1978), aff'g 5 FPER  10339 (1979).

The Court held that the School Board was correct in denying an APA hearing to a teacher whose request for leave of absence was denied. The grievance procedure in the collective bargaining agreement was the proper channel to be utilized.

69. Pinellas County Data Processing Control Board v. PERC, 371 So.2d 603 (Fla. 2d DCA 1979).

The Court denied a petition for review, writ of prohibition, writ of mandamus and/or interlocutory review and request for show cause order filed by the petitioner. Citing City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), the Court stated its denial was without prejudice to petitioner seeking review of an order of PERC denying petitioner's local option application. Relates to Case Nos. Lo-742-0007 and RC-79-013, In re Local Option Application Pinellas County, 5 FPER  10075 (1979).

70. Pinellas County v. PERC, 371 So.2d 602, (Fla. 2d DCA 1979).

The Court denied a petition for review, writ of prohibition, writ of mandamus and/or interlocutory review, and request for show cause order filed by petitioner. Citing City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), the Court stated that its denial was without prejudice to petitioner seeking review of March 22, 1979, order of PERC denying petitioner's local option application. Relates to Case Nos. LO-742-0007 and RC-79-0l0, In re Local Option Application of Pinellas County, 5 FPER  10075 (1979); see also Case No. 93, this index.

71. City of St. Petersburg v. PERC and Teamsters Local 444, 371 So.2d 600 (Fla. 2d DCA 1979).

The Court granted PERC's motion to dismiss the above-styled case. Citing School Board of Sarasota County v. PERC, 333 So.2d 95 (Fla. 2d DCA 1976), the Court stated that its dismissal was without prejudice to petitioner seeking review of certification. Relates to Teamsters Local 444 v. City of St. Petersburg, 5 FPER  10060 (1979).

72. City of Tampa v. PERC, 372 So.2d 475 (Fla. 2d DCA 1979), aff'g City of Tampa and Hillsborough County PBA, 4 FPER  4210 (1978).

The Court affirmed, without opinion, the Commission order under review.

73. School Board of Palm Beach County v. PERC, 371 So.2d 613 (Fla. 4th County, 4 FPER  4052 (1978).

The Court affirmed, without opinion, the Commission order under review.

74. City of St. Petersburg v. PERC and Teamsters Local 444 v. Pinellas County PBA, 373 So.2d 465 (Fla. 2d DCA 1979), denying cert. to 5 FPER  10060 (1979).

The Court denied certiorari review of the PERC order issued in Teamsters Local 444 v. City of St. Petersburg v. Pinellas County PBA, 5 FPER  10060 (1979), an order determining an appropriate unit. See Case No. 71, this index; see also Case No. 91, this index.

75. City of Tampa v. PERC and ATU, Local 1464, 373 So.2d 465 (Fla. 2d DCA 1979), aff'g ATU Local 1464 and City of Tampa and Hillsborough County Employees, Local 167, AFSCME, 4 FPER  4042 (1978).

The Court affirmed, without opinion, the Commission order under review.

76. School Board of Sarasota County v. PERC, 372 So.2d 477 (Fla. 2d DCA 1979), denying review of Sarasota County Teachers Association v. School Board of Sarasota County, 5 FPER  10149 (1979).

77. Okaloosa-Walton Junior College Board of Trustees v. PERC and Okaloosa-Walton Higher Education Association, 372 So.2d 1378 (Fla. 1st DCA 1979), aff'g in part and rev'g in part 3 FPER 153 (1977), cert. denied, 383 So.2d 1200 (Fla. 1980).

PERC action on remand, 6 FPER  11079 (1980).

No restriction may lawfully be placed on the right of one employee to discuss organizational interests with another on the job site during the non-working time of both, unless by reason of some extraordinary circumstances, the restriction is necessary for order and discipline in pursuit of an employer's institutional purposes.

The distribution of organization literature, however, is subject to both the working hours restriction applicable to solicitation and to the further restriction that it not take place where the actual work of public employees is performed.

Where promulgation by college president and faculty council of policy limiting solicitation on campus to a particular time and location occurred more than six months prior to the filing of a ULP charge by union, promulgation of policy could not serve as basis for charge.

Where promulgation of overly-restrictive policy regarding solicitation could not serve as basis for ULP charge, and the Court found no substantial evidence that college administration maintained and enforced policy, and the Court further found that about six months after promulgating policy, college president amended policy, significantly easing its restrictions on solicitation and fully conforming it to Section 447.509(1), Florida Statutes, the Court disapproved PERC's finding that administration unlawfully restricted solicitation.

Under NLRA, in determining permissibility of employer regulation which restricts access to job site by non-employee union organizers, employer's property interests, as distinguished from his employer management interests, are generally held to prevail over employee interests in access by non-employee organizers, when effective alternative means of off-site access are available to union organizers, and when employer has not capriciously excluded non-employee union organizers while admitting non-employee solicitors for other purposes.

The Court found that union president requested from college an administration-called meeting of the entire faculty in a room on campus for a two-hour period during working hours to hear non-employee labor spokesmen speak about positive aspects of collective bargaining. Because requested meeting would be a non-voluntary, administration-sponsored meeting, of all faculty members, during working hours for employee organizational purposes, the Court vacated the portion of the PERC order which determined that college administration wrongfully denied access to employees of union and which required posting of notice.

The Court held that where union advocates were denied postage-free use of college mail distribution system while mail system was open to other organizational messages of interest to academic community, PERC correctly determined that college was guilty of an unfair labor practice and properly could correct discrimination against pro-union access to college administration's facilities, since college had opened those facilities for non-disruptive use on behalf of other causes and organizations not indigenous to the campus.

The College's "institutional membership" in certain non-indigenous organizations did not qualify such organizations for favored treatment as against union causes.

When access is denied to pro-union messages only because college administration disapproves of the message, interference with PERA-secured organization rights is established.

Except when it may be demonstrated that a PERC-authored policy of expanding the use of college facilities is necessary to remedy discriminatory deprivations having present effect on employees' bargaining rights, PERC is not empowered to preempt employer's power to make facilities uniformly inaccessible to all non-indigenous causes and organizations; and PERC may not require an access remedy for "all organizations and/or individuals desiring to solicit and/or distribute literature."

The Court affirmed PERC's refusal to order another election based on the alleged unfair labor practices. It approved only the unfair labor practice findings in respect to the discriminatory denial of postage-free access to mail room facilities and found no other procedural error by PERC requiring appellate remedies.

78. PERC. Wood. FEA/United and DeSoto County Teachers Association v. District School Board of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979), rev'g unpublished declaratory judgment issued by Fla. 12th Cir. Ct., April 21, 1978, and altered June 27, 1978.

See DeSoto County Teachers Association v. DeSoto County School Board, 5 FPER  10307 (1979), issued subsequent to District Court of Appeal opinion. The denial of a writ of prohibition without opinion is not res judicata unless the sole possible grounds of the denial was that the Court acted on merits of jurisdictional question, or unless it affirmatively appears that such denial was intended to be on the merits.

The Court's prior denials of PERC's suggestions for writ of prohibition did not foreclose Court from considering jurisdictional issue in the instant appeal.

Circuit courts have jurisdiction to render declaratory judgments determining whether a matter in dispute comes within the scope of arbitration agreement.

Under the PERA, the breach of a collective bargaining agreement is not a per se unfair labor practice.

Where breach of a collective bargaining agreement may also be an unfair labor practice under PERA, circuit courts nevertheless have jurisdiction to provide a remedy for that breach, including jurisdiction to enter a declaratory judgment that a particular activity does not constitute a breach.

Whether breach of a collective bargaining agreement is an unfair labor practice is properly a question for PERC to decide; whether breach of a collective bargaining agreement exists is appropriate question for court to decide.

A collective bargaining agreement must provide a procedure for binding arbitration to settle disputes concerning the discharge of a public employee.

A collective bargaining agreement provision for arbitration of grievances pertaining to discharge of a teacher on continuing contract status did not conflict with statutory appeal procedure provided by Section 231.36(6), Florida Statutes; arbitration provision and statutory provision co-exist as alternative remedies available to discharged teacher.

An agreement that alternative non-judicial review may be pursued in lieu of administrative review, was not prohibited by the rule that judicial review of administrative action generally may not be sought without first pursuing an available avenue of administrative review.

The collective bargaining agreement, which provided that the School Board need not afford a hearing to a teacher on a grievance pertaining to a teacher's discharge nor render any decision on the matter at all as a full Board, conflicted with the statutory provision which gave School Board alone the power and duty to discharge teachers.

A public employer cannot negotiate a collective bargaining agreement in which it relinquishes a statutory duty or in which its employees relinquish statutory rights. An agreement may add to statutory rights and duties, but may not diminish them.

The discharged teacher had a right to elect between statutory appeal procedure and binding arbitration procedure provided in the collective bargaining agreement.

79. Leon County Classroom Teachers Association v. School Board of Leon County, 363 So.2d 353, 4 FPER  4312 (Fla. 1st DCA 1978).

The Court reversed two circuit court restraining orders and remanded with directions to dismiss the complaint. The Court said that where there is an agreement to arbitrate an order to arbitrate should not be denied, unless there is a positive assurance that the arbitration clause is not susceptible to interpretations covering the dispute or unless no lawful remedy can conceivably be awarded by the arbitrator.

80. Local 2135. IAFF v. City of Ocala, 371 So.2d 583 (Fla. 1st DCA 1979).

The Court affirmed a circuit court order dismissing a union application for arbitration.

Disputes existing between city and union, in the course of which the city charged that the union had failed to bargain in good faith by refusing to discuss the city's proposals and in the course of which the union president declared to PERC that parties were at impasse and requested PERC to appoint a special master, were arguably covered by the statute, and jurisdiction over dispute was accordingly preempted in favor of the Commission, and the union's petition for order to compel arbitration under arbitration statute was properly dismissed.

81. Brevard Federation of Teachers. Local 2098 v. School Board of Brevard County, 372 So.2d 169 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1110 (Fla. 1980).

The District Court of Appeal reversed a circuit court order setting aside an arbitrator's decision. Arbitration of construction of provision of agreement between School Board and teachers' union defining a teacher's normal work week was not beyond scope of collective bargaining agreement and arbitrator's authority.

The School Board contended that it could not be held responsible for compensation where there was no provision in their budget. The answer to such problems rests with the Legislature rather than the courts.

82. School Board of Indian River County v. Indian River County Education Association. Local 3617, 373 So.2d 412 (Fla. 4th DCA 1979), aff'g 4 FPER  4262 (1978).

Citing the School Board of Orange County v. Palowitch, 367 So.2d 730 (Fla. 4th DCA 1979), (Case No. 64, this index), the Court found the School Board unilaterally altered the number of periods into which the school day was divided. The employer was required to bargain in good faith on changes in wages, hours, terms and conditions of employment, and the unilateral changes fell within those categories.

83. City of Tampa v. PERC and ATU, Local 1464, 373 So.2d 465 (Fla. 2d DCA 1979), aff'g ATU, Local 1464 V. City of Tampa v. Hillsborough County Employees Local 167, AFSCME No. 8H-RC-763-0135 (Fla. PERC Aug. 2, 1978) (certification 421).

The Court affirmed, without opinion, the Commission order under review.

84. LIUNA, Local 1240 v. PERC, 375 So.2d 915 (Fla. 2d DCA 1979), denying review of LIUNA, Local 1240 v. Collier County Board of County Commissioners, 5 FPER  10287 (1979).

The Court denied a motion for emergency relief and petition for review of a non-final administrative order.

85. United Faculty of Florida, Local 1880 v. Board of Regents, 365 SO.2d 1073, 5 FPER  10390 (Fla. 1st DCA 1979).

The Court held that the Board of Regents did not depart from essential requirement of law where the Legislature provided insufficient funds to implement the salary portions of a collective bargaining agreement and the Board of Regents refused to transfer funds from other accounts.

86. City of Bartow v. PERC and Teamsters Local 444, 382 So.2d 311 (Fla. 2d DCA 1979), Vacating 4 FPER  4367 (1978).

The Court reversed the finding that an employee's termination was connected to union activities. Administrative findings must be based on competent substantial evidence and it is inappropriate for the Court to resolve conflicts in testimony. The Court must examine the proceedings in light most favorable to the administrative findings. In this case the Court found there was not competent substantial evidence to sustain the findings.

Where good cause for a discharge is shown, the mere fact that anti-union animus existed on the part of the employer does not, without more, make the discharge unlawful. Svncro Corp. v. NLRB, 597 F.2d 922 at n.7 (5th Cir. 1979).

Civil service board action was based on whether the employee was insubordinate. The issue before PERC was an unfair labor practice. Estoppel by judgment only bars matters actually litigated and determined in an initial action. PERC has jurisdiction over the unfair labor practice question.

87. Brevard Community College Board of Trustees v. PERC and Brevard Community College Federation of Teachers, Local 1847, 376 So.2d 16 (Fla. 5th DCA 1979), cert. denied, 388 So.2d 1110 (Fla. 1980).

The Court consolidated petitions for review of PERC Orders in: College Federation of Teachers and Brevard Community College 2 FPER 87 (1976); Brevard Community College Federation of Teachers, Local 1847 and Brevard Community College, 2 FPER 142 (1976); Brevard Community College Board of Trustees, 3 FPER 229 (1977), stayed, (Fla. 4th DCA Dec. 29, 1977) (unpublished order); Brevard Community College Federation of Teachers, Local 1847, 3 FPER 252 (1977); and Brevard Community College Federation of Teachers v. Brevard Community College Board of Trustees, 3 FPER 253 (1977).

The College stipulated to a unit in a consent election agreement and failed to raise the issue of appropriateness in the objections to the election. The Court adopted Bav County Board of County Commissioners v. PERC, 365 So.2d 767 (Fla. 1st DCA 1979), (Case No. 59, this index), and dismissed that issue.

The College failed to identify disputed issues of material fact. Therefore, the Court found that the College was not entitled to formal proceedings per Section 120.57(1), Florida Statutes and adopted City of Punta Gorda v. PERC, 358 So.2d 81 (Fla. 1st DCA 1978). See Case No. 48, this index.

The College failed to demonstrate PERC abused its discretion in dismissing objections to election and certifying BCCFT as the bargaining agent. The Court recognized the discretion that was incumbent in an expert tribunal in particular areas of special competence and expertise.

PERC Chairman's misconstruction of union letter was declared harmless error in view of the election turnout: of 225 qualified voters 223 voted. Additionally, the record failed to demonstrate any coercion of employees.

In the absence of a timely challenge by the College to Rule 8H-4.02 before the Commission, the Court declined to express an opinion and affirmed PERC, citing Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1978). See Case No. 42, this index.

The Court having determined the validity of the certification disagreed with the contention of the College that it had no obligation to bargain. Moreover, the proper procedure was to seek review of PERC's certification and simultaneously seek stays from PERC or the Court, School Board of Pinellas County v. PERC and Pinellas County Custodial Union 1221, IBFO, 354 So.2d 909 (Fla. 2d DCA 1978). See Case No. 43, this index.

Court held that PERC Order granting access for BCCFT's use of Intercom and bulletin boards was too broad, citing Okaloosa-Walton Jr. College v. PERC, 372 So.2d 1378 (Fla. 1st DCA 1979). See Case No. 77, this index. PERC should have granted BCCFT same limited access as allowed other organizations, in the same manner and to the same extent.

88. City of Winter Haven v. PERC and Teamsters Local 444, 379 So.2d 212 (Fla. 1st DCA 1979), aff'g 5 FPER  10089 (1979).

The Court affirmed, without opinion, the Commission order under review.

89. Escambia County Sheriff's Department v. Florida PBA, Inc., 376 So.2d 435, 6 FPER  11265 (Fla. 1st DCA 1979), aff'g in part and rev'g in part, 5 FPER  10007 (1978), reconsideration denied, 5 FPER  10039 (1979), cert. denied, 389 So.2d 1109, 6 FPER  11286 (Fla. 1980).

The special act for Escambia County did not violate Art. III,  ll(a)(l), of the Florida Constitution. The Legislature transformed deputy sheriffs into employees for purposes of the act and gave them the right to engage in collective bargaining.

Administrative process can not resolve constitutional attack; even though it was not raised below the constitutional attack was not barred.

The Court affirmed PERC's finding that County committed ULP by refusing to bargain in good faith. Since the ULP was a mere technical one, the Court stated that the County should proceed to negotiate in good faith but need not post notices PERC required.

The Court reversed an assessment of penalties as the County was justified in its position of relying upon Murphy v. Mack, 358 So.2d 822 (Fla. 1978). See Case No. 45, this index.

90. Metropolitan Dade County v. Dade County Employees Local 1363, AFSCME and PERC, 376 So.2d 1206, 6 FPER  11020 (Fla. 1st DCA 1979), rev'g In re Dade County Employees Local 1363, AFSCME, 4 FPER  4121 (1978).

The Court reversed PERC's declaratory statement holding that a full-time employee of the union may represent a union member in a civil service appeal of disciplinary action under Section 2-47, Code of Metropolitan Dade County.

The contract requiring an ordinance amendment to provide employee appeals to a hearing examiner, as part of the civil service disciplinary scheme, did not transform the civil service proceeding into "a grievance procedure" to be used for the settlement of disputes between an employer and am employee, or group of employees, involving the interpretation or application of a collective bargaining agreement.

The statutory right of a union to represent an employee is limited by Section 447.609, Florida Statutes, to "any proceeding authorized in this part," meaning Part II of Chapter 447. Section 447.401 explicitly recognizes that civil service appeals are significantly different from grievance procedures and that the remedies are mutually exclusive.

Chapter 447 does not afford to public employees any procedural rights in respect to appeals before hearing examiners under civil service Ordinance 2-47. Any employee right to union assistance in a civil service appeal is not derived from Chapter 447. PERC, therefore, had no authority to render a declaratory statement except "as to the applicability of" Chapter 447. The Court found it prudent to avoid unlawful practice of law issue as it was not raised as such and they deferred to Supreme Court's exclusive jurisdiction.

91. City of St. Petersburg v. PERC, 375 So.2d 914 (Fla. 2d DCA 1979), dismissing cert. Teamsters Local 444 v. City of St. Petersburg, 5 FPER  10182 (1979).

The Court upheld, without opinion, PERC's order directing a new election. See Case No. 74, this index.

92. City of Panama City v. PERC, 378 So.2d 66 (Fla. 1st DCA 1979), aff'g in part and rev'g in part, 5 FPER  10107 (1979).

Commission's order directing City to amend its local option ordinance was reversed by the Court to the extent that it conflicted with the Court's prior decision in City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978) (Case No. 58, this index), and affirmed to the extent that it required the City to amend its ordinance to provide provisions and procedures substantially equivalent to those set forth in Chapter 77-343, Florida Statutes.

93. Pinellas County v. PERC, 379 So.2d 985, 6 FPER  11039 (Fla. 2d DCA 1980), rev'g 5 FPER  10075 (1979).

Court reversed Commission order denying approval of Pinellas County's local option ordinance, holding that the Commission's failure to comply with the "90-day rule" set forth in Section 120.59, Florida Statutes, impaired the fairness of the Commission proceedings. Pinellas County Employees Association Local 2721, AFSCME v. Pinellas County Commission, Pinellas County, No. RC-79-010 which was stayed pending the above appeal was dismissed as moot, 386 So.2d 648 (Fla. 2d DCA 1980). See In re Adoption of Rules by Pinellas County Local Commission, 6 FPER  11182 at n. 2 (1980).

94. Martin County Education Association, Local 3615 v. School Board of Martin County, 380 So.2d 582 (Fla. 1st DCA 1980), aff'g 5 FPER  10199 (1979).

The Court affirmed, without opinion, a Commission order dismissing a ULP charge by the union alleging that employer-School Board committed a ULP within meaning of Section 447.501(1) (a) and (c), Florida Statutes, by refusing to bargain salary supplements for those members of a union-represented instructional unit who performed coaching duties. Contra School Board of Levy County v. Levy County Education Association. See Case No. 231, this index.

95. City of Jacksonville Beach v. PERC and Jacksonville Beach Fire Fighters Association, Local 2622, 381 So.2d 283, 6 FPER  11057 (Fla. 1st DCA 1980), aff'g 5 FPER  10059 (1979).

The Court affirmed a Commission order which included fire lieutenants in a bargaining unit contrary to an agreement between the employer and union, where evidence supported inclusion. The Court held that an issue not made a point on appeal is waived and will not be considered by the Court for the first time on appeal. Judge Booth concurred in part and dissented in part with opinion.

96. City of St. Petersburg v. PERC, Teamsters Local 444. and Pinellas County PBA, 382 So.2d 899, 6 FPER  11105 (Fla. 2d DCA 1980), aff'g 5 FPER 10161 (1979).

The Court affirmed a Commission order directing an employer to pay election costs where the employer's refusal to provide an election list required PERC to cancel a mail election and run an on-site election.

97. Bay County School Board v. PERC and Association of Bay County Educators, 382 So.2d 747 (Fla. 1st DCA 1980), aff'g 5 FPER  10314 (1979).

The Court affirmed a Commission order finding the employer guilty of a ULP for refusing to provide budget work sheets to the union upon its request. In so holding, the Court agreed with the Commission that, inasmuch as these work sheets were prepared to assist the employer in developing its budget, they were not exempted from public disclosure under Chapter 119, Florida Statutes, by operation of Section 447.605(3), Florida Statutes (1977).

98. Juno Fire Control District #3 v. Dolan, No. 78-653 (Fla. 4th DCA 1980) (unpublished order), aff'g 4 FPER  4109 (1978).

The Court affirmed a Commission order finding that firing William F. Dolan following the filing of grievance constituted a ULP within the meaning of Section 447.501(1)(a), (b) and (d), Florida Statutes.

The ULP, as in Seitz, (Case No. 60, this index), was filed by an individual but the Court did not reverse as it had done in Seitz.

The decision to fire Dolan was motivated by non-permissible reasons. The Fire District did not prove by a preponderance of the evidence that there were other factors which would have caused the decision to terminate him.

99. City of Ft. Lauderdale v. PERC, Broward County Local 532, AFSCME and Fort Lauderdale City Employees Benevolent Association, Inc., 381 So.2d 257 (Fla. 4th DCA 1980), aff'g 4 FPER  4027 (1977), 4 FPER  4220 (1978) and 4 FPER  4266 (1978).

The Court affirmed, without opinion, PERC orders on election objections where PERC abandoned the Hollywood Ceramics doctrine on campaign statements, holding that Sections 447.501(1) and (2), Florida Statutes, and the proviso in Section 447.501(3), provide the touchstone for evaluating campaign statements. PERC was not required to conduct an evidentiary hearing on election objections when neither party requested it even though disputed facts were later discovered. PERC is not responsible for policing truth of falsity of financial statements in registration procedure. PERC's statutory mandate is to conduct secret ballot election, but decisions as to mail or on-site election is a matter for Commission decision.

100. The Florida Bar v. Moses, 380 So.2d 412 (Fla. 1980).

The Supreme Court held that representation of a party in a contested PERC unfair labor practice proceeding constituted the practice of law. The APA authorizes representation before PERC by non-lawyers. But PERC exercised its delegated authority improperly by permitting lay representation without setting standards which assure that such representatives are "qualified." Therefore, Moses' appearance in School Board of Escambia County v. PERC, 350 So.2d 819 (Fla. 1st DCA 1977), was the unauthorized practice of law.

101. City of Winter Park v. PERC and LIUNA, Local 517, 383 So.2d 653, 6 FPER  11096 (Fla. 5th DCA 1980) , rev'g 4 FPER  4278 (1978), appeal dismissed, 386 So.2d 638 (Fla. 1980).

The Court reversed a PERC order finding an ULP, and held that the City's legislative action resolving impasse applied to all items at impasse including a two year duration clause. Thus, the City was not required to reenter negotiations after union failed to ratify the tentative agreement including the legislative action.

The Court rejected PERC's distinction between substantive terms and conditions of employment and others such as preambles and duration clauses, where PERC considered the latter type to be unaffected by legislative action. Subsequent to this case, the Legislature enacted Chapter 80-567, Laws of Florida, amending Section 447.403, Florida Statutes.

102. School Board of Lee County v. PERC and IBPAT, District Council 66 and South Florida AFSCME, 382 So.2d 1260 (Fla. 1st DCA 1980), rev'g 4 FPER  4151 (1978).

The Court reversed a PERC order regarding confidential employees to the extent it failed to designate personal secretaries to school principals since these were per se confidential under School Board of Palm Beach County, (Case No. 56, this index), but declined to extend this rule to include all secretaries to school managers. As to these, PERC is responsible to make factual determinations. The Court remanded the case to clarify the term "blue collar," noting PERC can alter terminology in unit description since this is not a case in which the employer voluntarily granted recognition.

103. Butterworth v. PERC, 382 So.2d 859, 6 FPER  11102 (Fla. 4th DCA 1980), denying review of Federation of Public Employees v. Sheriff of Broward County, 5 FPER  10385 (1979).

The Court declined to review a non-final PERC order striking five affirmative defenses in a ULP case since the petitioner had not demonstrated that a review of the final order would not afford an adequate remedy.

104. School Board of Sarasota County v. PERC, 382 So.2d 1361, 6 FPER  11118 (Fla. 2d DCA 1980), aff'g in part and rev'g in part 5 FPER  10149 (1979).

The Court refused to overturn an election where the School Board contended that the delay in issuance of the PERC order required an election in the last hectic week of school. The Court cautioned PERC on delay in orders and reversed PERC's determination that the Coordinator of Evaluation Services was not a managerial employee.

105. North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556, 6 FPER 11139 (Fla. 1st DCA 1980), rev'g Laborers' International Union, Local 666 v. Jess Parrish Memorial Hospital, 4 FPER  4044 (1978).

The Court set aside an election which the union won and reversed PERC's certification order (Cert. #381). The union was not in compliance with registration requirements of the statute and PERC rule, citing Bav County. See Case No. 59, this index. The public interest requires unions to comply with registration requirements at the time petitions are filed and to maintain a current registration throughout proceedings for recognition. The Court distinguished LIUNA, Local 666 v. PERC, (Case No. 20, this index), where a non-registered union was intervenor. The Court disagreed with PERC's rejection of the Hospital's election objection against the union for filing a $3.5 million law suit against the Hospital seven days before the election and telling employees that proceeds of the suit would be divided among them. Court discussed the NLRB rules in Hollywood Ceramics, Shopping Kart, Santee River Wool, Westlock, and General Knit, and distinguished City of Punta Gorda v. PERC, (Case No. 48, this index), holding that PERC must consider the nature of the misrepresentation and not just the timing thereof.

In a special concurrence to an order denying rehearing, Judge R. Smith pointed out the inconsistency in the majority holding in this case and LIUNA, Local 666 v. PERC, (Case No. 20, this index), as to whether PERC should dismiss a petition when registration has lapsed or allow the union time to comply with registration requirements. The same union and same problem were involved in both cases. See also Case No. 123, this index.

106. City of Orlando v. IAFF, Local 1365, 384 So.2d 941, 6 FPER  11173 (Fla. 5th DCA 1980), aff'g 4 FPER  4214 (1978).

The Court affirmed a PERC finding of a ULP where the City failed to resolve an impasse by legislative action with finality but instead first attempted further negotiations and then conditioned its legislative action upon union acceptance on a "take it or leave it" basis. The union by participating in post-special master bargaining initially, waived performance by the City of its statutory duty to resolve an impasse, but the waiver ended when the union withdrew from negotiations and demanded legislative action. The City's failure to resolve the impasse with finality was not excused by the union's subsequent ratification of contract. Judge Moore, dissenting, concluded that agreement to a contract was a waiver.

107. City of St. Petersburg v. PERC and St. Petersburg Association of Fire Fighters, Local 747, 388 So.2d 1124, 6 FPER  11195 (Fla. 2d DCA 1980), aff'g 5 FPER  10381 (1979).

The Court affirmed, without opinion, PERC's order in which it concluded that vacation leave was within the meaning of wages, hours, terms and conditions of employment, and that the City committed a per se violation when it unilaterally changed its policy so that such leave could no longer be taken in one-hour increments.

108. IBPAT, Local 1010 v. Florida Fifth District Court of Appeal, PERC and Marv Winn Anderson, 389 So.2d 1111, 6 FPER 11196 (Fla. 1980), writ of prohibition denied.

PERC had ordered a new ratification vote where the union had not provided adequate notice to bargaining unit members who were not union members. The union sought to overturn the Fifth DCA's denial of stay pending appeal. See IBPAT, Local 1010 v. Anderson, 401 So.2d 824, 7 FPER  12380 (Fla. 5th DCA 1981) (Case No. 131, this index).

109. Manatee County v. PERC and Manatee County Municipal Employees, Local 1584, 387 So.2d 446, 6 FPER  11243 (Fla. 1st DCA 1980), rev'g 4 FPER  4227 (1978).

PERC order (Cert. #455, April 9, 1979) certifying Local 1584 was reversed and remanded. Contrary to the parties' stipulation to exclude CETA employees, PERC adopted hearing officer's recommendation for their inclusion, denying County's request for an evidentiary hearing on that issue.

The Court found PERC's view that stipulations by the parties are no more than "statements of coincidence of opinion" was not consistent with previous pronouncements or was misapplied in this case. It is a fundamental rule of administrative law that agencies are required to make a determination after a hearing as a quasi-judicial function and cannot act solely on their own information.

Section 120.57(3), Florida Statutes, covers stipulations. Administrative agencies must consider due process when dealing with stipulations or agreements of adversarial parties. Evidence was insufficient to justify PERC's overriding of the parties' stipulation. The Court disapproves of any rule of procedure which would permit the agency to pick and choose which stipulations it desires to honor in an after-the-fact fashion. The agency should consider stating in advance of hearing its position on stipulations or perhaps adopting a rule.

110. City of Ocoee v. Central Florida Professional Fire Fighters Association, Local 2057 and PERC, 389 So.2d 296 (Fla. 5th DCA 1980), aff'g 4 FPER  4339 (1978) and rev'g 5 FPER  10048 (1979).

The Court upheld PERC's finding that reserve fire fighters should be excluded from an appropriate unit of full-time fire fighters. The Court reversed PERC's denial of the City's election objections. The Union had not complied with the registration requirements in Section 447.305, Florida Statutes (1977), at the time it submitted its petition. Amendments to the statute in 1979 were prospective in application. The Court denied the City's motion for attorney's fees and court costs holding PERC's error was due to an erroneous interpretation of a statute which was understandable because of a lack of court precedent.

111. FOP, Miami Lodge 20 v. City of Miami, 384 So.2d 726 (Fla. 3d DCA 1980).

Unions' requested that the circuit court declare that Sections 447.301(2) and 447.309(5), Florida Statutes (1977) (the retirement exclusions) unconstitutional. The lower court decided it lacked jurisdiction and that unions were only entitled to relief by appeal of a declaratory statement on the issue which was pending before PERC. See Case No. 120, this index. The Court reversed the circuit court's dismissal of the case as improper; it should have required the City to file an answer, and raise the pending PERC case as an affirmative defense of res judicata.

112. LIUNA, Local 517 v. Greater Orlando Aviation Authority, 385 So.2d 716 (Fla. 5th DCA 1980).

The Court reversed and remanded where the circuit court had dismissed the union's suit for a declaration of the Greater Orlando Aviation Authority's (GOAA's) authority to bargain collectively with the PERC certified bargaining agent, in view of the provision creating GOAA which limited compensation of Authority's employees to that paid by City to similar employees. The Court held that declaration of authority to bargain was a matter that was properly before the circuit court, particularly because the lawsuit questioned the constitutionality of the statute that created GOAA.

113. LIUNA, Local 1240 v. PERC, No. SS-427, 6 FPER  11266 (Fla. 1st DCA Sept. 12, 1980), aff'g LIUNA, Local 1240 v. Collier County Board of County Commissioners, 5 FPER  10287 (1979).

The Court affirmed a PERC order which canceled an evidentiary hearing when the petitioner failed to file a pre-hearing statement. The Court's dismissal of the interlocutory appeal was without prejudice to raising the issue on appeal of PERC's final order.

114. Duval Teachers United v. Duval County School Board, 390 So.2d 431 (Fla. 1st DCA 1980).

The Court affirmed a circuit court's dismissal of suit where the union sought declaratory relief that a collective bargaining agreement provided a certain hourly rate of pay for teachers who taught in an after hours education program although the agreement was silent on the subject. The Court premised its dismissal upon a finding that no contractual provision could reasonably be construed as controlling payments made to after hours teachers.

115. School Board of Martin County v. Martin County Education Association Local 3615, 390 So.2d 830, 6 FPER  11242 (Fla. 1st DCA 1980), aff'g 5 FPER  10302 (1979).

The Court affirmed, without opinion, the Commission order under review. PERC found a ULP and awarded attorney's fees where School Board failed to bargain over impact and unilaterally implemented change from 6-period school day.

116. School Board of Hamilton County v. Grace, 390 So.2d 830, 7 FPER  12000 (Fla. 1st DCA 1980), aff'g 6 FPER  11010 (1979).

PERC's order finding a ULP in the unilateral change of a school calendar and the direct dealing with bargaining unit members, was affirmed without opinion.

117. Town of Orange Park v. PERC and Orange Park Association of Fire Fighters, Local 2668 391 So.2d 693, 6 FPER  11302 (Fla. 1st DCA 1980), aff'g 6 FPER  11006 (1980).

The Court affirmed a PERC order which dismissed election objections and held that two fire captains and a fire captain/assistant chief were not managerial employees. Judge Booth dissenting, thought the PERC decision nullified the Town's plan to decentralize management to avoid problems that arose under the former fire chief.

118. City of Ocala v. Marion County PBA, 392 So.2d 26, 7 FPER  12038 (Fla. 1st DCA 1980), aff'g 5 FPER  10088 (1979).

The Court affirmed a PERC order finding a ULP where the City failed to maintain the status quo by withholding merit wage increases during negotiations and declined to negotiate during the pendency of a decertification petition. While the merit pay increase system had not been incorporated in collective bargaining agreements, it had become an established term and condition of employment which the employees could reasonably expect to continue. Unilateral change by the City was a per se violation. The Court recognized PERC's expertise and special competence in the area of labor problems and statutory interpretation of Chapter 447, Part II, Florida Statutes. The City was not prejudiced because two PERC Commissioners acted as hearing officers in separate police and fire hearings, when the cases were consolidated at the Commission level.

119. City of Miami v. PERC, 392 So.2d 979, 7 FPER  12116 (Fla. 1st DCA 1981), rev'g 6 FPER  11026 (1980).

PERC's order was reversed and remanded because denial of a confidential designation for the City's Sanitation Inspector did not sufficiently explicate the basis or significance of Public Records Act exceptions to meet APA standards.

120. City of Tallahassee v. PERC, 393 So.2d 1147, 7 FPER  12114 (Fla. 1st DCA 1981), rev'g 5 FPER  10244 (1979), aff'd, 410 So.2d 487 (Fla. 1981).

In considering the City's appeal of PERC's declaratory statement in 5 FPER  10244, the Court held portions of Sections 447.301(2) and 447.309(5), Florida Statutes, which excluded any provisions of the Florida Statutes on appropriate ordinances relating to retirement from mandatory collective bargaining to be unconstitutional. The Court noted that private sector employees have the right to bargain collectively concerning retirement and that the Florida Supreme Court in Dade County Classroom Teachers Association v. Ryan, (Case No. 1, this index), held that, except for right to strike, Florida public employees had the same rights under Article I, Section 6 of the Florida Constitution as private employees. See Case No. 148, this index.

121. Duval County School Board V. Duval Teachers United, Local 3326, 393 So.2d 1151 (Fla. 1st DCA 1981), aff'g In re Duval Teachers United, Local 3326, 5 FPER  10353 (1979).

The Court affirmed PERC's declaratory statement that Section 447.401, Florida Statutes, requires that the certified bargaining agent be permitted to file and process grievances in his own name. The Court, in its affirmance, expressly did not rule on whether an employee had the right to process his or her own grievance, in the event the contract provides that only the union can process grievances. See Heath v. School Board of Orange County, 5 FPER  10074 (1979); see also Leon County CTA v. Leon County School Board, 6 FPER  11001 (1979); City of Maroate v. Federation of public Employees, 7 FPER  12126 (1981).

122. IAFF Local 2135 v. City of Ocala, 394 So.2d 1156, 7 FPER  12115 (Fla. 1st DCA 1981), aff'g 5 FPER  10252 (1979).

The Commission's decision that the City lawfully reprimanded an employee who was the union's chief negotiator for an ex parte communication with a member of the legislative body during impasse was affirmed, without opinion. Such action was not protected activity.

123. Jess Parrish Memorial Hospital v. LIUNA, Local 666, 397 So.2d 989, 7 FPER  12224 (Fla. 1st DCA 1981), aff'g 6 FPER  11007 (1979), cert. denied, 411 So.2d 383, 7 FPER  12449 (Fla. 1981).

The Court affirmed PERC's order holding that the Hospital had unlawfully refused to bargain, upon request, during appeal of the certification order. However, since the Court had earlier set aside the election because the union was not in compliance with registration requirements (See 6 FPER  11139), the case was remanded to PERC to modify sanctions against the Hospital for its ULP violation. Judge Booth, dissenting, thought union certification, under these circumstances, was void ab initio and that the better rule in such situations is an "at your peril" rule used by Federal courts in NLRB cases.

124. City of St. Petersburg v. PERC and IBF&O, Local 1220, 398 So.2d 980, 7 FPER  12298 (Fla. 2d DCA 1981), aff'g 6 FPER  11219 (1980).

The Court affirmed a PERC order which required the City to cease and desist from failing to take a ratification vote on a contract that was agreed to by the negotiating parties. The Court construed the order as not precluding the City's chief executive officer from making recommendations to the City as to the advisability of ratifying a contract which contained an apparent error. PERC's order implementing the Court's decision is at IBF&O, Local 1220 v. City of St. Petersburg, 7 FPER  12269 (1981). See also IBF&O, Local 1220 v. City of St. Petersburg. 7 FPER  12318 (1981).

125. Lee v. City of Winter Haven and PERC, 399 So.2d 140, 7 FPER  12223 (Fla. 2d DCA 1981), denying review of 6 FPER  11034 (1980), cert. denied, 399 So.2d 1144 (Fla. 1981).

The Court affirmed, without opinion, a PERC order in which it dismissed a ULP charge of discriminatory discharge. The employee had been insubordinate in refusing to obey a direct order.

126. City of Crestview v. North Okaloosa County Fire Fighters Association, 399 So.2d 378, 7 FPER  12315 (Fla. 1st DCA 1981), aff'g 6 FPER  11069 (1980).

The Court affirmed a decision in which the Commission concluded that the City had discriminatorily discharged, a fire fighter who was actively involved in organizational efforts on behalf of the North Okaloosa County Fire Fighters Association. The Court remanded the case for consideration of the award of attorney fees, to consider the employer's contention that the fee was waived by the union's failure to file a timely proposal under Rule 380-14.004(3).

127. Pensacola Junior College v. PERC and United Faculty of Florida, Local, 1847, 400 So.2d 59, 7 FPER  12254 (Fla. 1st DCA 1981), rev'g In re Pensacola Junior College, 6 FPER  11159 (1980).

The Court reversed a PERC determination that the College registrar was not a managerial employee and certain College secretaries were not confidential employees. The Court held that record evidence and the parties' stipulations supported such designations. The Court rejected PERC's statutory interpretation that confidential duties must be current rather than prospective. The Court held that Lee County, (Case No. 102, this index), did not restore the three prong test but that the two prong test of Palm Beach County, (Case No. 56, this index), remained undisturbed.

128. School Board of Polk County v. PERC, 399 So.2d 520, 7 FPER  12316 (Fla. 2d DCA 1981), rev'g Polk County Non-Instructional Employees Union, Local 2227 v. School Board of Polk County, 6 FPER  11189 (1980).

Applying NLRB precedent, the Court reversed a PERC ruling that school bus garage employees could be added to an existing non-instructional bargaining unit through unit clarification procedures without an election. The case was remanded with directions to conduct a self-determination election. The PERC order on remand can be found in Polk County Non-Instructional Employees Union, Local 1227 v. School Board of Polk County, 7 FPER  12348 (1981).

129. Palm Beach County Classroom Teachers Association v. School Board of Palm Beach County, 402 So.2d 1383, 7 FPER  12392 (Fla. 4th DCA 1981), aff'g 6 FPER  11283 (1980).

The Court affirmed, without opinion, a PERC order in which PERC held that an increase in school funds by the Legislature did not create a duty to bargain independent of the collective bargaining agreement which contained no reopener clause on salaries.

130. State University System, Board of Regents v. United Faculty of Florida, No. AD-410 (Fla. 1st DCA June 3, 1981) (unpublished order), denying stay of 7 FPER  12200 (1981).

The Board of Regents (BOR) filed a petition for writs of certiorari and mandamus, contesting a non-final or intermediate order in which the Commission directed an election in a faculty bargaining unit at the University of Florida. The BOR then filed an emergency motion seeking to stay the election pending judicial review. The Court denied the motion, citing Sarasota Classroom Teachers Association v. School Board of Sarasota County, 5 FPER  10184 (1979). In this previous decision, the Commission determined that the filing of a petition for review of nonfinal, intermediate agency action does not invoke the automatic stay provided for in Florida Rule of Appellate Procedure 9.310(b)(2).

131. IBPAT, Local 1010 v. Anderson, 401 So.2d 824, 7 FPER  12380 (Fla. 5th DCA 1981), aff'g 6 FPER  11114 (1980), cert. denied, 411 So.2d 382, 8 FPER  13040 (Fla. 1980).

The Court affirmed a decision in which the Commission concluded that the union unlawfully interfered with the statutory rights of bargaining unit members and breached its duty of fair representation by inadequately notifying members of the union of a contract ratification vote. In a lengthy opinion, the court noted the remedial nature of the Public Employees Relations Act, and further noted that where a Florida statute is patterned after a federal law on the same subject, it will take the same construction in Florida courts as its prototype has been given in the federal courts. The Court expressly affirmed the Commission's standard for awarding attorney's fees that a respondent "knew or should have known" that its conduct constituted a violation of law.

132. City of Lake Wales v. PERC, 402 So.2d 1224, 7 FPER  12390 (Fla. 2d DCA 1981), aff'g Teamsters Local 444 v. City of Lake Wales, 6 FPER  11187 (1980).

The Court affirmed the Commission's refusal to designate the employer's shift command sergeants and detective sergeants as managerial or confidential employees. Citing Sections 120.68(7) and (10), Florida Statutes, the Court stated that the Commission's decision was supported by competent substantial evidence and that the Commission correctly applied relevant statutory criteria to the facts.

133. Swick v. PERC and City of Hollywood, No. 81-683 (Fla. 3d DCA April 10, 1981) (unpublished order), denying review of In re City of Hollywood, 7 FPER  12147 (1981).

The Court denied review of a non-final decision in which the Commission referred a case to the Division of Administrative Hearings of the Department of Administration for an evidentiary hearing. The case involved an alleged strike by fire fighters employed by the City.

134. Macready v. PERC and City of Hollywood, No. 81-697 (Fla. 4th DCA June 10, 1981) (unpublished order), denying review of In re City of Hollywood, 7 FPER  12147 (1981).

The Court denied review of a non-final decision in which the Commission referred a case to the Division of Administrative Hearings of the Department of Administration for an evidentiary hearing. The case involved an alleged strike by fire fighters employed by the City.

135. Lampkin-Asam v. Lee County School Board, 404 So.2d 869, 7 FPER , 12391 (Fla. 1st DCA 1981), aff'g 6 FPER  11273 (1980).

The Court affirmed, without opinion, a decision in which the Commission concluded that the School Board lawfully terminated a teacher where the evidence indicated that the dismissal was motivated by the teacher's inability to control students in her classroom, rather than by the teacher's protected activities.

136. Pinellas Career Services Association v. PERC, 403 So.2d 528, 7 FPER  12393 (Fla. 1st DCA 1981), aff'g In re School Board of Pinellas County, 7 FPER  12005 (1980).

The Court affirmed the Commission's designation of secretaries to school principals as confidential employees, citing without discussion the Court's prior decision in School Board of Palm Beach County v. PERC, 374 So.2d 527, 4 FPER  4321 (Fla. 1st DCA 1978). See Case No. 56, this index.

137. Orange County v. Central Florida Professional Fire Fighters Association Local 2057, No. 81-1141, 7 FPER  12464 (Fla. 5th DCA 1981), denying review of 7 FPER  12340 (1981).

Orange County requested review and reversal of the Commission's refusal to stay a representation hearing based upon the employer's claim that it had inadequate time to prepare for the hearing. The County also contended that unit determination was not yet appropriate due to the recent consolidation of special fire fighting districts into a county-wide fire fighting unit. The Court summarily denied the petition for review of intermediate or non-final administrative action.

138. Bradford County School Board v. Bradford Education Association, 407 So.2d 1107 (Fla. 1st DCA 1981), aff'g 6 FPER  11228 (1981).

The Court affirmed, without opinion, a decision in which the Commission concluded that the employer unlawfully refused to bargain by unilaterally changing a teacher planning day to a student class day without bargaining over the impact of the schedule alteration. See Bradford Education Association v. Bradford County School Board, 7 FPER 12468.

139. School Board of DeSoto County v. DeSoto County Teachers Association, No. 81-1779 (Fla. 2d DCA Oct. 2, 1981) (unpublished order), denying review of 7 FPER  12322 (1981).

The Court granted a motion to dismiss the petition for review of a non-final administrative action. The School Board sought pre-election review of the adequacy of the showing of interest filed by the union in support of its representation-certification petition.

140. Duval County School Board v. Duval Teachers United, 407 So.2d 1108 (Fla. 1st DCA 1981), aff'g 7 FPER  12056 (1980).

The Court affirmed, without opinion, a decision in which the Commission concluded that the School Board failed to bargain collectively by unilaterally restricting the incumbent union's access to school facilities for meetings and for personally contacting teachers, in derogation of a clear past practice. The Commission did not award attorney's fees.

141. City of Orlando v. Orlando Professional Fire Fighters, Local 1366, No. 81-1248, 7 FPER  12451 (Fla. 5th DCA 1981), denying review of 7 FPER  12372 (1981).

The City sought pre-election review of the Commission's decision denying managerial designations for fire captains and assistant chiefs. The employer also sought a stay of the representation election. The Court declined to review the Commission's non-final or intermediate administrative order on managerial designations, and also declined to stay the representation election. See Case No. 160, this index.

142. St. Petersburg Junior College Faculty Association v. St. Petersburg Junior College Board of Trustees, 405 So.2d 1009, 7 FPER  12450 (Fla. 1st DCA 1981), aff'g 7 FPER  12096 (1981).

The Court upheld the Commission's reliance upon NLRB precedent which holds that an employer is not required to subsidize its opponent by paying the salary of a union's witnesses in a representation case. The union unsuccessfully asserted that employees testifying on its behalf were unlawfully charged a day of annual leave while employees testifying on the employer's behalf were not similarly charged.

143. Riviera Beach Association of Fire Fighters, Local 1621 v. PERC, 411 So.2d 388, 7 FPER  12452 (Fla. 1st DCA 1981), aff'g 7 FPER  12029 (1981).

The Court affirmed, without opinion, a decision in which the Commission concluded that the union failed to bargain in good faith when it repeatedly failed to meet and confer at reasonable times and intervals with the representative for the employer.

144. City of Clearwater v. Lewis, 404 So.2d 1156, 7 FPER  12448 (Fla. 2d DCA 1981), aff'g 6 FPER  11222 (1980).

The Court deferred to the Commission's policy decision that a public employee is entitled to union representation at a meeting in which the employee is given the option to be fired or to resign. The Commission applied NLRB v. Weingarten Inc., 420 U.S. 251, 95 S.Ct. 959 (1975), holding that since the option given the employee was a choice reasonably leading to significant adverse impact upon his job interests and employment record, such as his right to file a grievance, refusal to allow consultation with his union representative after he had made a request for such representation was unlawful. The Court affirmed the Commission's overruling of the hearing officer's finding of fact on the issue of waiver, noting that the waiver question constitutes the type of "ultimate fact" for which the Commission has special responsibility and greater discretion to overrule a hearing officer.

145. City of Fort Lauderdale v. PERC, No. 81-342, 8 FPER  13006 (1981), dismissing appeal from In re City of Fort Lauderdale, 7 FPER  12062 (1981).

The Court granted a motion to dismiss the appeal as untimely. The Court held that the appeal time ran from the date of the Commission order denying reconsideration of a prior decision, In re City of Fort Lauderdale, 6 FPER  11278 (1980). Citing St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla. 1971), the Court held that the erratum amendment to the order denying reconsideration was immaterial to any rights of the appellant and therefore did not extend the time within which an appeal must be taken.

146. City of Fort Lauderdale v. Broward County Local 532, AFSCME, No. 81-397, 8 FPER  13008 (Fla. 4th DCA 1981), dismissing appeal from 7 FPER  12125 (1981).

The Court granted the Commission's suggestion of mootness and dismissed the appeal. The City contended that the Commission was obligated to conduct a formal hearing to determine whether to suspend or revoke the union's certification due to registration defects. The union's registration lapsed during the pendency of the appeal, thus rendering moot the effect of any registration defects upon the union's right to represent bargaining unit employees.

147. Town of Pembroke Park v. Florida State Lodge. FOP, No. AC-313, 8 FPER  13007 (Fla. 1st DCA 1981), dismissing appeal from 7 FPER  12160 (1981).

The Court granted the Commission's motion to dismiss for lack of prosecution because the Town failed to file its initial brief in a timely fashion. The Court had previously granted enforcement of a part of the order under review and had stayed the effect of another portion of the order under review. The Court denied the FOP's motion for contempt without prejudice to the right to seek relief in circuit court for the Town's continued violation of the Court's prior enforcement order. See Florida State Lodge, FOP v. Town of Pembroke Park, 7 FPER  12252 (1981).

148. City of Tallahassee v. PERC, 410 So.2d 487, 8 FPER  13041 (Fla. 1982), aff'g 393 So.2d 1147, 7 FPER q 12114 (Fla. 1st DCA 1981).

This case originated when the City filed a petition requesting a declaratory statement concerning the City's duty to bargain over a provision in its retirement ordinance. The Commission determined that Sections 447.301(2) and 447.309(5), Florida Statutes, abrogated the City's duty to negotiate over retirement plans governed by state statutes or local ordinances. The Commission determined that such bargaining is permissive, not mandatory, and thus the City may bargain over such provisions, but is not required to do so. See In re City of Tallahassee, 5 FPER  10244 (1979).

On appeal, the First District Court of Appeal held that the relevant statutory provisions were unconstitutional under Article I, Section 6 of the Florida Constitution. The Court reasoned that these provisions abridged the constitutional right of public employees to bargain collectively because retirement is a mandatory subject of bargaining in the private sector and because there was no demonstrated compelling state interest to support the exclusion of retirement as a mandatory subject of bargaining.

Upon review, the Florida Supreme Court affirmed the lower court and rejected the argument that Article X, Section 14 of the Florida Constitution, requiring public retirement benefits to be funded on a sound actuarial basis, prohibits collective bargaining concerning retirement. The Court noted that public employers are not required to agree to any retirement proposal that would render the funding of retirement benefits actuarially unsound.

149. City of Winter Park v. LIUNA, Local 517, 409 So.2d 45, 8 FPER  13151 (Fla. 5th DCA 1981), aff'g 7 FPER  12140 (1981), cert. denied, 417 So.2d 328 (Fla. 1982).

The Court affirmed a decision in which the Commission concluded that the City unlawfully refused to bargain. The Court rejected the City's contention that the unfair labor practice charge was time-barred because, although a prior refusal to bargain occurred outside the six-month statute of limitations, a subsequent refusal occurred within the statutory time period. Citing City of Ocala v. Marion County PBA, 392 So.2d 26 (Fla. 1st DCA 1980), the Court held that an employer may not refuse to bargain with a certified bargaining agent because of its good faith doubt as to the agent's continuing majority status.

150. City of Winter Haven v. Hillsborough County PBA, Inc., 411 So.2d 386, 8 FPER  13029 (Fla. 1st DCA 1981), aff'g 7 FPER  12129 (1981).

The Court affirmed, without opinion, a decision in which the Commission dismissed the City's objection to a representation election and also dismissed a related unfair labor practice charge. The Commission determined that the PBA's policy of providing certain benefits only to dues-paying members constituted neither a breach of the union's duty of fair representation nor interference with employees' unfettered choice of a bargaining representative.

151. Dade Teachers' Association v. United Teachers of Dade, Local 1974, 412 So.2d 474, 8 FPER  13134 (Fla. 1st DCA 1982), aff'g 7 FPER  12142 (1981).

The Court affirmed, without opinion, a decision in which the Commission summarily dismissed an unfair labor practice charge which alleged that a union steward sent a student to distribute union materials to union members during the student's class time. The Commission reasoned that such activity by the union steward, however ill-advised, did not constitute "instigating or advocating support" for an employee organization's activities and was not prohibited by Section 447.501(2)(f), Florida Statutes, because there was no evidence that the student was made aware of the nature of the materials or that he was asked to support the message he distributed.

152. Pinellas County PBA, Inc. v. PERC, 412 So.2d 479, 8 FPER  13121 (Fla. 1st DCA 1982), aff'g Pinellas County PBA, Inc. v. City of Dunedin, 7 FPER  12121 (1981).

The Court affirmed, without opinion, a decision in which the Commission dismissed a unit clarification petition. The certified bargaining agent sought to modify a previously approved unit of patrolmen and sergeants to include communications clerks. The Commission concluded that the record did not demonstrate that the position was newly created or previously excluded through mistake or inadvertence, and that a recent change in Commission policy allowing the inclusion of sworn and nonsworn police personnel in the same bargaining unit did not necessitate inclusion of the communications clerks because the originally approved bargaining unit remained appropriate.

153. Paschal v. PERC, 666 F.2d 1381 (11th Cir. 1982), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982).

The federal appellate court affirmed a jury verdict against the plaintiff's claims that he was discharged in violation of the United States Constitution. Paschal contended that his forced resignation violated the First Amendment because his protected opposition to certain employment policies was the actual reason for his termination. The jury found that conduct protected by the First Amendment was not a substantial or motivating factor in Paschal's termination. Claims against the Commission were dismissed before trial.

154. City of Lake Wales v. PERC and Hillsborough County PBA, Inc., 412 So.2d 482, 8 FPER  13127 (Fla. 2d DCA 1982), denying review of 7 FPER  12246 (1981).

The Court affirmed, without opinion, a Commission decision where the only issue on appeal was the Commission's standard for awarding attorney's fees. The Commission had awarded attorney's fees to the union, the charging party in the case. The City argued that an award was inappropriate because the case involved a novel legal issue. The City also argued that the amount of the fee should have been limited to a pro rata share of the in-house union attorney's salary, and should not have been determined with reference to the fair market hourly rate charged by attorneys in private practice. The Court dismissed the City's appeal and awarded appellate costs and attorney's fees to the union's counsel.

155. Military Park Fire Control Tax District No. 4 v. DeMarois, 407 So.2d 1020, 8 FPER  13122 (Fla. 4th DCA 1981).

During the pendency of an appeal, DeMarois filed a motion to expedite the appeal pursuant to Section 447.504(5), Florida Statutes, which provides that appeals from Commission decisions "shall take precedence over all other civil matters except prior matters of the same character." The Court declared this provision unconstitutional, reasoning that a rule of priority in the Court's processing of its cases is a matter of procedure, and matters of practice and procedure are solely within the province of the Supreme Court of Florida.

156. Military Park Fire Control Tax District No. 4 v. DeMarois, 411 So.2d 944 (Fla. 4th DCA 1982), aff'g 7 FPER  12065 (1981).

The Court affirmed a decision in which the Commission concluded that the District had unlawfully terminated two fire fighters because of their organizational activities on behalf of the union. The Commission further determined that the District unlawfully interrogated employees regarding their union sentiments and threatened employees who were engaged in protected concerted activity on behalf of the union. The Court affirmed the Commission's award of attorney's fees, awarded appellate attorney's fees and costs, and remanded the case to the Commission for determination of the amount of fees and costs. See Case No. 200, this index.

157. Rawlins v. School Board of Palm Beach County, B FPER  13244 (S.D. Fla. 1982).

In the United States District Court for the Southern District of Florida, a class action suit was filed against the Commission, the Palm Beach County School Board, and its superintendent on behalf of all personal secretaries to school principals. The plaintiffs sought declaratory and injunctive relief based upon allegations that the Commission's designation of all secretaries to school principals as confidential employees violated the secretaries' right to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution. The Court granted the Commission's motion to dismiss because suing the Commission under 42 U.S.C. Section 1983 was tantamount to suing the State of Florida, and thus immunity from such suits attached to the Commission under the Eleventh Amendment to the United States Constitution.

158. Childers v. PERC and City of Hollywood, No. 81-2049 (Fla. 4th DCA March 3, 1982).

The Court granted the City's motion to dismiss the appeal and denied the City's motion for an award of attorney's fees. The appeal arose from a strike situation in which the Commission determined that certain police officers participated in a strike. On appeal, the officers sought relief from the penalty imposed by the Commission: suspension from duty for three months without pay. See In re City of Hollywood and NAGE, 7 FPER  12416 (1981). In its motion to dismiss, the City contended that the penalty was clearly within the range of penalties permitted by Section 447.507(5), Florida Statutes. The Court granted the motion without discussion.

159. Metropolitan Dade County v. Government Supervisors Association, 413 So.2d 893, 8 FPER  13128 (Fla. 3d DCA 1982), denying review of 7 FPER  12460 (1981).

The County sought pre-election review of the method by which the Commission determined that the statutory thirty percent showing of interest requirement had been met. The Commission was granted status as a party respondent in the appellate proceeding. The Court initially issued a stay of the representation election, based upon the County's argument that it would be irreparably harmed by proceeding to an election under the circumstances. Following the Commission's argument that a delay in the election would diminish employee rights and that the County was adequately protected by its right to appeal the final certification order, the Court vacated the stay of the election and dismissed the appeal from non-final administrative action.

160. City of Orlando v. Orlando Professional Fire Fighters, Local 1365, 412 So.2d 406 (Fla. 5th DCA 1982), denying review of 7 FPER  12372 (1981).

This appeal was initially filed prior to a representation election. In the election, employees voted in favor of "no organization," and the Commission subsequently dismissed the representation petition. The Commission then filed a motion to dismiss this appeal. In a lengthy order, the Court concluded that an order designating certain employees as managerial or confidential employees is not "final agency action" for which an appeal will lie and granted the motion to dismiss. The Court reasoned that because employees defeated the representation bid by the union, the City was not aggrieved by the Commission's non-final order on managerial and confidential designations. The Court stated that if the Commission relies on its managerial or confidential determinations in any future representation proceedings, the City may seek review at that time. See Case No. 141, this index.

161. City of Lake Worth v. Palm Beach County PBA, 413 So.2d 465, 8 FPER  13276 (Fla. 4th DCA 1982), aff'g 7 FPER 12069 (1981).

The Court affirmed a decision in which the Commission determined that the City Violated its duty to bargain in good faith by refusing at the conclusion of statutory impasse resolution proceedings to reduce the complete agreement to writing, to execute it, and to provide an opportunity for union ratification. The Commission further determined that the City's insistence upon maintaining the terms of the existing agreement from the inception of negotiations through impasse resolution, coupled with additional evidence of unwillingness to enter into a successor agreement, constituted a totality of circumstances demonstrating lack of good faith in bargaining and interference with the protected rights of employees. The Court also affirmed the Commission's determination that the union's refusal to commence negotiations for the next year until the complete agreement was finalized was not an unfair labor practice. The Court affirmed the Commission's award of attorney's fees, citing IBPAT, Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).

162. Brevard County PBA v. Brevard County Sheriff's Department, 416 So.2d 20, 8 FPER  13329 (Fla. 1st DCA 1982), aff'g 7 FPER  12343 (1981).

The Court affirmed a decision in which the Commission applied the settled legal conclusion that absent special legislation, deputy sheriffs are not "employees" within the meaning of Chapter 447, Part II, Florida Statutes. The union contended that the decision Violated the Florida Constitution and the equal protection clause of the United States Constitution. The Court rejected the argument, stating that it could not overrule the Florida Supreme Court's determination in Murphy v. Mack, 358 So.2d 822 (Fla. 1978), that deputies are "officers," not public employees.

163. Florida PBA, Inc. v. PERC, State of Florida, and Florida State Employees Council 79, AFSCME, 418 So.2d 1282 (Fla. 1st DCA 1982), aff'g 7 FPER  12430 (1981).

The Court affirmed, without opinion, decision in which the Commission refused the PBA's request to sever certain state correctional officer positions from the existing statewide human services bargaining unit represented by AFSCME. The PBA sought inclusion of these positions in the existing statewide law enforcement unit, or in a separate bargaining unit for correctional officers. The Commission reasoned that the PBA failed to demonstrate that the bargaining unit which currently included correctional officers was unworkable or otherwise inappropriate within the meaning of Section 443.307(4)(f)(5), Florida Statutes.

164. Heinrich v. Powers, No. 82-1294 (Fla. 2d DCA July 19, 1982) (unpublished order), dismissing appeal from Hillsborough County PBA, Inc. v. Hillsborough County Board of Criminal Justice, 8 FPER (13051 (1982).

The Court dismissed an appeal from a decision in which the Commission defined a bargaining unit of correctional officers employed by the Hillsborough County Board of Criminal Justice. The Commission had dismissed the representation petition after employees voted in favor of "no organization." In this appeal, the Sheriff of Hillsborough County sought review of the bargaining unit determination despite the fact that the underlying representation case had already been dismissed by the Commission.

165. United Faculty of Florida, Local 1847 v. Board of Regents, 417 So.2d 1055, 8 FPER  13406 (Fla. 1st DCA 1982), rev'g 7 FPER  12409 (1981).

This appeal was taken from a Commission order vacating two certifications for bargaining units which included graduate assistants. The Commission order was entered pursuant to Section 447.203(3)(i), Florida Statutes, a recent legislative amendment exempting graduate assistants from the statutory definition of "public employee." The Court determined that the statutory amendment was unconstitutional, reversed the Commission's order under review, and ordered the Commission to reinstate the certifications at issue.

In a lengthy opinion, the Court discussed the prior history of attempts to organize graduate assistants for purposes of collective bargaining, and also discussed in detail the legislative history of the statutory amendment at issue. The Court stated that the right to bargain collectively provided for in Article I, Section 6 of the Florida Constitution can be abridged only "where there is a strong showing of a rational basis for abridgment which is justified by a compelling state interest," citing City of Tallahassee v. PERC, 393 So.2d 1147 (Fla. 1st DCA 1981).

The Court discussed the situation of graduate assistants as both students and employees and concluded: "The primary beneficiaries of the services performed by the graduate assistants are the faculty members whom they assist, and the university itself, while the graduate assistants are beneficiaries of a paycheck. This looks like employment." The Board of Regents argued that collective bargaining for graduate assistants was unwise because it would interfere with quality education, because costs would be increased, and because the employment of graduate assistants is of brief duration. The Court rejected these asserted state interests as not sufficiently compelling to justify denying collective bargaining rights to graduate assistants.

The Court expressly declined to reach the question of whether other groups listed in Section 447.203(3)(i), may be constitutionally excluded from the right to bargain collectively.

166. City of Bradenton v. PERC, 418 So.2d 1287 (Fla. 2d DCA 1982), aff'g Sarasota County PBA, Inc. v. City of Bradenton, 7 FPER  12441 (1981).

The Court affirmed, without opinion, a decision in which the Commission denied the City's motion for reconsideration of a certification order. The Commission had certified the Sarasota County PBA as the exclusive collective bargaining agent following voluntary recognition of the PBA by the City. Subsequently, the City moved the Commission to reconsider the certification on several grounds, including the City's contention that it was not satisfied that the PBA had the support of a majority of bargaining unit members at the time of certification. The Commission declined to revoke the certification based upon mere assertions of lack of majority status when the City's recognition had not been withdrawn prior to certification.

167. City of Umatilla v. PERC, 422 So.2d 905, 9 FPER  14088 (Fla. 5th DCA 1982), rev'g Volusia County PBA, Inc. v. City of Umatilla, 7 FPER  12346 (1981), cert. denied, 430 So.2d 452 (Fla. 1983).

The Court reversed a decision in which the Commission concluded that the City had committed an unfair labor practice by discriminatorily terminating one of the City's police officers. In its order, the Commission rejected the hearing officer's ultimate findings of fact regarding the motivation for the discharge after determining that the findings were not supported by competent substantial evidence. The Court characterized the principal dispute as whether the officer was terminated because he was insubordinate or because of his union activities. Reasoning that the question of motive and intent are not unusual, and that the findings of the trier of fact cannot be overturned if there is competent substantial evidence to support them, the Court concluded that the Commission committed reversible error when it rejected the hearing officer's findings.

168. School Board of Dade County v. Dade Teachers Association, 421 So.2d 645, 9 FPER  14065 (Fla. 1st DCA 1982), aff'g 7 FPER  12398 (1981).

The Court affirmed a decision in which the Commission found that the United Teachers of Dade (UTD), the incumbent union, and the School Board committed unfair labor practices against the Dade Teachers Association (DTA). The dispute arose when the DTA, seeking to oust the incumbent union as the certified bargaining agent, began soliciting support in school parking lots and posting literature on school bulletin boards. UTD representatives removed DTA literature from the school bulletin boards, and the School Board prohibited DTA teachers from soliciting support in parking lots other than at their assigned schools.

The Court noted that the Commission is entitled to considerable deference because of its expertise in dealing with labor problems. The Court approved the Commission policy that no-access and no-solicitation rules which discriminate against one union in favor of another are presumptively invalid. The burden was thus shifted to the School Board to demonstrate that the restrictions imposed upon employee organization activities in this case were justified.

The School Board contended that a restrictive access policy was justified by the "extraordinary circumstance" of the possibility of increased criminal activity on school campuses from outsiders entering school property. The Court found that there was nothing in the record to support this bare allegation or to link this allegation to the activities at issue. Regarding the bulletin board question, the Court stated that such a restriction "constitutes censorship in its most direct form." The Court affirmed the Commission in all respects, with Judge Barkdull concurring on the bulletin board issue but dissenting on the parking lot issue.

169. Galbreath v. School Board of Broward County, 424 So.2d 837, 9 FPER , 14095 (Fla. 4th DCA 1983), aff'g 7 FPER  12287 and 12288 (1981), aff'd 446 So.2d 1045 (Fla. 1984), U.S. cert. denied 105 S.Ct. 55 (1984).

The Court affirmed two summary dismissals of unfair labor practice charges filed against the School Board and the certified bargaining agent by a public school teacher. Galbreath filed a grievance which the certified bargaining agent determined was without merit. The union therefore refused to process it through arbitration in accordance with a contractual provision which gave the union control over the arbitration step of the grievance procedure. The Court stated the question presented in the case as follows:

170. Palm Beach County v. CWA, 422 So.2d 857 (Fla. 4th DCA 1982), aff'g 7 FPER  12239 (1981).

The Court affirmed a decision in which the Commission certified the union as the exclusive collective bargaining representative. The County sought an order from the Court vacating the certification, directing the Commission to hold an evidentiary hearing, and allowing the County discovery rights concerning the conduct of the representation election. The County also sought an award of attorney's fees. The Court temporarily relinquished jurisdiction in order to allow the Commission the opportunity to resolve an alleged discrepancy of seventy-five votes between the number of ballots counted and the number of persons voting in the election. After the Commission satisfactorily resolved the alleged discrepancy, the Court struck the County's motion for attorney's fees and affirmed the order on appeal.

171. Leapley v. Board of Regents, 423 So.2d 431, 9 FPER  14096 (Fla. 1st DCA 1982), rev'g 8 FPER  13034 (1982), motion for reconsideration denied, 8 FPER  13096 (1982).

The Court reversed a decision in which the Commission dismissed an unfair labor practice charge filed by an employee of the University of South Florida. The case arose when Leapley filed a grievance which the Board of Regents refused to process because of its position that Leapley was not included within the bargaining unit at the University.

The Court viewed the question of whether Leapley was a member of the bargaining unit as essentially a factual determination. Reasoning that this question could be resolved by ordinary methods of proof, the Court concluded that the Commission incorrectly rejected the findings of the hearing officer on the issue. The Court determined that the Commission acted incorrectly when it viewed this essentially factual matter as a conclusion of law, and accordingly reversed the Commission's order and remanded with directions to adopt the hearing officer's recommended order.

172. Hillsborough Classroom Teachers Association, Inc. v. School Board of Hillsborough County, 423 So.2d 969, 9 FPER  14097 (Fla. 1st DCA 1982), aff'g 8 FPER  13074 (1982).

The Court affirmed a decision in which the Commission summarily dismissed an unfair labor practice charge which alleged that the School Hoard had refused to bargain concerning class size and minimum staffing level proposals. The Court expressly agreed with the Commission's view that the setting of class size and minimum staffing levels are "policy decisions" which are not mandatory subjects of bargaining, and further stated that the Court's decision did not preclude mandatory bargaining as to the demonstrated impact of such policy decision on the wages, hours, and terms and conditions of employment of bargaining unit members.

173. State ex rel. Healy v. Town of Pembroke Park, No. 81-2377S2CZ (Fla. 17th Cir. Ct. November 12, 1982), enforcing Florida State Lodge, FOP v. Town of Pembroke Park, 7 FPER  12160 (1981), aff'd, 446 So.2d 198, 10 FPER  15101 (Fla. 4th DCA 1984).

The circuit court enforced a Commission order finding that the Town committed an unfair labor practice by subcontracting the Town's police service to the county sheriff in order to avoid bargaining with the police officers' certified representative and to retaliate against the police officers for filing grievances.

The Court ordered the employer to unconditionally offer reinstatement to its police officers within 120 days of the date of the order, to make them whole for any loss of earnings, to bargain with the certified agent, and to pay costs and attorney's fees. See Case No. 201, this index.

174. Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d 133, 9 FPER  14098 (Fla. 1st DCA 1982), aff'g 7 FPER  12300 (1981), aff'd in part and rev'd in part, 475 So.2d 1221, 12 FPER  17019 (Fla. 1985).

A majority of the First District Court's panel agreed with the Commission's determination that it is improper for a public employer to insist to the point of impasse upon a management rights clause which would deprive the union of the right to impact bargaining upon any changes in wages, hours or terms and conditions of employment not covered by the agreement.

The Court distinguished private sector cases by noting that Section 447.403, Florida Statutes, allows a public employer to impose a mandatory subject of bargaining by legislative body action, that Florida public employees do not have the right to strike, and that Section 447.301, Florida Statutes, requires a relatively broad scope of negotiations to counterbalance the absence of the right to strike. See Case No. 216, this index, for Florida Supreme Court decision.

175. Hotel, Motel, Restaurant Employees and Bartenders Union. Local 737 v. Escambia County School Board, 426 So.2d 1017 (Fla. 1st DCA 1983), aff'g 7 FPER  12395 (1981).

The Court affirmed the Commission's conclusion that when provisions in a local civil service act conflict with those in Chapter 447, Part II, Florida Statutes, the latter provisions prevail. Therefore, a local civil service act could not impede a public employer from implementing a collective bargaining agreement. The Court held that Section 447.309(3), Florida Statutes, when read in pari materia with Section 447.601, Florida Statutes, contemplates conflicts between collective bargaining agreements and laws or regulations other than laws or regulations concerning civil service. A contrary construction would raise serious constitutional doubts.

The Court also affirmed the Commission's determination that no unfair labor practice had occurred as a result of the employer's refusal to implement the ratified agreement because of an outstanding circuit court injunction.

176. Collier County Board of County Commissioners v. PERC, 427 So.2d 739, 9 FPER  14225 (Fla. 1st DCA 1983), aff'g Federation of Public Employees v. Collier County Board of County Commissioners 8 FPER  13145 (1982).

The Court affirmed the Commission's definition of a bargaining unit comprised of manual, semi-skilled, and skilled county employees.

177. Southeast Volusia Hospital District v. National Union of Hospital and Health Care Employees, 429 So.2d 1232, 9 FPER  14173 (Fla. 5th DCA 1983) , rev'g 8 FPER  13161 (1982), dismissed, 452 So.2d 568 (Fla. 1984).

The Court reversed the Commission's order which interpreted Section 447.307, Florida Statutes, as permitting simultaneous voting on the issues of whether professionals and nonprofessionals desired to be included in one bargaining unit and whether the employees wanted to be represented by the union. Stating that "common sense" supported the hospital's position, the Court held that Section 447.307 mandates an election on union representation only after the unit is established by the self-determination election. Consequently, the Court ordered the Commission to conduct a new representation election in each bargaining unit as a result of the employees' earlier selection of separate bargaining units.

The Court rejected the Commission's assertion that the hospital waived any objection to the form of the ballot by not objecting prior to the election, because the Commission had not dismissed the post-election objection on the grounds of waiver.

178. AFSCME, Local 1363 v. PERC, 430 So.2d 481, 9 FPER  14172 (Fla. 1st DCA 1983), aff'g 8 FPER  13278 (1982). The Court affirmed the Commission's declaratory statement which held that the parties to a collective bargaining agreement may agree on a provision which excludes disputes concerning discipline and discharge from the contractual grievance procedure, particularly when the excluded disputes may be resolved through a civil service system.

179. School Board of Clay County v. PERC, 431 So.2d 992 (Fla. 1st DCA 1983), aff'g Clay County Education Association v. School Board of Clay County, 8 FPER  13365 (1982).

The Court affirmed the Commission's decision finding that the public employer committed an unfair labor practice by prohibiting teachers from wearing certain tee shirts. The tee shirts bore the inscription "TEACHERS ARE PEOPLE TOO! CCEA/FTP-NEA," surrounding a cartoon representation of seven adults, one child and a dot. Rejecting the argument that Sections 447.509(l)(c) and 447.501(2)(f), Florida Statutes, authorized such a ban, the Commission reaffirmed earlier decisions which held that these provisions were intended to prohibit teachers from affirmatively instigating or advocating support among students or organizational activity.

The Court granted the union's motion for appellate attorney's fees.

180. Kennedy v. Orange County Board of County Commissioners, 431 So.2d 1006, 9 FPER  14224 (Fla. 5th DCA 1983), aff'g 8 FPER  13313 (1982).

The Court affirmed the dismissal of an unfair labor practice charge which alleged that the employer had denied an employee a promotion because he had reported safety violations, and that the employer had refused to discuss the employee's grievance in good faith.

181. City of Hollywood v. PERC, 432 So.2d 79, 9 FPER  14222 (Fla. 4th DCA 1983), dismissing appeal from Hollywood Fire Fighters, Local 1375 v. City of Hollywood, 8 FPER  13324 (1982).

The Court dismissed an appeal of a Commission order as untimely because the motion for reconsideration, filed pursuant to a Commission order extending the time for filing the motion, did not toll rendition of the final Commission order. The Court ruled that, like circuit courts, the Commission had no authority to suspend rendition of its order beyond the time allowed for filing a motion for reconsideration in Florida Administrative Code Rule 380-15.05, as it existed at that time. Subsequently, the Commission amended the rule. See Fla. Admin. Code Rule 380-15.005(4).

The Court held that Section 120.53(1)(b) and (c), and 447.207(1), Florida Statutes, granted the Commission the requisite authority to promulgate a rule allowing for motions for reconsideration which, when timely filed, suspend rendition of a final order for purposes of filing a notice of appeal.

The appellee, Hollywood Fire Fighters, Local 1375 was awarded attorney's fees and costs, the amount to be determined by the Commission.

182. AFSCME, Local 1907 v. City of Miami and FOP, Miami Lodge 20 v. City of Miami, Nos. AP-259 and AP-Si, 9 FPER  14170 (Fla. 1st DCA 1893), denying review of 8 FPER  13371 and 13397 (1982).

The Court treated a notice of appeal seeking review of a Commission order deferring an unfair labor practice charge to arbitration as a petition for common law writ of certiorari.

The Court denied the unions' consolidated petitions after finding that the Commission did not depart from the essential requirements of law or that review of final agency action would not provide an adequate remedy.

183. Kennedy v. Orange County Board of County Commissioners, No. 82-1104 (Fla. 5th DCA April 22, 1983) (unpublished order), rev'd, 452 So.2d 519 (Fla. 1984).

The Fifth District Court of Appeal denied the Commission's request to be designated a party appellee because the Commission was the forum in the underlying case from which the appeal was taken. See Case No. 204, this index.

184. Charity v. State, Nos. AO-201 and AP-264, 9 FPER  14263 (Fla. 1st DCA May 16, 1983), aff'g Charity v. Office of Labor Relations, Dept. of Administration, State of Florida, 8 FPER  13386 (1982), and Charity v. Florida State Employees Council 79, AFSCME, 8 FPER  13385 (1982).

The Court affirmed, without opinion, the Commission's dismissals of unfair labor practice charges which alleged that the employer had demoted an employee for filing a grievance and had refused to arbitrate the grievance. One charge also alleged that the certified bargaining agent had unlawfully refused to submit the grievance for arbitration.

185. City of Orlando v. PERC, 435 So.2d 275, 9 FPER  14264 (Fla. 5th DCA 1983), rev'g Orange County PBA v. City of Orlando, 8 FPER  13045 (1981), petition for review denied, 443 So.2d 980 (Fla. 1983).

The Court reversed the Commission's determination that the employer unlawfully refused to bargain over promotion criteria and procedures for the position of lieutenant, which was not in the bargaining unit represented by the certified bargaining agent. The Court held that promotion procedures and criteria for a position outside of the bargaining unit do not constitute the wages, hours or terms and conditions of employment of the employees within the bargaining unit because "promotion itself is speculative and uncertain."

186. School Board of Escambia County v. Taylor, No. 78-3006 (Fla. 1st Cir. Ct. Nay 9, 1983).

The court granted the union's motion to intervene and motion to dissolve a previously granted injunction. The injunction had prevented the implementation of a collective bargaining agreement in which certain provisions conflicted with a local civil service statute. The court relied upon the First District Court of Appeal's decision in Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737 v. Escambia County School Board, 426 So.2d 1017 (Fla. 1st DCA 1983). See Case No. 175, this index.

187. Dade Teachers Association v. United Teachers of Dade, Local 1974, 436 So.2d 115, 9 FPER  14294 (Fla. 3d DCA 1983), aff'g 8 FPER  13380 (1982).

The Court affirmed, without opinion, the Commission's summary dismissal of a charge filed by a rival employee organization alleging that the incumbent, after having gained access to the rival's showing of interest, committed an unfair labor practice by sending a letter to each employee whose name appeared on the showing of interest to verify that the employee had indeed signed an authorization card. The Commission found that the sending of such letters was not unlawful, but rather constituted protected free speech, since the letters contained neither threats of reprisal nor promises of benefits.

188. National Union of Hospital and Health Care Employees v. Southeast Volusia Hospital District, 436 So.2d 294, 9 FPER  14293 (Fla. 1st DCA 1983), aff'g 8 FPER  13419 (1982).

The Court affirmed the Commission's award of attorney's fees and litigation costs against the charging party. It expressly approved the standard employed by the Commission that such an award may be made when the charge is frivolous, groundless or unreasonable, which is the same standard used to determine whether an attorney's fee award should be made to a prevailing defendant in a federal Title VII civil rights case.

189. City of Bradenton v. Southwest Florida PBA, 440 So.2d 358, 9 FPER  14360 (Fla. 2d DCA 1983), aff'g 9 FPER  14100 (1983).

The Court affirmed, without opinion, a Commission order finding that the City had committed an unfair labor practice by applying procedural general orders in a discriminatory manner to union members and by discharging a police captain, a managerial employee, for refusing to participate in such discriminatory activity. The Commission order also awarded attorney's fees and litigation costs to the PBA.

190. Ocean City-Wright Fire Control District v. Ocean City-Wright Fire Fighters Association, 440 So.2d 413, 9 FPER  14345 (Fla. 1st DCA 1983), aff'g 9 FPER  14033 (1982).

The Court upheld a Commission determination to include fire captains and fire inspectors in a rank-and-file bargaining unit where the facts established a community of interest supporting such inclusions. In affirming the Commission, the Court indicated that it would "defer to PERC's expertise where, as here, competent and substantial evidence for the decision exists in the record."

The Court also upheld the Commission's refusal to consider the employer's post-election petition. Since the petition "did nothing more than protest the inclusion of captains in the bargaining unit" and did not relate to the conduct of the election or conduct affecting the election results, "substantive consideration of the post-election petition [by the Commission] would serve no purpose."

191. City of St. Augustine v. Professional Fire Fighters of St. Augustine, Local 2282, 440 So.2d 416, 9 FPER  14344 (Fla. 5th DCA 1983), rev'g 8 FPER  13349 (1982), cert. denied, 450 So.2d 488 (Fla. 1984).

The Court reversed a Commission determination that the City's fire captains, who were second in command in the fire department, were not managerial employees. The Court held that even though these captains were fire suppression shift commanders, their duties as the first step in grievance processing, their ability to suspend subordinates for disciplinary reasons and to make hiring recommendations, and the fact that they had historically been considered by the employer as managerial, warranted a managerial designation.

192. FUSA, FTP-NEA v. Hillsborough Community College, 440 So.2d 593, 9 FPER  14359 (Fla. 1st DCA 1983), rev'g 9 FPER  14092 (1983), appeal dismissed, 447 So.2d 886 (Fla. 1984).

The Court reversed a Commission order dismissing an unfair labor practice charge against the employer. The hearing officer had found that the employer had discriminated against two of its employees for pursuing grievances. The Commission rejected this finding as not supported by competent substantial evidence and impermissibly substituted its own findings of fact for those of the hearing officer. The Court also concluded that the Commission's "contention that the entire burden remains upon employees to show that but for the protected activity they would not have been fired (including negation of other asserted grounds) is simply untenable."

193. Broward Educational Support Personnel Association v. School Board of Broward County, 441 So.2d 640 (Fla. 4th DCA 1983), aff'g 9 FPER  14007 (1982).

The Court affirmed, without opinion, a Commission order dismissing a post-election petition seeking to re-litigate the "public employee" status of personal secretaries to school principals whom the Commission had designated as confidential prior to the election.

194. City of Orlando v Orlando Professional Fire Fighters, Local 1365, 442 So.2d 238, 9 FPER  14354 (Fla. 5th DCA 1983), rev'g 9 FPER  14076 (1983), petition for review denied, 450 So.2d 487 (Fla. 1984).

The Court reversed a Commission determination that the City had committed an unfair labor practice by failing to bargain with the certified bargaining agent over standards for promotion of unit members to fire captain, a position outside the bargaining unit. The Court held that promotional procedures and criteria for a position outside the bargaining unit are not required subjects of bargaining.

195. State Department OF Administration v. PERC and Florida Public Employees Council 79, AFSCME, 443 So.2d 258, 10 FPER  15042 (Fla.1st DCA 1983), aff'g, 9 FPER  14099 1083).

The Court affirmed a Commission order which denied a request that Department of Administrative Hearings (DOAH) hearing officers and their secretaries be designated, respectively, as managerial employees and confidential employees and which included certain other secretarial positions in the defined unit notwithstanding the employer's contention that they be excluded on the basis of an alleged conflict of interest with other unit members. Noting that a managerial designation effectively results in the deprivation of the right to collectively bargain guaranteed by Article I, Section 6, Florida Constitution, the Court held that the provisions of Section 447.203, Florida Statutes, establishing criteria for such designations, must be narrowly construed. The Court stated that in view of this required narrow construction, the deference due Commission determinations, and the competent substantial evidence supporting the order under review, the order should not be disturbed.

196. Board of Regents v. United Faculty of Florida, 443 So.2d 982, 10 FPER  15000 (Fla. 1st DCA 1983), aff'g 9 FPER  14144 (1983).

The Court affirmed, without opinion, the Commission's summary dismissal of a charge alleging that the UFF had committed an unfair labor practice by simultaneously attempting to represent a collective bargaining unit of graduate research/teaching assistants and a unit of faculty members. The Commission had based its summary dismissal on the Board of Regents' lack of standing to complain of any alleged violation of the duty of fair representation owed to bargaining unit employees by their bargaining agent.

197. DaCosta v. PERC, 443 So.2d 1036, 10 FPER  15041 (Fla. 1st DCA 1983), rev'g DaCosta v. Miami Association of Fire Fighters, Local 587, 8 FPER  13048 (1981), dismissed, 450 So.2d 487 (Fla. 1984).

The Court reversed a Commission order dismissing an unfair labor practice charge filed against an employee organization alleged to have harassed a nonunion bargaining unit member by posting, within six months of the filing of the charge, lists of the names of all nonunion bargaining unit members, including the charging party. After the nonmembership lists were posted, the charging party received late-night anonymous phone calls and verbal abuse from his fellow employees. The Commission, adopting the hearing officer's findings of fact in toto, had agreed with the hearing officer's conclusion that the evidence failed to establish any threat or intimidation against the charging party within the six month limitation period for which the organization could be held responsible. Accordingly, it dismissed the charge. The Court, in reversing the Commission, held that the Commission had erred in not fully considering events outside the six-month limitation period as evidence to determine whether the posting and subsequent events, which occurred within the six-month period, constituted unfair labor practices for which the organization could be held liable.

With respect to the organization's liability for the abuse the charging party suffered at the hands of his co-workers, the Court further ruled that the organization should be held responsible for the "reasonably foreseeable consequence" of its conduct. The cause was remanded to the Commission for further proceedings, "including the taking of further evidence, if any, as nay be required." See Case No. 226, this index, for disposition of case on remand.

198. Dade County PBA v. City of Homestead, 444 So.2d 465, 10 FPER  15079 (Fla. 3d DCA 1984), rev'g 7 FPER  12347 (1981), rev'd PERC v. Dade County PBA, 467 So.2d 987, 11 FPER  16169 (Fla. 1985).

The Third District Court of Appeal reversed a Commission order holding that the Dade County PBA, through the actions of its Homestead membership representative, had violated the strike prohibition provisions of Chapter 447, Part II, Florida Statutes, notwithstanding the efforts of other PBA representatives to forestall any strike activity. In so holding, the Commission had rejected the determination made by the hearing officer in the case that, for purposes of ascertaining the PBA's liability for the unlawful strike activities of its Homestead membership representative, such representative was not an "agent" of the PBA within the meaning of the strike prohibition provisions of Chapter 447, Part II. The Court concluded that this action on the part of the Commission constituted an impermissible rejection of the hearing officer's findings of fact and, accordingly, reversed and remanded with directions that the Commission adopt the hearing officer's recommendations. However, by separate order, the Court certified the following question to the Florida Supreme Court as one of great public importance: Whether the Commission may overturn a hearing officer's ultimate determination of agency in light of what it perceives to be the applicable law and relevant policy considerations? See Case No. 209, this index for opinion of Florida Supreme Court.

199. City of Tallahassee v. Leon County PBA, Inc., 445 So.2d 604, 10 FPER  15052 (Fla. 1st DCA 1984) , aff'g 8 FPER  13400 (1982).

The Court affirmed a Commission order (1) finding that the City had committed an unfair labor practice by unilaterally discontinuing its past practice of paying 100% of PBA-represented City employees' health insurance premiums without negotiating with the PBA and by sending notice of the change directly to these affected employees, and (2) awarding attorney's fees and costs to the PBA. In finding that an unfair labor practice had been committed, the Commission had rejected the City's argument that the PBA had waived its right to bargain over the charge.

In a consolidated case involving the same parties the Court affirmed a Commission order holding that the PBA had not committed an unfair labor practice as a result of its delay in responding to the City's request that the PBA submit bargaining proposals so that negotiations could commence on those subjects covered by such proposals.

200. DeMarois v. Military Park Fire Control Tax District No. 4, 446 So.2d 120, 10 FPER  15123 (Fla. 4th DCA 1984), aff'g 9 FPER  14074 (1983).

The Court affirmed, without opinion, a Commission order setting the amount of back pay to be awarded to a discriminatorily discharged fire fighter. The Commission had setoff against the back pay award an amount equal to the fire fighter's earnings from his own closely held corporation, of which he was the only employee. In so doing, the Commission had noted that after an employer raises the issue of setoff with evidence of outside earnings, the employee has the burden to show why there should be no setoff. In addition, the Commission had also setoff from the back pay award an amount equal to the fire fighter's unemployment compensation benefits. See Case No. 156, this index.

201. Town of Pembroke Park v. State ex rel. Healy, 446 So.2d 198, 10 FPER  15101 (Fla. 4th DCA 1984), petition for review denied, 456 So.2d 1182 (Fla. 1984).

The Court (1) affirmed the circuit court's order granting enforcement of a Commission order, Florida State Lodge, FOP v. Town of Pembroke Park, 7 FPER  12160 (1981), finding that the Town committed an unfair labor practice, and (2) reversed the circuit court's denial of the Commission's motion to hold the Town in contempt for failure to comply with the circuit court's enforcement order. The case was remanded to the circuit court with directions to conduct an evidentiary hearing and to determine whether the Town complied with the circuit court's order directing enforcement of the Commission's reinstatement order. See Case No. 173, this index.

202. Hillsborough County Board of County Commissioners v. PERC, 447 So.2d 1371 (Fla. 1st DCA 1983).

The Court reversed a Commission certification order because of the employee organization's failure to fulfill the registration requirements of Section 447.305, Florida Statutes. Prior to the issuance of the Commission order under review, the employer had filed a motion seeking the dismissal of the employee organization's representation-certification petition on the ground that the organization was improperly registered due to its alleged failure, in its registration materials, to disclose its purported affiliation with another employee organization. The Commission, in Hillsborough County Government Employees Association, Inc. v. Hillsborough County Board of County Commissioners, 7 FPER  12399 (1981), had denied the motion, declaring that questions regarding the validity of a current registration license were not appropriately raised in a representation-certification proceeding. The Court, though, held that a public employer may challenge the validity of a petitioning employee organization's registration in a representation-certification proceeding and that therefore the Commission had erred in refusing to consider the employer's motion to dismiss. The cause was remanded to the Commission, with directions that the petition be dismissed.

203. PERC v. City of Orlando, 452 So.2d 517, 10 FPER  15230 (Fla. 1984).

The Court quashed an order of the Fifth District Court of Appeal (unpublished order) denying a Commission request for party-appellee status in a proceeding to review a final Commission order. The Fifth District had held that the Commission "is the forum from which the appeal is taken and, as such, is not a proper party in this court." The Supreme Court disagreed, holding that the Commission "is a proper party to review proceedings from its own orders." It reasoned that, in light of the Commission's statutory authority to seek enforcement of its orders, and the statutory requirement that an appellate court must consolidate any enforcement action and appellate proceeding involving the same Commission order, "it is more reasonable to grant PERC party status in review proceedings directly than to require PERC to acquire such status indirectly by bringing an enforcement action every time PERC believes the public interest requires its participation." The Court, however, went on to state that the Commission should "restrain its active participation in review proceedings to those cases where it has a direct interest or where the order under review has resolved a public labor law issue that has an impact upon other public employees, public employers and taxpayers."

204. PERC v. Kennedy, 452 So.2d 519 (Fla. 1984).

On the authority of PERC v. City of Orlando, 452 So.2d 517 (Fla. 1984), the Court reversed an order of the Fifth District Court of Appeal (unpublished order) denying a Commission request that it be designated a party appellee in a proceeding to review a Commission order. See Case No. 183, this index.

205. Collier County Association of Educational Office and Classroom Aide Personnel v. School Board of Collier County; Hillsborough Classroom Teachers Association, Inc. v. School Board of Hillsborough County; Polk Education Association, Inc. v. School Board of Polk County, 456 So.2d 1185 (Fla. 2d DCA 1984), aff'g 9 FPER  14333 (1983); 9 FPER  14243 (1983); 9 FPER  14326 (1983).

The Court consolidated and affirmed, without opinion, the Commission's orders in the above-styled three cases. In all three cases the Commission had designated personal secretaries to school principals as confidential employees in compliance with School Board of Palm Beach County v. PERC, 374 So.2d 527 (Fla. 1st DCA 1978).

In the School Board of Collier County case, the employee organization's request for an evidentiary hearing on the issue of the confidential status of the personal secretaries to school principals was denied by the Commission. The Commission stated that:

In the School Board of Hillsborough County case, the Commission held that the hearing officer did not err in failing to admit evidence proffered by the employee organization as to the job functions of personal secretaries to school principals. The organization also argued that the per se confidential designation of such secretaries violates due process and equal protection and abridges their right to bargain collectively, but the Commission refused to consider these constitutional questions.

In the School Board of Polk County case, the Commission found that personal secretaries to school principals were per se confidential employees.

206. Town of Pembroke Park v. PERC, No. 84-739, 10 FPER  15190 (Fla. 4th DCA April 10, 1984).

The Court denied the Town's petition which sought to prohibit discovery in connection with a Commission proceeding to determine the amount of reasonable attorney's fees and costs to be paid by the Town to the successful charging party. The Commission had authorized the disputed discovery in Florida State Lodge, FOP v. Town of Pembroke Park, 10 FPER  15087 (1984).

207. Orange County PBA v. City of Casselberry and PERC, 457 So.2d 1125, 10 FPER  15284 (Fla. 1st DCA 1984), rev'g 9 FPER  14120 (1983), aff'd in part and rev'd in part, 482 So.2d 336, 12 FPER  17062 (Fla. 1986).

The First District Court of Appeal reversed a Commission order dismissing an unfair labor practice charge against an employer. The Court held that the employer had violated Section 447.5O1(1)(a) and (c), Florida Statutes, by insisting to impasse upon the exclusion of contractual disputes regarding discharge and demotion from the grievance procedure to be set forth in its collective bargaining agreement with the PBA. The Court's decision was based upon its determination that the exclusion of such disputes from the grievance-to-arbitration provisions of a collective bargaining agreement is a non-mandatory (permissive) subject of bargaining, even where the public employer has a civil service ordinance covering demotion and discharge. See Case No. 222, this index, for Florida Supreme Court decision.

208. AFSCME, Local 3032 v. Delaney, 458 So.2d 372, 10 FPER  15300 (Fla. 1st DCA 1984), aff'g Delaney v. City of Hialeah, 9 FPER  14339 (1984).

The Court affirmed the Commission's order which found that a union time pool, contained in a collective bargaining agreement and applicable to all bargaining unit members, was violative of Sections 447.501(1) (a) and 447.301(1), Florida Statutes. The time pool agreement required all employees of the bargaining unit, including those who did not belong to the union, to contribute a portion of their leave time to a pool to be used for union business. The Court adopted the Commission's reasoning that such an agreement "constitutes a form of union security in which all bargaining unit members contribute to the support of the union as a condition of their employment." The City was ordered to restore previously deducted sick leave or compensatory leave credit to any employee who was not a union member and who requested such a refund.

209. PERC v. Dade County PBA, 467 So.2d 987, 11 FPER  16169 (Fla. 1985), quashing Dade County PBA v. City of Homestead. 444 So.2d 465, 10 FPER  15079 (Fla. 3d DCA 1984), and directing reinstatement of 7 FPER  12347 (1981).

The Supreme Court held that the Commission lawfully rejected a hearing officer's finding on the issue of agency, where the rejection was based on the Commission's view that the hearing officer "applied the wrong standard of proof of agency to the facts." The Court reasoned that "how the law of agency should be applied is an interpretation of law and policy and not a determination of fact." It therefore reinstated the Commission's order which had been reversed by the Third District Court of Appeal. The Commission had found the Dade County PBA liable for the strike activities of one of its stewards, had imposed a monetary penalty against the PHA, and had assessed reasonable attorney's fees and litigation costs. See Case No. 198, this index.

210. Board of County Commissioners of Orange County v. Central Florida Professional Fire Fighters Association, Local 2057, 467 So.2d 1023, 11 FPER  16168 (Fla. 5th DCA 1985), aff'g in part and rev'g in part, 9 FPER  14372 (1983).

The Court affirmed a Commission determination that the County had committed an unfair labor practice by unilaterally discontinuing its practice of allowing bargaining unit fire fighters to leave their duty station to purchase food and supplies. The Court held that this "store visitation" policy was either a condition impacting upon employment or a term or condition of employment that the County could not, under the circumstances of the case, alter without bargaining with the certified union. The Court reversed the posting remedy fashioned by the Commission and the Commission's award of attorney's fees and costs.

211. City of Hollywood v. Hollywood Municipal Employees Local 2432, AFSCME, 468 So.2d 1036, 11 FPER  16196 (Fla. 1st DCA 1985), rev'g, 9 FPER  14277 (1983).

The Court reversed a Commission order dismissing a charge alleging that Local 2432 had violated Section 447.403(4)(e), Florida Statutes, by refusing to execute and submit to unit employees for ratification an agreement including tentatively agreed-upon and legislatively imposed items. In dismissing the charge, the Commission had rejected a literal interpretation of Section 447.403(4)(e), because, in its view, such an interpretation "would produce the absurd result of forcing the union to ...' agree to a proposal' or 'make a concession.'" The Court held the Commission's interpretation of the statute was "not supported by the wording of the statute or the legislative intent in enacting the statute." The Court remanded the case with directions that the hearing officer's recommended order, finding the union guilty of an unfair labor practice, be adopted.

212. Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 468 So.2d 1089, 12 FPER  17016 (Fla. 4th DCA 1985), aff'g In re United Faculty of Palm Beach Junior College, 10 FPER  15225 (1984).

The Court affirmed a declaratory statement issued by the Commission which held that a contract proposal presented by an employer which would exclude from the contract's grievance arbitration procedure all contractual disputes arising after the expiration date of the contract is not a mandatory subject of bargaining. In refusing to overturn the Commission's holding, the Court stated that it is "a well-established maxim of administrative law that a reviewing Court shall not disturb an agency's interpretation of a statute which that agency is responsible for enforcing absent a clear showing of error."

213. Florida Public Employees Council 79 v. State and PERC, 472 So.2d 1184, 12 FPER  17017 (Fla. 1st DCA 1985), aff'g 10 FPER  15208 (1984).

The Court affirmed, without opinion, the Commission's order dismissing the union's charge that the State violated Section 447.501(1) (a) and (b), Florida Statutes, by unilaterally changing the amount and method of payment for electrical utilities used by resident park rangers. The Commission had held the union clearly and unmistakably waived its right to bargain over the change by agreeing to incorporate in its collective bargaining agreement with the State the provisions of Chapters 22K-4 and 5, Florida Administrative Code, which authorized the State's unilateral action.

214. School Board of Lee County v. PERC, 472 So.2d 1193 (Fla. 2d DCA 1985).

The Court denied a petition for writ of prohibition filed by the School District. The School District had sought to prevent the Commission from proceeding to resolve an unfair labor practice charge filed by the Association. The charge alleged that the School District violated Section 447.501(1) (a), Florida Statutes, by refusing to allow employee supporters of the Association to distribute the Association's newsletter to employees during non-work time and in non-work areas and by denying these supporters access to a general purpose employee bulletin board. The School District argued that exclusive jurisdiction over this controversy resided with the circuit court pursuant to the provisions of Section 447.509, Florida Statutes (1983). Relates to Support Personnel Association of Lee County v. School District of Lee County, 11 FPER  16231 (1985).

215. Broward County Classroom Teachers Association, Inc. v. School Board of Broward County, 475 So.2d 697, 12 FPER  17018 (Fla. 1st DCA 1985), aff'g 10 FPER  15246 (1984).

The Court affirmed, without opinion, the Commission's denial of an award of attorney's fees and costs to a prevailing charging party. In the unfair labor practice proceedings, the Commission concluded that the School Board unlawfully retaliated against one of its teachers for his involvement in a previous unfair labor practice case. This finding of unlawful motivation was based largely on the School Board's failure to comply with a settlement agreement that had resolved the prior unfair labor practice controversy. Since the question of whether "noncompliance with such an agreement could be evidence of unlawful motivation" was one of first impression, the Commission declined to award fees and costs against the School Board, a determination that was upheld on appeal.

216. Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So.2d 1221, 12 FPER  17019 (Fla. 1985), aff'g in part and rev'g in part, 425 So.2d 133, 9 FPER  14098 (Fla. 1st DCA 1982), aff'g 7 FPER  12300 (1981).

The Supreme Court agreed with the First District Court of Appeal and the Commission that the Board of Trustees had failed to bargain in good faith by insisting to impasse upon, and ultimately imposing through legislative body impasse resolution action, a contractual provision eliminating the union's right to impact bargaining. The Supreme Court, though, disapproved of a portion of the remedy ordered by the Commission. The Commission had directed the Board to sign a collective bargaining agreement that contained all items tentatively agreed to by the parties and all impasse items resolved by legislative body action except for the offensive contractual provision. The Supreme Court rejected this remedy because Section 447.203(14), Florida Statutes, bars the Commission from imposing an agreement on the parties. See Case No. 174, this index.

217. Shivers v. School Board of Dade County, 476 So.2d 686 (Fla. 3d DCA 1985), aff'g 11 FPER  16161 (1985).

The Court affirmed, without opinion, the Commission's summary dismissal of Shivers' charge alleging that the School Board violated Section 447.501(1) (a) and (f), Florida Statutes, by not reappointing him as a maintenance employee because of the numerous grievances he had filed. Shivers had unsuccessfully contended that the statute of limitations was tolled during the time he appealed his nonreappointment under the collective bargaining agreement and that therefore the charge was timely in all respects. The Commission also rejected the argument advanced by Shivers that the School Board could not lawfully condition an offer of reinstatement upon Shivers' agreement to withdraw his grievances and waive back pay.

218. City of Hollywood v. PERC and Hollywood Fire Fighters, Local 1375, 476 So.2d 1340, 12 FPER  17020 (Fla. 1st DCA 1985), aff'g in part and rev'g in part, 11 FPER  16001 (1984).

The Court reversed in part and affirmed in part a Commission order dealing with conduct which occurred during a legislative body impasse hearing. The Commission found that certain brief off-the-record discussions between the City Attorney and City Manager created an "appearance of impropriety," constituting an unfair labor practice. The Court disagreed although it left undisturbed the "appearance of impropriety" standard the Commission had applied in evaluating the City's conduct. Noting that there was no evidence the challenged activity prejudiced the unit members and that the union failed to establish the content of the conversations, the Court found there was no appearance of impropriety.

The Court, however, agreed with the Commission that the City committed an unfair labor practice by taking legislative body action to eliminate the unit members' statutory right to appeal arbitration awards pursuant to Chapter 682, Florida Statutes. In upholding the Commission, the Court observed: (1) a subject not brought before the special master may not be considered by the legislative body, and (2) "unless the parties mutually and expressly agree to waive a statutory right, it cannot be lawfully imposed."

219. City of Hallandale v. Hallandale Professional Fire Fighters, Local 2238, 478 So.2d 63, 12 FPER  17021 (Fla. 4th DCA 1985), aff'g 11 FPER  16071 (1985).

The Court affirmed, without opinion, the Commission's clarification of a fire fighter unit to include the newly created rank of captain. The City unsuccessfully argued that the fire captains should have been excluded from the rank-and-file unit because they were either conflict supervisors or managerial/confidential employees. The City also contended that the Commission erred by failing to conduct an opt-in election for the fire captains. The Court awarded appellate attorney's fees against the City.

220. Federation of Public Employees v. PERC and Clerk of the Circuit and County Courts of the Seventeenth Judicial Circuit of Broward County, 478 So.2d 117, 12 FPER  17022 (Fla. 4th DCA 1985), aff'g 10 FPER  15287 (1984). The Court affirmed the Commission's dismissal of the Federation's recognition-acknowledgment petition. The Federation had sought to represent a unit of deputy circuit court clerks. Relying on the Florida Supreme Court's holding in Murphy v. Mack, 358 So.2d 822 (Fla. 1978) (Case No. 45, this index), the Commission concluded that these deputy clerks are not public employees within the meaning of Chapter 447, Part II, Florida Statutes, and it therefore dismissed the Federation's petition. The Court, in a brief opinion, specifically approved the Commission's application of Murphy v. Mack and affirmed the Commission.

221. School Board of Polk County v. Polk Education Association and PERC, 480 So.2d 1360, 12 FPER  17061 (Fla. 1st DCA 1985), aff'g 10 FPER  15054 and 15156 (1984).

The Court affirmed the Commission's refusal to designate as confidential employees the personal secretaries of four area superintendents. The School Board relied upon the Court's holdings in Pensacola Jr. College v. PERC, 400 So.2d 59 (Fla. 1st DCA 1981) and School Board of Palm Beach County v. PERC, 374 So.2d 527 (Fla. 1st DCA 1978), for the proposition that the Court has established a per se confidential exclusion of all personal secretaries to managerial employees.

The Court found these cases inapplicable, and expressly adopted the Commission's narrow interpretation of the confidential employee exclusion set forth in Section 447.203(5), Florida Statutes. This interpretation, known as the "labor nexus test," restricts the confidential exclusion to employees who assist, in a confidential capacity, managerial employees who formulate, determine, and effectuate policies in the field of labor relations, or who regularly have access to confidential information concerning anticipated changes resulting from collective bargaining negotiations.

222. City of Casselberry v. Orange County PBA, 482 So.2d 336, 12 FPER  17062 (Fla. 1986), approving in part and quashing in part, 457 So.2d 1125, 10 FPER  15284 (Fla. 1st DCA 1984), rev'g 9 FPER  14120 (1983).

The Florida Supreme Court held that Section 447.401, Florida Statutes, does not infringe upon a municipality's right to establish a civil service appeal procedure by ordinance. To the extent the ordinance conflicts with a state statute, such as Section 447.401, the statute prevails pursuant to Article VIII, Section 2(b) of the Florida Constitution and Section 447.601, Florida Statutes. The City could not require the exclusion of demotion and discharge issues from the grievance procedure as a condition to entering into an agreement on other subjects. However, the Court found that the facts did not support the First District Court of Appeal's conclusion that the City committed an unfair labor practice. The evidence did not demonstrate that the City's position on grievance-arbitration prevented the parties from reaching agreement on other subjects. See Case No. 207, this index.

223. IBPO, Local 621 v. City of Hollywood, 482 So.2d 361 (Fla. 4th DCA 1986), aff'g Broward County PBA, Inc. v. City of Hollywood, 10 FPER  15294 (1984).

The Court affirmed, without opinion, the Commission's summary dismissal of election objections filed by an incumbent union defeated by a rival organization in a representation election. The Commission had summarily dismissed the incumbent's objections to certain misrepresentations allegedly made by the rival organization during the election campaign because these campaign statements contained no threats of reprisal or promises of benefit. The incumbent had also alleged in its objections that the City discriminated in favor of the rival organization by allowing police officers to adjust their work schedules and to use marked police vehicles to attend a meeting sponsored by the rival. Because this alleged discriminatory conduct did not constitute "a significant impediment to the employees' freedom of choice," the Commission also summarily dismissed this objection.

224. Hillsborough County Aviation Authority v. Hillsborough County Governmental Employees Association, Inc., 482 So.2d 505 (Fla. 2d DCA 1986), rev'g 11 FPER  16102 (1985), rev'd, 522 So.2d 358 (Fla. 1988).

The Court, reversing the Commission, held that the Aviation Authority did not commit an unfair labor practice when it refused to implement certain provisions in two collective bargaining agreements it had entered into with the Hillsborough County PBA and Hillsborough County Governmental Employees Association. The provisions in question conflicted with certain rules of the Hillsborough County Civil Service Board, which was created by special act. When the Aviation Authority requested the Civil Service Board to amend its rules to conform to the agreement, the Board refused.

The Court reasoned that the County did not violate its duty to bargain in good faith, since it followed the Court's earlier decision in Pinellas County PBA v. Hillsborough County Aviation Authority, 347 So.2d 801 (Fla. 2d DCA 1977). In that case, the Court construed Section 447.309(3), Florida Statutes, to require a public employer to only seek an amendment of applicable civil service rules to conform to any conflicting provisions in a collective bargaining agreement. If the Civil Service Board chose not to amend its rules, the employer would not be required to implement the conflicting contractual provisions. See Case No. 252, this index.

225. Florida School for the Deaf and the Blind v. Florida School for the Deaf and the Blind Teachers United, 483 So.2d 58 (Fla. 1st DCA 1986), aff'g 11 FPER  16080 (1985).

The Court upheld the Commission's determination that the Florida Legislature, not the School Board of Trustees, was the legislative body authorized to resolve an impasse between the Board and the union representing the Board's teachers. Consequently the Board committed an unfair labor practice by unilaterally altering the workday and planning time of its academic personnel while purporting to legislatively resolve an impasse pursuant to Section 447.403(4)(d), Florida Statutes. The Court also agreed that the Board had not adduced sufficient evidence to support the defense of exigent circumstances and affirmed an award of costs and attorney's fees for the union.

226. DaCosta v. PERC, 484 So.2d 11 (Fla. 1st DCA 1986), aff'g DaCosta v. Miami Association of Fire Fighters, Local 587, 11 FPER  16007 (1984), on remand from 443 So.2d 1036, 10 FPER  15041 (Fla. 1st DCA 1983).

The Court affirmed, without opinion, the Commission's dismissal of an employee's unfair labor practice charge against an employee organization alleging intimidation and harassment because of the employee's withdrawal from membership in the organization. The Commission affirmed the hearing officer's finding that a fist fight between DaCosta and a union member was initiated by DaCosta and unrelated to union matters. Further the union's posting of a list of nonmembers and the exchanging of insults did not rise to the level of interference, coercion, restraint or discrimination. The Commission also determined that the record was insufficient to show that the employee organization was responsible for late night telephone calls to the employee's home after the list was posted. See Case No. 197, this index.

227. Gadsden Memorial Hospital v. Cheshire, 485 So.2d 832 (Fla. 1st DCA 1986) , aff'g 11 FPER  16132 (1985).

The Court affirmed, without opinion, the Commission's determination that the Hospital had violated Section 447.501(1)(a), Florida Statutes, by discharging Cheshire for presenting a grievance to her superiors on behalf of herself and her fellow shift employees. The hearing officer had found that Cheshire would not have been terminated had her immediate supervisor, acting within the scope of her supervisory authority, not reported Cheshire's alleged insubordination to the Hospital official responsible for Cheshire's discharge. Since the hearing officer had further found that the immediate supervisor would not have reported Cheshire's alleged insubordination had Cheshire not engaged in protected concerted activity, the Commission concluded that Cheshire's discharge was the product of an unlawful motive for which the Hospital was liable.

228. District Board of Trustees of Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 489 So.2d 749 (Fla. 4th DCA 1986), aff'g 11 FPER  16101 (1985).

The Court affirmed, without opinion, the Commission's determination that the Board of Trustees violated Section 447.501(l)(a), Florida Statutes, when the College's president suspended two employees, reprimanded three other employees and issued a letter threatening further discipline for exercising protected rights. The Commission rejected the Board's collateral estoppel defense which was based upon findings of fact and conclusions of law resulting from the employees' appeal of the president's discipline to a substitute Board of Trustees. The Commission held it was not bound by the findings of a party-respondent and that the substitute Board's conclusions concerning the employees' alleged unethical and unprofessional behavior was not determinative of whether an unfair labor practice had occurred.

On the merits the Commission held that the dissemination of the results of an employee survey that was highly critical of the Board and the president, to certain State officials, including the Governor and the Commissioner of Education, constituted concerted activity protected by Section 447.301(3), Florida Statutes. The Commission also concluded that statements made in the survey were not defamatory and thus did not lose their protection under Section 447.301(3). The Commission declined to award costs or attorney's fees.

229. Metropolitan Dade County v. Bacchus, 490 So.2d 1266 (Fla. 3d DCA 1986), aff'g 11 FPER  16250 (1985), reh'g denied, 12 FPER  17039 (1985).

The Court affirmed, without opinion, the Commission's decision that the County unlawfully interfered with an employee's right to representation. A County agent had continued a investigatory interview with an employee without the presence of union representation after the employee had requested representation. On reconsideration, the Commission declined to "expressly define the circumstances of waiver of representation" beyond the facts of the instant case.

230. Leon County PBA, Inc. v. City of Tallahassee, 491 So.2d 589 (Fla. 1st DCA 1986), aff'g 11 FPER  16235 (1985).

The Court affirmed the Commission's determination that nonsworn police department communications officers and their supervisors were not properly included in a bargaining unit of sworn employees based on a full analysis of all of the governing statutory factors. In making its determination, the Commission receded from recent precedent placing excessive emphasis on the "interdependence of jobs" component of the "community of interest" test without giving adequate consideration to the other statutory criteria for defining bargaining units. The Court, in upholding the Commission, noted that the "community of interest" determination made by the Commission was a "mixed question of fact and law infused by policy considerations and agency expertise in the application of statutory standards" and that therefore the Commission was not bound by the hearing officer's recommendation on this issue.

231. School Board of Levy County v. Levy County Education Association, 492 So.2d 1140 (Fla. 1st DCA 1986), aff'g 11 FPER  16096 (1985).

The Court affirmed the Commission's decision that supplemental pay for coaching duties performed by teachers was a "wage" and therefore a mandatory subject of collective bargaining. The Court also held that the Commission did not err in receding from its prior decision in Martin County Education Association v. School Board of Martin County, 5 FPER  10199 (1979), aff'd, 380 So.2d 582 (Fla. 1st DCA 1980).

232. FOP, Miami Lodge 20 v. City of Miami, 492 So.2d 1122 (Fla. 3d DCA 1986) rev'g 11 FPER  16128 (1985), rev'd, 511 So.2d 549 (Fla. 1987).

The Court reversed the Commission's deferral of an unfair labor practice charge to an arbitrator and the subsequent approval of the arbitrator's decision. The Court reasoned that Chapter 447, Part II, Florida Statutes, does not authorize deferral to arbitration "notwithstanding [the Commission's] alleged adoption of and reliance of the pronouncements of the National Labor Relations Board." In an unpublished corrected order, the Court certified the issue to the Florida Supreme Court which reversed the district court of appeals decision. See Case No. 246, this index.

233. City of Gainesville v. Alachua County PBA, Inc., 493 So.2d 46 (Fla. 1st DCA 1986), aff'g in part. vacating in part. and remanding, 11 FPER  16029 (1985).

The Court affirmed the Commission's determination that the City's police lieutenants were neither managerial nor confidential employees and that they were properly included in a supervisory bargaining unit of police personnel. The Court, however, reversed the Commission's decision to include two police sergeants in this unit, finding that this decision by the Commission was not supported by competent substantial evidence. The case was remanded for the taking of additional evidence on the issue of the appropriateness of the two police sergeants' inclusion in the unit.

234. City of North Port v. Southwest Florida PBA, Inc., 497 So.2d 246 (Fla. 2d DCA 1986), aff'g 11 FPER  16291 (1985).

The Court affirmed, without opinion, the Commission's determination that nonsworn telecommunications officers and senior telecommunications operators (dispatchers) should be afforded the opportunity to "opt-in" to an existing unit of sworn police officers. In determining that these dispatchers shared a community of interest with the City's sworn police officers, the Commission reiterated that the facts of each case must be evaluated in light of all the criteria of Section 447.307(4) to determine whether the questioned classifications share a distinct community of interest. The Commission also rejected exceptions by the City in which it contended that the employees of the existing unit should be allowed to vote on the inclusion of nonsworn employees in the unit and that police officers are "professional employees" as defined in Section 447.203(13).

235. City of Sarasota v. Southwest Florida PBA, Inc., 497 So.2d 246 (Fla. 2d DCA 1986), aff'g 11 FPER  16293 (1985).

The Court affirmed, without opinion, the Commission's determination that the City's dispatchers, senior dispatchers, communications supervisors, community service aides (CSAs), and community service aide supervisors shared a sufficient community of interest with sworn police officers in an existing unit to afford the employees an opportunity to "opt-in" by election to the existing unit. The Commission rejected the argument by the City that res judicata or estoppel by judgment barred litigation of the unit appropriateness issue as to CSAs due to an earlier failed attempt to include them in the sworn unit through the filing of a unit clarification petition. The Commission also rejected arguments that members of the existing unit should be allowed to vote on inclusion of nonsworn employees in the unit and that police officers should be considered "professional employees" as defined in Section 447.203(13).

236. ATU, Local 1593 v. IBF&O, Local 1220, 497 So.2d 665 (Fla. 1st DCA 1986), aff'g 11 FPER  16236 (1985).

The Court affirmed a Commission order directing a representation election among 2 groups of merged transit authority employees. The dispute concerned the merger of the transit operations of the City of St. Petersburg, whose employees were represented by IBF&O, and the Pinellas Suncoast Transit Authority (PSTA), whose employees were represented by ATU. The Commission determined that two separate bargaining units, one consisting of former City employees and the other, composed of PSTA employees who had been with the PSTA prior to the merger of operations, were inappropriate. Rather, it found that the appropriate unit, for purposes of collective bargaining, was a new county-wide unit consisting of all of PSTA's blue-collar employees, including those who had been employed by the City. The Commission also concluded the "contract bar rule" of Section 447.307(3)(d), Florida Statutes, was not inapplicable because the unit of PSTA employees represented by the ATU no longer was appropriate. The Court agreed with the Commission that the ATU-represented unit was no longer appropriate and that therefore the ATU could not rely on contract bar principles. In so doing, the Court stated the Commission should be given "substantial deference in its application of the unit appropriateness criteria set forth in Section 447.307(4)." The Court also found that ATU had been validly joined as a party to these proceedings and that the Commission's resolution of this case did not constitute the improper promulgation of a rule.

237. United Teachers of Dade v. Dade County School Board, 500 So.2d 508 (Fla. 1986).

The Florida Supreme Court, by a 5-2 margin, upheld the constitu- tionality of the "Master Teacher Program" concluding that the program did not establish a wage that had to be negotiated. Therefore the legislative imposition of the program, without providing for negotiations between local school boards and unions certified to represent teachers, did not abridge the constitutional right of public employees to engage in collective bargaining.

The Court disagreed with the trial court's conclusion that the program is constitutional because the Florida Legislature is not a party to the collective bargaining process. Such an analysis would incorrectly ignore the impact of legislative enactments on constitutional collective bargaining rights. Chapter 447, Part II, does not necessarily define the parameters of Article I, Section 6.

238. ATU, Local 1596 v. Orange-Seminole-Osceola Transportation Authority, 500 So.2d 1352 (Fla. 1st DCA 1987), aff'g 12 FPER  17134 (1986).

The Court affirmed, without opinion, the Commission's decision that the Orange-Seminole-Osceola Transportation Authority did not unlawfully refuse to bargain collectively with Local 1596 by allegedly: (1) failing to provide Local 1596 with an adequate opportunity to explain its bargaining positions on impasse items at the legislative hearings conducted pursuant to Section 447.403, (2) failing to deduct dues for probationary employees, (3) unilaterally subcontracting routes in its southwest district, or (4) unilaterally subcontracting landscaping and janitorial services. The Commission ruled that Local 1596 had not made a proper demand for dues deductions and had waived its opportunity to negotiate over subcontracting. However, the Commission further found that the Authority failed to bargain in good faith with Local 1596 by insisting upon a contractual provision designating a private company as the employer of bargaining unit employees and by unilaterally altering its absenteeism policy without affording Local 1596 prior notice and an opportunity to bargain. Local 1596 was awarded attorney fees and costs for those portions of the charge upon which it prevailed. The Authority, though, was not awarded fees and costs for those portions on which it prevailed since the charges in question were not frivolous, unreasonable, or groundless.

239. Town of Pembroke Park v. Florida State Lodge, FOP, 501 So.2d 1294 (Fla. 4th DCA 1987), aff'g and remanding, 10 FPER  15072 (1984).

The Court affirmed the Commission's order awarding back pay to police officers and determining that the officers had a duty to mitigate their damages. The Court affirmed the Commission's determination that the officers had sufficiently attempted to mitigate. The Court also affirmed the prospective application of a new mitigation standard, where the Commission had not previously advised the public of its intent to use the more stringent standard. In addition, the Court approved the Commission's calculation of interest at 12 percent beginning at the midpoint of the back pay period and the award of attorney's fees to the police union as the prevailing party. The Court remanded the case to the Commission for correction of errors contained in the calculation of the amount of back pay due three officers. See Case Nos. 173, 201, 206, this index.

240. City of Miramar v. Broward County PBA, 505 So.2d 8 (Fla. 5th DCA 1987), aff'g 12 FPER  17147 (1986).

The Court affirmed the Commission's determination that the City's two police captains were not managerial employees. The Commission found that captains did not participate in formulation of departmental policy but merely implemented that policy. However, the Commission designated a lieutenant who was a member of the City's collective bargaining negotiating team as managerial. The Court compared this case with City of Jacksonville v. Jacksonville Association of Fire Fighters, IAFF, Local No. 1834, 365 So.2d 1098 (Fla. 1st DCA 1979).

241. Florida State Lodge, FOP v. City of Hialeah, 815 F.2d 631 (11th Cir. 1987).

The United States Court of Appeals, Eleventh Circuit, affirmed the district court's determination that the impasse resolution provisions contained in Section 447.403(4), were constitutional. The union had alleged, in a suit filed under Section 42 USC 1983, that it was not afforded due process because the City's role as an interested party in the collective bargaining negotiations prevented a meaningful hearing before the City Council during the impasse proceeding. The Court concluded that the statutory procedure for resolving an impasse was not unconstitutional on its face or as applied, because the union was afforded a meaningful opportunity to be heard and the City Council had the benefit of a Special Master's recommendations. The union had also alleged that the City's reduction of the payout rate for sick leave and the accrual rate for annual leave benefits for new employees as recommended by the Special Master was a substantive due process violation as well as an unconstitutional impairment of the obligation of contract. Reasoning that future payments for benefits are not protected property interests, and that as-yet-unhired employees were without a property interest in as-yet-unearned annual leave, the Court denied this claim as well. The appellate court affirmed the granting of the City's motion for summary judgment and the dismissal of the union's case with prejudice.

242. Teamsters Local 444 v. Pasco County Board of County Commissioners, 505 So.2d 541 (Fla. 1st DCA 1987), aff'g 12 FPER  17041 (1985).

The Court affirmed the Commission's dismissal of an unfair labor charge. The union had alleged that the County (1) failed to bargain in good faith by failing to meet at reasonable times and places with union representatives, (2) placed unreasonable restrictions on the union and its bargaining team as a prerequisite to meeting, (3) failed to discuss bargainable issues, (4) negotiating directly with employees rather than with the union, and (5) engaged in a pattern and practice of surface bargaining without an intent to reach a common accord or a sincere desire to resolve differences. After a detailed evaluation of the record, the Commission reversed the hearing officer's decision and concluded that competent substantial evidence did not exist to support that the withholding of wage and merit pay increases was intended to discourage union membership. The Commission then concluded that the County did not fail to bargain in good faith and dismissed the petition. The Court, in accord with Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 425 So.2d 133 (Fla. 1st DCA 1983), app'd in part. disapp'd in part, 475 So.2d 1221 (Fla. 1985), held that this conclusion was a policy decision which PERC was well-suited to make.

243. City of New Port Richev v. Hillsborough County PBA, Inc., 505 So.2d 1096, (Fla. 1st DCA 1987), rev'g 12 FPER  17040 (1985).

The Court reversed the Commission's determination that a unilateral reduction in the City's percentage of contribution to the police pension fund was an unfair labor practice. The Court reasoned that the City was not required to bargain with the union before it implemented the reduction, because the reduction had no impact on the employees' pension benefits or required contributions. The Court distinguished this case from the decision in School Board of Indian River County v. Indian River County Education Association, 373 So.2d 412 (Fla. 4th DCA 1979), on the grounds that here no change occurred which affected bargaining unit employees.

244. Florida PBA, Inc. v. City of Jacksonville and PERC, No. BP-336 (Fla. 1st DCA May 28, 1987), aff'g 12 FPER  17313 (1986).

The Court affirmed, without opinion, the Commission's determination that the City had not committed am unfair labor practice when it denied access to an upstairs nonpublic hallway to employee representatives of a rival union. The City had allowed the certified bargaining agent access to the hallway for functions attendant to its status as certified bargaining agent but not for purely organizational purposes. The Commission stated that "for purely organizational purposes, a rival union and an incumbent are similarly situated irrespective of whether a petition has been filed. It is only with respect to access related to its functions as the exclusive bargaining agent that am incumbent union remains unique."

245. City of Miramar v. FOP, Florida State Lodge, 509 So.2d 321 (Fla. 4th DCA 1987), aff'g 12 FPER  17332 (1986).

The Court affirmed, without opinion, the Commission's determination that the City had committed an unfair labor practice when it issued a memorandum advising the union that in the event the union rejected the Special Master's impasse recommendation, the City's legislative body would impose less favorable terms. The memorandum was issued the day before the union rejected the Special Master's decision. The City thus acted in derogation of its statutory duty upon impasse to consider recommendations from its chief executive officer and from the union, as well as to conduct a public hearing, before resolving disputed impasse issue.

246. City of Miami and PERC v. FOP, Miami Lodge 20, 511 So.2d 549 (Fla. 1987), rev'g 492 So.2d 1122 (Fla. 3d DCA), rev'g 11 FPER  16128 (1985).

Upon review of FOP, Miami Lodge 20 v. City of Miami, 492 So.2d 1122 (Fla. 3d DCA 1986), the Supreme Court of Florida quashed the lower court decision and held that PERC does have authority, under Chapter 447, Part II, Florida Statutes, to defer unfair labor practice charges to arbitration, and to give final and binding effect to the arbitrator's contract interpretation. In a unanimous decision the Court held that the "policy of deferral represents a reasonable method for PERC to give effect to its statutory duties", particularly Section 447.401 which requires a grievance procedure that culminates in final and binding arbitration. The Court further found that in this case, PERC's decision to defer was appropriate and that PERC's final order was supported by competent, substantial evidence. The Court noted that the Commission had adopted a rule on deferral. Fla. Admin. Code 38D-21.0l1.

247. School Board of Lee County v. Lee County School Board Employees, Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987), rev'g 12 FPER  17331 (1986).

The Court reversed the Commission's determination that a school principal had violated Section 447.501(l)(a), Florida Statutes, by directing a cafeteria worker to stop discussing work problems with coworkers. The Court found that PERC applied an incorrect evidentiary standard in finding a violation of Section 447.501(1)(a), Florida Statutes (1985). The applied standard of "reasonable tendency to interfere" was too broad, as this would allow an unfair labor practice based on the employee's subjective reaction to an employer's action and therefore restrict an employer's otherwise legitimate conduct and rights. The Court stated that the correct standard requires the employee to show that the otherwise protected activity was a substantial or motivating factor in the employer's decision or action which constituted the alleged violation. The Court reversed the order and remanded the matter for further consideration. On remand, the Commission found a violation after applying the test mandated by the court. See 14 FPER  19071 (1988).

248. School District of Lee County v PERC and Support Personnel Association of Lee County, 513 So.2d 1286 (Fla. 1st DCA 1987), aff'g and rev'g 11 FPER  16231 (1985).

The Court reversed the Commission's determination that the School Board had violated Section 447.501(1) (a), Florida Statutes, by prohibiting distribution of organizational literature during monwork time and in nonwork areas, and by removing literature of rival union from the general purpose employee bulletin board. The Court held that Section 447.509 prohibits distribution of literature in working areas at all times and distribution in mon-work area during working hours.

Further, the limitation of the use of the bulletin board was reasonable. Despite this, the Court ruled that access to some bulletin board was appropriate. Under Section 447.509, however, some of the Board's restrictions were proper as this section prohibits distribution of literature in working areas at all times and distribution in nonwork areas during working hours. The Court therefore reversed PERC's order and remanded the cause for further consideration and entry of a modified order by PERC.

249. Weaver v. Leon Classroom Teachers Association, 515 So.2d 987 (Fla. 1st DCA 1987), aff'g 12 FPER  17339.

The Court affirmed, without opinion, the Commission's determination that the LCTA (Union) did not violate it's duty of fair representation. The Commission dismissed the employee's charge, that the Union violated its duty of fair representation by accepting an inadequate settlement, because the evidence presented was insufficient to show that the settlement was reached in bad faith, or was arbitrary or discriminatory.

250. Florida Public Employees Council 79, AFSCME v. Martin County Property Appraiser, 521 So.2d 243 (Fla. 1st DCA 1988), aff'g 13 FPER  18126 (1987).

The Court affirmed the Commission's determination that employees of the county property appraiser are appointed deputies of an elected constitutional officer and therefore, are not "public employees" within the meaning of the act. Under the Supreme Court decision in Murphy v. Mack, 358 So.2d 822 (Fla. 1978) deputies are appointed and invested with the same sovereign power. "By virtue of Section 193.024, Florida Statutes, the property appraiser is empowered to appoint deputies to act on his behalf his employees are for that purpose, his alter ego."

251. Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So.2d 358 (Fla. 1988), aff'g and rev'g 482 So.2d 505 (Fla. 2d DCA 1986), rev'g 11 FPER  16102 (1985).

The Florida Supreme Court, in a five to two decision, held that "a public employer must implement a ratified collective bargaining agreement ... despite the fact that such implementation may conflict with applicable Civil Service Board Rules." In reversing the Second District Court of Appeal's decision that reversed the Commission determination that the County had an obligation to implement such agreements, the Court affirmed that portion of the lower decision that the Authority should not be held to have committed an unfair labor practice because the existing law in the second district validated the position taken by the authority, and therefore held the Commission's order prospective. In reaching its conclusion, the Court determined that Section 447.309(3), Florida Statutes (1987), is unconstitutional as it applies to civil service boards in that the section effectively gives civil service boards veto authority over collective bargaining agreements, thereby abridging constitutional rights.

The two dissenters labeled the majority decision as "a death knell for civil service Systems," and criticized the majority for failing to give adequate consideration to Article III, Section 14, of the Florida Constitution which authorizes the creation of local civil service Systems.

252. Sanitation Employees Association v. Metropolitan Dade County, 526 So.2d 128 (Fla. 3d DCA 1988), rev'g 13 FPER  18099 (1987), appeal filed (Fla. July 27, 1988).

The Court reversed the Commission's determination that, where a union discloses and cures a defective registration with adequate notice to employees prior to an election, dismissal of the representation petition is appropriate. Although other DCA's have held to the contrary, the Court determined that the legislative purpose underlying the registration requirements is fully satisfied when a deficiency is cured with adequate notice to employees before a representation election. Accordingly, the Court reversed the Commission's order and remanded the cause with directions to accept the union's corrected registration certificate.

253. City of Winter Park v. Winter Park Professional Fire Fighters, Local 1598, 529 So.2d 1215 (Fla. 5th DCA 1988), rev'g 13 FPER  18222 (1981), pet. for review denied No. 73,100 (Fla. Feb. 21, 1989).

The Court reversed the Commission's order defining a supervisory unit of firefighting employees and held that battalion chiefs were managerial employees. The Court based its decision on the battalion chief's role in policy formation, employee relations, personnel administration and contract administration.

254. City of Miami v. FOP, Miami Lodge 20, 14 FLW 299 (Fla. 3d DCA Jan. 31, 1989), aff'g 12 FPER  17029 (1985), reh'g granted, (Fla. 3d DCA April 13, 1989).

The Court affirmed the Commission's determination that compulsory drug testing was a term and condition of employment and that the City's unilateral imposition of such testing without bargaining constituted an unfair labor practice. The Court noted that Florida courts have not used a balancing test to determine whether an item is a mandatory subject of bargaining, that drug testing is not an "entrepreneurial concern" and that drug testing does not fall within the definition of management rights in Section 447.209. Because such testing is a mandatory subject in the private sector, Article I, Section 6 of the Florida Constitution mandates that it be negotiable in the Florida public sector.

The Court also affirmed the determination that the FOP did not waive by contract its right to negotiate over drug testing. The contractual provision at issue did not meet the clear and unmistakable test.

255. City of Miami v. AFSCME, Council 79, No. 88-667 (Fla. 3d DCA Feb. 7, 1989), aff'g 14 FPER  19074 (1988).

The Court affirmed the portion of the Commission's order assessing attorney fees and costs against the City for certain acts of discrimination based upon union activities committed by agents of the City.