APPELLATE COURT DECISIONS FOR PERC CASES
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 retir
For citation please see the Reporter
for this jurisdiction.
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