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 retirement is a
mandatory subject of bargaining in the private sector and because
there was no demonstrated compelling state interest to support
the exclusion of retirement as a mandatory subject of bargaining.
Upon review, the Florida Supreme Court affirmed the lower court
and rejected the argument that Article X, Section 14 of the
Florida Constitution, requiring public retirement benefits to be
funded on a sound actuarial basis, prohibits collective
bargaining concerning retirement. The Court noted that public
employers are not required to agree to any retirement proposal
that would render the funding of retirement benefits actuarially
unsound.
149. City of Winter Park v. LIUNA, Local 517, 409 So.2d 45, 8
FPER 13151 (Fla. 5th DCA 1981), aff'g 7 FPER 12140 (1981),
cert. denied, 417 So.2d 328 (Fla. 1982).
The Court affirmed a decision in which the Commission concluded
that the City unlawfully refused to bargain. The Court rejected
the City's contention that the unfair labor practice charge was
time-barred because, although a prior refusal to bargain occurred
outside the six-month statute of limitations, a subsequent
refusal occurred within the statutory time period. Citing City
of Ocala v. Marion County PBA, 392 So.2d 26 (Fla. 1st DCA 1980),
the Court held that an employer may not refuse to bargain with a
certified bargaining agent because of its good faith doubt as to
the agent's continuing majority status.
150. City of Winter Haven v. Hillsborough County PBA, Inc., 411
So.2d 386, 8 FPER 13029 (Fla. 1st DCA 1981), aff'g 7 FPER
12129 (1981).
The Court affirmed, without opinion, a decision in which the
Commission dismissed the City's objection to a representation
election and also dismissed a related unfair labor practice
charge. The Commission determined that the PBA's policy of
providing certain benefits only to dues-paying members
constituted neither a breach of the union's duty of fair
representation nor interference with employees' unfettered choice
of a bargaining representative.
151. Dade Teachers' Association v. United Teachers of Dade, Local
1974, 412 So.2d 474, 8 FPER 13134 (Fla. 1st DCA 1982), aff'g 7
FPER 12142 (1981).
The Court affirmed, without opinion, a decision in which the
Commission summarily dismissed an unfair labor practice charge
which alleged that a union steward sent a student to distribute
union materials to union members during the student's class time.
The Commission reasoned that such activity by the union steward,
however ill-advised, did not constitute "instigating or
advocating support" for an employee organization's activities and
was not prohibited by Section 447.501(2)(f), Florida Statutes,
because there was no evidence that the student was made aware of
the nature of the materials or that he was asked to support the
message he distributed.
152. Pinellas County PBA, Inc. v. PERC, 412 So.2d 479, 8 FPER
13121 (Fla. 1st DCA 1982), aff'g Pinellas County PBA, Inc. v.
City of Dunedin, 7 FPER 12121 (1981).
The Court affirmed, without opinion, a decision in which the
Commission dismissed a unit clarification petition. The
certified bargaining agent sought to modify a previously approved
unit of patrolmen and sergeants to include communications clerks.
The Commission concluded that the record did not demonstrate that
the position was newly created or previously excluded through
mistake or inadvertence, and that a recent change in Commission
policy allowing the inclusion of sworn and nonsworn police
personnel in the same bargaining unit did not necessitate
inclusion of the communications clerks because the originally
approved bargaining unit remained appropriate.
153. Paschal v. PERC, 666 F.2d 1381 (11th Cir. 1982), cert.
denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982).
The federal appellate court affirmed a jury verdict against the
plaintiff's claims that he was discharged in violation of the
United States Constitution. Paschal contended that his forced
resignation violated the First Amendment because his protected
opposition to certain employment policies was the actual reason
for his termination. The jury found that conduct protected by
the First Amendment was not a substantial or motivating factor in
Paschal's termination. Claims against the Commission were
dismissed before trial.
154. City of Lake Wales v. PERC and Hillsborough County PBA,
Inc., 412 So.2d 482, 8 FPER 13127 (Fla. 2d DCA 1982), denying
review of 7 FPER 12246 (1981).
The Court affirmed, without opinion, a Commission decision where
the only issue on appeal was the Commission's standard for
awarding attorney's fees. The Commission had awarded attorney's
fees to the union, the charging party in the case. The City
argued that an award was inappropriate because the case involved
a novel legal issue. The City also argued that the amount of the
fee should have been limited to a pro rata share of the in-house
union attorney's salary, and should not have been determined with
reference to the fair market hourly rate charged by attorneys in
private practice. The Court dismissed the City's appeal and
awarded appellate costs and attorney's fees to the union's
counsel.
155. Military Park Fire Control Tax District No. 4 v. DeMarois,
407 So.2d 1020, 8 FPER 13122 (Fla. 4th DCA 1981).
During the pendency of an appeal, DeMarois filed a motion to
expedite the appeal pursuant to Section 447.504(5), Florida
Statutes, which provides that appeals from Commission decisions
"shall take precedence over all other civil matters except prior
matters of the same character." The Court declared this
provision unconstitutional, reasoning that a rule of priority in
the Court's processing of its cases is a matter of procedure, and
matters of practice and procedure are solely within the province
of the Supreme Court of Florida.
156. Military Park Fire Control Tax District No. 4 v. DeMarois,
411 So.2d 944 (Fla. 4th DCA 1982), aff'g 7 FPER 12065 (1981).
The Court affirmed a decision in which the Commission concluded
that the District had unlawfully terminated two fire fighters
because of their organizational activities on behalf of the
union. The Commission further determined that the District
unlawfully interrogated employees regarding their union
sentiments and threatened employees who were engaged in protected
concerted activity on behalf of the union. The Court affirmed
the Commission's award of attorney's fees, awarded appellate
attorney's fees and costs, and remanded the case to the
Commission for determination of the amount of fees and costs.
See Case No. 200, this index.
157. Rawlins v. School Board of Palm Beach County, B FPER 13244
(S.D. Fla. 1982).
In the United States District Court for the Southern District of
Florida, a class action suit was filed against the Commission,
the Palm Beach County School Board, and its superintendent on
behalf of all personal secretaries to school principals. The
plaintiffs sought declaratory and injunctive relief based upon
allegations that the Commission's designation of all secretaries
to school principals as confidential employees violated the
secretaries' right to due process and equal protection under the
Fifth and Fourteenth Amendments to the United States
Constitution. The Court granted the Commission's motion to
dismiss because suing the Commission under 42 U.S.C. Section 1983
was tantamount to suing the State of Florida, and thus immunity
from such suits attached to the Commission under the Eleventh
Amendment to the United States Constitution.
158. Childers v. PERC and City of Hollywood, No. 81-2049 (Fla.
4th DCA March 3, 1982).
The Court granted the City's motion to dismiss the appeal and
denied the City's motion for an award of attorney's fees. The
appeal arose from a strike situation in which the Commission
determined that certain police officers participated in a strike.
On appeal, the officers sought relief from the penalty imposed by
the Commission: suspension from duty for three months without
pay. See In re City of Hollywood and NAGE, 7 FPER 12416
(1981). In its motion to dismiss, the City contended that the
penalty was clearly within the range of penalties permitted by
Section 447.507(5), Florida Statutes. The Court granted the
motion without discussion.
159. Metropolitan Dade County v. Government Supervisors
Association, 413 So.2d 893, 8 FPER 13128 (Fla. 3d DCA 1982),
denying review of 7 FPER 12460 (1981).
The County sought pre-election review of the method by which the
Commission determined that the statutory thirty percent showing
of interest requirement had been met. The Commission was granted
status as a party respondent in the appellate proceeding. The
Court initially issued a stay of the representation election,
based upon the County's argument that it would be irreparably
harmed by proceeding to an election under the circumstances.
Following the Commission's argument that a delay in the election
would diminish employee rights and that the County was adequately
protected by its right to appeal the final certification order,
the Court vacated the stay of the election and dismissed the
appeal from non-final administrative action.
160. City of Orlando v. Orlando Professional Fire Fighters, Local
1365, 412 So.2d 406 (Fla. 5th DCA 1982), denying review of 7 FPER
12372 (1981).
This appeal was initially filed prior to a representation
election. In the election, employees voted in favor of "no
organization," and the Commission subsequently dismissed the
representation petition. The Commission then filed a motion to
dismiss this appeal. In a lengthy order, the Court concluded
that an order designating certain employees as managerial or
confidential employees is not "final agency action" for which an
appeal will lie and granted the motion to dismiss. The Court
reasoned that because employees defeated the representation bid
by the union, the City was not aggrieved by the Commission's
non-final order on managerial and confidential designations. The
Court stated that if the Commission relies on its managerial or
confidential determinations in any future representation
proceedings, the City may seek review at that time. See Case No.
141, this index.
161. City of Lake Worth v. Palm Beach County PBA, 413 So.2d 465,
8 FPER 13276 (Fla. 4th DCA 1982), aff'g 7 FPER 12069 (1981).
The Court affirmed a decision in which the Commission determined
that the City Violated its duty to bargain in good faith by
refusing at the conclusion of statutory impasse resolution
proceedings to reduce the complete agreement to writing, to
execute it, and to provide an opportunity for union ratification.
The Commission further determined that the City's insistence upon
maintaining the terms of the existing agreement from the
inception of negotiations through impasse resolution, coupled
with additional evidence of unwillingness to enter into a
successor agreement, constituted a totality of circumstances
demonstrating lack of good faith in bargaining and interference
with the protected rights of employees. The Court also affirmed
the Commission's determination that the union's refusal to
commence negotiations for the next year until the complete
agreement was finalized was not an unfair labor practice. The
Court affirmed the Commission's award of attorney's fees, citing
IBPAT, Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).
162. Brevard County PBA v. Brevard County Sheriff's Department,
416 So.2d 20, 8 FPER 13329 (Fla. 1st DCA 1982), aff'g 7 FPER
12343 (1981).
The Court affirmed a decision in which the Commission applied the
settled legal conclusion that absent special legislation, deputy
sheriffs are not "employees" within the meaning of Chapter 447,
Part II, Florida Statutes. The union contended that the decision
Violated the Florida Constitution and the equal protection clause
of the United States Constitution. The Court rejected the
argument, stating that it could not overrule the Florida Supreme
Court's determination in Murphy v. Mack, 358 So.2d 822 (Fla.
1978), that deputies are "officers," not public employees.
163. Florida PBA, Inc. v. PERC, State of Florida, and Florida
State Employees Council 79, AFSCME, 418 So.2d 1282 (Fla. 1st DCA
1982), aff'g 7 FPER 12430 (1981).
The Court affirmed, without opinion, decision in which the
Commission refused the PBA's request to sever certain state
correctional officer positions from the existing statewide human
services bargaining unit represented by AFSCME. The PBA sought
inclusion of these positions in the existing statewide law
enforcement unit, or in a separate bargaining unit for
correctional officers. The Commission reasoned that the PBA
failed to demonstrate that the bargaining unit which currently
included correctional officers was unworkable or otherwise
inappropriate within the meaning of Section 443.307(4)(f)(5),
Florida Statutes.
164. Heinrich v. Powers, No. 82-1294 (Fla. 2d DCA July 19,
1982) (unpublished order), dismissing appeal from Hillsborough
County PBA, Inc. v. Hillsborough County Board of Criminal
Justice, 8 FPER (13051 (1982).
The Court dismissed an appeal from a decision in which the
Commission defined a bargaining unit of correctional officers
employed by the Hillsborough County Board of Criminal Justice.
The Commission had dismissed the representation petition after
employees voted in favor of "no organization." In this appeal,
the Sheriff of Hillsborough County sought review of the
bargaining unit determination despite the fact that the
underlying representation case had already been dismissed by the
Commission.
165. United Faculty of Florida, Local 1847 v. Board of Regents,
417 So.2d 1055, 8 FPER 13406 (Fla. 1st DCA 1982), rev'g 7 FPER
12409 (1981).
This appeal was taken from a Commission order vacating two
certifications for bargaining units which included graduate
assistants. The Commission order was entered pursuant to Section
447.203(3)(i), Florida Statutes, a recent legislative amendment
exempting graduate assistants from the statutory definition of
"public employee." The Court determined that the statutory
amendment was unconstitutional, reversed the Commission's order
under review, and ordered the Commission to reinstate the
certifications at issue.
In a lengthy opinion, the Court discussed the prior history of
attempts to organize graduate assistants for purposes of
collective bargaining, and also discussed in detail the
legislative history of the statutory amendment at issue. The
Court stated that the right to bargain collectively provided for
in Article I, Section 6 of the Florida Constitution can be
abridged only "where there is a strong showing of a rational
basis for abridgment which is justified by a compelling state
interest," citing City of Tallahassee v. PERC, 393 So.2d 1147
(Fla. 1st DCA 1981).
The Court discussed the situation of graduate assistants as both
students and employees and concluded: "The primary beneficiaries
of the services performed by the graduate assistants are the
faculty members whom they assist, and the university itself,
while the graduate assistants are beneficiaries of a paycheck.
This looks like employment." The Board of Regents argued that
collective bargaining for graduate assistants was unwise because
it would interfere with quality education, because costs would be
increased, and because the employment of graduate assistants is
of brief duration. The Court rejected these asserted state
interests as not sufficiently compelling to justify denying
collective bargaining rights to graduate assistants.
The Court expressly declined to reach the question of whether
other groups listed in Section 447.203(3)(i), may be
constitutionally excluded from the right to bargain collectively.
166. City of Bradenton v. PERC, 418 So.2d 1287 (Fla. 2d DCA
1982), aff'g Sarasota County PBA, Inc. v. City of Bradenton, 7
FPER 12441 (1981).
The Court affirmed, without opinion, a decision in which the
Commission denied the City's motion for reconsideration of a
certification order. The Commission had certified the Sarasota
County PBA as the exclusive collective bargaining agent following
voluntary recognition of the PBA by the City. Subsequently, the
City moved the Commission to reconsider the certification on
several grounds, including the City's contention that it was not
satisfied that the PBA had the support of a majority of
bargaining unit members at the time of certification. The
Commission declined to revoke the certification based upon mere
assertions of lack of majority status when the City's recognition
had not been withdrawn prior to certification.
167. City of Umatilla v. PERC, 422 So.2d 905, 9 FPER 14088
(Fla. 5th DCA 1982), rev'g Volusia County PBA, Inc. v. City of
Umatilla, 7 FPER 12346 (1981), cert. denied, 430 So.2d 452
(Fla. 1983).
The Court reversed a decision in which the Commission concluded
that the City had committed an unfair labor practice by
discriminatorily terminating one of the City's police officers.
In its order, the Commission rejected the hearing officer's
ultimate findings of fact regarding the motivation for the
discharge after determining that the findings were not supported
by competent substantial evidence. The Court characterized the
principal dispute as whether the officer was terminated because
he was insubordinate or because of his union activities.
Reasoning that the question of motive and intent are not unusual,
and that the findings of the trier of fact cannot be overturned
if there is competent substantial evidence to support them, the
Court concluded that the Commission committed reversible error
when it rejected the hearing officer's findings.
168. School Board of Dade County v. Dade Teachers Association,
421 So.2d 645, 9 FPER 14065 (Fla. 1st DCA 1982), aff'g 7 FPER
12398 (1981).
The Court affirmed a decision in which the Commission found that
the United Teachers of Dade (UTD), the incumbent union, and the
School Board committed unfair labor practices against the Dade
Teachers Association (DTA). The dispute arose when the DTA,
seeking to oust the incumbent union as the certified bargaining
agent, began soliciting support in school parking lots and
posting literature on school bulletin boards. UTD
representatives removed DTA literature from the school bulletin
boards, and the School Board prohibited DTA teachers from
soliciting support in parking lots other than at their assigned
schools.
The Court noted that the Commission is entitled to considerable
deference because of its expertise in dealing with labor
problems. The Court approved the Commission policy that
no-access and no-solicitation rules which discriminate against
one union in favor of another are presumptively invalid. The
burden was thus shifted to the School Board to demonstrate that
the restrictions imposed upon employee organization activities in
this case were justified.
The School Board contended that a restrictive access policy was
justified by the "extraordinary circumstance" of the possibility
of increased criminal activity on school campuses from outsiders
entering school property. The Court found that there was nothing
in the record to support this bare allegation or to link this
allegation to the activities at issue. Regarding the bulletin
board question, the Court stated that such a restriction
"constitutes censorship in its most direct form." The Court
affirmed the Commission in all respects, with Judge Barkdull
concurring on the bulletin board issue but dissenting on the
parking lot issue.
169. Galbreath v. School Board of Broward County, 424 So.2d 837,
9 FPER , 14095 (Fla. 4th DCA 1983), aff'g 7 FPER 12287 and
12288 (1981), aff'd 446 So.2d 1045 (Fla. 1984), U.S. cert. denied
105 S.Ct. 55 (1984).
The Court affirmed two summary dismissals of unfair labor
practice charges filed against the School Board and the certified
bargaining agent by a public school teacher. Galbreath filed a
grievance which the certified bargaining agent determined was
without merit. The union therefore refused to process it through
arbitration in accordance with a contractual provision which gave
the union control over the arbitration step of the grievance
procedure. The Court stated the question presented in the case
as follows:
170. Palm Beach County v. CWA, 422 So.2d 857 (Fla. 4th DCA 1982),
aff'g 7 FPER 12239 (1981).
The Court affirmed a decision in which the Commission certified
the union as the exclusive collective bargaining representative.
The County sought an order from the Court vacating the
certification, directing the Commission to hold an evidentiary
hearing, and allowing the County discovery rights concerning the
conduct of the representation election. The County also sought
an award of attorney's fees. The Court temporarily relinquished
jurisdiction in order to allow the Commission the opportunity to
resolve an alleged discrepancy of seventy-five votes between the
number of ballots counted and the number of persons voting in
the election. After the Commission satisfactorily resolved the
alleged discrepancy, the Court struck the County's motion for
attorney's fees and affirmed the order on appeal.
171. Leapley v. Board of Regents, 423 So.2d 431, 9 FPER 14096
(Fla. 1st DCA 1982), rev'g 8 FPER 13034 (1982), motion for
reconsideration denied, 8 FPER 13096 (1982).
The Court reversed a decision in which the Commission dismissed
an unfair labor practice charge filed by an employee of the
University of South Florida. The case arose when Leapley filed a
grievance which the Board of Regents refused to process because
of its position that Leapley was not included within the
bargaining unit at the University.
The Court viewed the question of whether Leapley was a member of
the bargaining unit as essentially a factual determination.
Reasoning that this question could be resolved by ordinary
methods of proof, the Court concluded that the Commission
incorrectly rejected the findings of the hearing officer on the
issue. The Court determined that the Commission acted
incorrectly when it viewed this essentially factual matter as a
conclusion of law, and accordingly reversed the Commission's
order and remanded with directions to adopt the hearing officer's
recommended order.
172. Hillsborough
Classroom Teachers Association, Inc. v. School
Board of Hillsborough County, 423 So.2d 969, 9 FPER 14097
(Fla. 1st DCA 1982), aff'g 8 FPER 13074 (1982).
The Court affirmed a decision in which the Commission summarily
dismissed an unfair labor practice charge which alleged that the
School Hoard had refused to bargain concerning class size and
minimum staffing level proposals. The Court expressly agreed
with the Commission's view that the setting of class size and
minimum staffing levels are "policy decisions" which are not
mandatory subjects of bargaining, and further stated that the
Court's decision did not preclude mandatory bargaining as to the
demonstrated impact of such policy decision on the wages, hours,
and terms and conditions of employment of bargaining unit
members.
173. State ex rel. Healy v. Town of Pembroke Park, No.
81-2377S2CZ (Fla. 17th Cir. Ct. November 12, 1982), enforcing
Florida State Lodge, FOP v. Town of Pembroke Park, 7 FPER 12160
(1981), aff'd, 446 So.2d 198, 10 FPER 15101 (Fla. 4th DCA
1984).
The circuit court enforced a Commission order finding that the
Town committed an unfair labor practice by subcontracting the
Town's police service to the county sheriff in order to avoid
bargaining with the police officers' certified representative and
to retaliate against the police officers for filing grievances.
The Court ordered the employer to unconditionally offer
reinstatement to its police officers within 120 days of the date
of the order, to make them whole for any loss of earnings, to
bargain with the certified agent, and to pay costs and attorney's
fees. See Case No. 201, this index.
174. Palm Beach
Junior College Board of Trustees v. United
Faculty of Palm Beach Junior College, 425 So.2d 133, 9 FPER
14098 (Fla. 1st DCA 1982), aff'g 7 FPER 12300 (1981), aff'd in
part and rev'd in part, 475 So.2d 1221, 12 FPER 17019 (Fla.
1985).
A majority of the First District Court's panel agreed with the
Commission's determination that it is improper for a public
employer to insist to the point of impasse upon a management
rights clause which would deprive the union of the right to
impact bargaining upon any changes in wages, hours or terms and
conditions of employment not covered by the agreement.
The Court distinguished private sector cases by noting that
Section 447.403, Florida Statutes, allows a public employer to
impose a mandatory subject of bargaining by legislative body
action, that Florida public employees do not have the right to
strike, and that Section 447.301, Florida Statutes, requires a
relatively broad scope of negotiations to counterbalance the
absence of the right to strike. See Case No. 216, this index,
for Florida Supreme Court decision.
175. Hotel, Motel, Restaurant Employees and Bartenders Union.
Local 737 v. Escambia County School Board, 426 So.2d 1017 (Fla.
1st DCA 1983), aff'g 7 FPER 12395 (1981).
The Court affirmed the Commission's conclusion that when
provisions in a local civil service act conflict with those in
Chapter 447, Part II, Florida Statutes, the latter provisions
prevail. Therefore, a local civil service act could not impede a
public employer from implementing a collective bargaining
agreement. The Court held that Section 447.309(3), Florida
Statutes, when read in pari materia with Section 447.601, Florida
Statutes, contemplates conflicts between collective bargaining
agreements and laws or regulations other than laws or regulations
concerning civil service. A contrary construction would raise
serious constitutional doubts.
The Court also affirmed the Commission's determination that no
unfair labor practice had occurred as a result of the employer's
refusal to implement the ratified agreement because of an
outstanding circuit court injunction.
176. Collier County Board of County Commissioners v. PERC, 427
So.2d 739, 9 FPER 14225 (Fla. 1st DCA 1983), aff'g Federation
of Public Employees v. Collier County Board of County
Commissioners 8 FPER 13145 (1982).
The Court affirmed the Commission's definition of a bargaining
unit comprised of manual, semi-skilled, and skilled county
employees.
177. Southeast Volusia Hospital District v. National Union of
Hospital and Health Care Employees, 429 So.2d 1232, 9 FPER
14173 (Fla. 5th DCA 1983) , rev'g 8 FPER 13161 (1982),
dismissed, 452 So.2d 568 (Fla. 1984).
The Court reversed the Commission's order which interpreted
Section 447.307, Florida Statutes, as permitting simultaneous
voting on the issues of whether professionals and
nonprofessionals desired to be included in one bargaining unit
and whether the employees wanted to be represented by the union.
Stating that "common sense" supported the hospital's position,
the Court held that Section 447.307 mandates an election on union
representation only after the unit is established by the
self-determination election. Consequently, the Court ordered the
Commission to conduct a new representation election in each
bargaining unit as a result of the employees' earlier selection
of separate bargaining units.
The Court rejected the Commission's assertion that the hospital
waived any objection to the form of the ballot by not objecting
prior to the election, because the Commission had not dismissed
the post-election objection on the grounds of waiver.
178. AFSCME, Local 1363 v. PERC, 430 So.2d 481, 9 FPER 14172
(Fla. 1st DCA 1983), aff'g 8 FPER 13278 (1982).
The Court affirmed the Commission's declaratory statement which
held that the parties to a collective bargaining agreement may
agree on a provision which excludes disputes concerning
discipline and discharge from the contractual grievance
procedure, particularly when the excluded disputes may be
resolved through a civil service system.
179. School Board of Clay County v. PERC, 431 So.2d 992 (Fla. 1st
DCA 1983), aff'g Clay County Education Association v. School
Board of Clay County, 8 FPER 13365 (1982).
The Court affirmed the Commission's decision finding that the
public employer committed an unfair labor practice by prohibiting
teachers from wearing certain tee shirts. The tee shirts bore
the inscription "TEACHERS ARE PEOPLE TOO! CCEA/FTP-NEA,"
surrounding a cartoon representation of seven adults, one child
and a dot. Rejecting the argument that Sections 447.509(l)(c)
and 447.501(2)(f), Florida Statutes, authorized such a ban, the
Commission reaffirmed earlier decisions which held that these
provisions were intended to prohibit teachers from affirmatively
instigating or advocating support among students or
organizational activity.
The Court granted the union's motion for appellate attorney's
fees.
180. Kennedy v. Orange County Board of County Commissioners, 431
So.2d 1006, 9 FPER 14224 (Fla. 5th DCA 1983), aff'g 8 FPER
13313 (1982).
The Court affirmed the dismissal of an unfair labor practice
charge which alleged that the employer had denied an employee a
promotion because he had reported safety violations, and that the
employer had refused to discuss the employee's grievance in good
faith.
181. City of Hollywood v. PERC, 432 So.2d 79, 9 FPER 14222
(Fla. 4th DCA 1983), dismissing appeal from Hollywood Fire
Fighters, Local 1375 v. City of Hollywood, 8 FPER 13324 (1982).
The Court dismissed an appeal of a Commission order as untimely
because the motion for reconsideration, filed pursuant to a
Commission order extending the time for filing the motion, did
not toll rendition of the final Commission order. The Court
ruled that, like circuit courts, the Commission had no authority
to suspend rendition of its order beyond the time allowed for
filing a motion for reconsideration in Florida Administrative
Code Rule 380-15.05, as it existed at that time. Subsequently,
the Commission amended the rule. See Fla. Admin. Code Rule
380-15.005(4).
The Court held that Section 120.53(1)(b) and (c), and 447.207(1),
Florida Statutes, granted the Commission the requisite authority
to promulgate a rule allowing for motions for reconsideration
which, when timely filed, suspend rendition of a final order for
purposes of filing a notice of appeal.
The appellee, Hollywood Fire Fighters, Local 1375 was awarded
attorney's fees and costs, the amount to be determined by the
Commission.
182. AFSCME, Local 1907 v. City of Miami and FOP, Miami Lodge 20
v. City of Miami, Nos. AP-259 and AP-Si, 9 FPER 14170 (Fla. 1st
DCA 1893), denying review of 8 FPER 13371 and 13397 (1982).
The Court treated a notice of appeal seeking review of a
Commission order deferring an unfair labor practice charge to
arbitration as a petition for common law writ of certiorari.
The Court denied the unions' consolidated petitions after finding
that the Commission did not depart from the essential
requirements of law or that review of final agency action would
not provide an adequate remedy.
183. Kennedy v. Orange County Board of County Commissioners, No.
82-1104 (Fla. 5th DCA April 22, 1983) (unpublished order), rev'd,
452 So.2d 519 (Fla. 1984).
The Fifth District Court of Appeal denied the Commission's
request to be designated a party appellee because the Commission
was the forum in the underlying case from which the appeal was
taken. See Case No. 204, this index.
184. Charity v. State, Nos. AO-201 and AP-264, 9 FPER 14263
(Fla. 1st DCA May 16, 1983), aff'g Charity v. Office of Labor
Relations, Dept. of Administration, State of Florida, 8 FPER
13386 (1982), and Charity v. Florida State Employees Council 79,
AFSCME, 8 FPER 13385 (1982).
The Court affirmed, without opinion, the Commission's dismissals
of unfair labor practice charges which alleged that the employer
had demoted an employee for filing a grievance and had refused to
arbitrate the grievance. One charge also alleged that the
certified bargaining agent had unlawfully refused to submit the
grievance for arbitration.
185. City of Orlando v. PERC, 435 So.2d 275, 9 FPER 14264 (Fla.
5th DCA 1983), rev'g Orange County PBA v. City of Orlando, 8 FPER
13045 (1981), petition for review denied, 443 So.2d 980 (Fla.
1983).
The Court reversed the Commission's determination that the
employer unlawfully refused to bargain over promotion criteria
and procedures for the position of lieutenant, which was not in
the bargaining unit represented by the certified bargaining
agent. The Court held that promotion procedures and criteria for
a position outside of the bargaining unit do not constitute the
wages, hours or terms and conditions of employment of the
employees within the bargaining unit because "promotion itself is
speculative and uncertain."
186. School Board of Escambia County v. Taylor, No. 78-3006 (Fla.
1st Cir. Ct. Nay 9, 1983).
The court granted the union's motion to intervene and motion to
dissolve a previously granted injunction. The injunction had
prevented the implementation of a collective bargaining agreement
in which certain provisions conflicted with a local civil service
statute. The court relied upon the First District Court of
Appeal's decision in Hotel, Motel, Restaurant Employees and
Bartenders Union, Local 737 v. Escambia County School Board, 426
So.2d 1017 (Fla. 1st DCA 1983). See Case No. 175, this index.
187. Dade Teachers Association v. United Teachers of Dade, Local
1974, 436 So.2d 115, 9 FPER 14294 (Fla. 3d DCA 1983), aff'g 8
FPER 13380 (1982).
The Court affirmed, without opinion, the Commission's summary
dismissal of a charge filed by a rival employee organization
alleging that the incumbent, after having gained access to the
rival's showing of interest, committed an unfair labor practice
by sending a letter to each employee whose name appeared on the
showing of interest to verify that the employee had indeed signed
an authorization card. The Commission found that the sending of
such letters was not unlawful, but rather constituted protected
free speech, since the letters contained neither threats of
reprisal nor promises of benefits.
188. National Union of Hospital and Health Care Employees v.
Southeast Volusia Hospital District, 436 So.2d 294, 9 FPER
14293 (Fla. 1st DCA 1983), aff'g 8 FPER 13419 (1982).
The Court affirmed the Commission's award of attorney's fees and
litigation costs against the charging party. It expressly
approved the standard employed by the Commission that such an
award may be made when the charge is frivolous, groundless or
unreasonable, which is the same standard used to determine
whether an attorney's fee award should be made to a prevailing
defendant in a federal Title VII civil rights case.
189. City of Bradenton v. Southwest Florida PBA, 440 So.2d 358, 9
FPER 14360 (Fla. 2d DCA 1983), aff'g 9 FPER 14100 (1983).
The Court affirmed, without opinion, a Commission order finding
that the City had committed an unfair labor practice by applying
procedural general orders in a discriminatory manner to union
members and by discharging a police captain, a managerial
employee, for refusing to participate in such discriminatory
activity. The Commission order also awarded attorney's fees and
litigation costs to the PBA.
190. Ocean City-Wright Fire Control District v. Ocean City-Wright
Fire Fighters Association, 440 So.2d 413, 9 FPER 14345 (Fla.
1st DCA 1983), aff'g 9 FPER 14033 (1982).
The Court upheld a Commission determination to include fire
captains and fire inspectors in a rank-and-file bargaining unit
where the facts established a community of interest supporting
such inclusions. In affirming the Commission, the Court
indicated that it would "defer to PERC's expertise where, as
here, competent and substantial evidence for the decision exists
in the record."
The Court also upheld the Commission's refusal to consider the
employer's post-election petition. Since the petition "did
nothing more than protest the inclusion of captains in the
bargaining unit" and did not relate to the conduct of the
election or conduct affecting the election results, "substantive
consideration of the post-election petition [by the Commission]
would serve no purpose."
191. City of St. Augustine v. Professional Fire Fighters of St.
Augustine, Local 2282, 440 So.2d 416, 9 FPER 14344 (Fla. 5th
DCA 1983), rev'g 8 FPER 13349 (1982), cert. denied, 450 So.2d
488 (Fla. 1984).
The Court reversed a Commission determination that the City's
fire captains, who were second in command in the fire department,
were not managerial employees. The Court held that even though
these captains were fire suppression shift commanders, their
duties as the first step in grievance processing, their ability
to suspend subordinates for disciplinary reasons and to make
hiring recommendations, and the fact that they had historically
been considered by the employer as managerial, warranted a
managerial designation.
192. FUSA, FTP-NEA v. Hillsborough Community College, 440 So.2d
593, 9 FPER 14359 (Fla. 1st DCA 1983), rev'g 9 FPER 14092
(1983), appeal dismissed, 447 So.2d 886 (Fla. 1984).
The Court reversed a Commission order dismissing an unfair labor
practice charge against the employer. The hearing officer had
found that the employer had discriminated against two of its
employees for pursuing grievances. The Commission rejected this
finding as not supported by competent substantial evidence and
impermissibly substituted its own findings of fact for those of
the hearing officer. The Court also concluded that the
Commission's "contention that the entire burden remains upon
employees to show that but for the protected activity they would
not have been fired (including negation of other asserted
grounds) is simply untenable."
193. Broward Educational Support Personnel Association v. School
Board of Broward County, 441 So.2d 640 (Fla. 4th DCA 1983), aff'g
9 FPER 14007 (1982).
The Court affirmed, without opinion, a Commission order
dismissing a post-election petition seeking to re-litigate the
"public employee" status of personal secretaries to school
principals whom the Commission had designated as confidential
prior to the election.
194. City of Orlando v Orlando Professional Fire Fighters, Local
1365, 442 So.2d 238, 9 FPER 14354 (Fla. 5th DCA 1983), rev'g 9
FPER 14076 (1983), petition for review denied, 450 So.2d 487
(Fla. 1984).
The Court reversed a Commission determination that the City had
committed an unfair labor practice by failing to bargain with the
certified bargaining agent over standards for promotion of unit
members to fire captain, a position outside the bargaining unit.
The Court held that promotional procedures and criteria for a
position outside the bargaining unit are not required subjects of
bargaining.
195. State Department OF Administration v. PERC and Florida
Public Employees Council 79, AFSCME, 443 So.2d 258, 10 FPER
15042 (Fla.1st DCA 1983), aff'g, 9 FPER 14099 1083).
The Court affirmed a Commission order which denied a request that
Department of Administrative Hearings (DOAH) hearing officers and
their secretaries be designated, respectively, as managerial
employees and confidential employees and which included certain
other secretarial positions in the defined unit notwithstanding
the employer's contention that they be excluded on the basis of
an alleged conflict of interest with other unit members. Noting
that a managerial designation effectively results in the
deprivation of the right to collectively bargain guaranteed by
Article I, Section 6, Florida Constitution, the Court held that
the provisions of Section 447.203, Florida Statutes, establishing
criteria for such designations, must be narrowly construed. The
Court stated that in view of this required narrow construction,
the deference due Commission determinations, and the competent
substantial evidence supporting the order under review, the order
should not be disturbed.
196. Board of Regents v. United Faculty of Florida, 443 So.2d
982, 10 FPER 15000 (Fla. 1st DCA 1983), aff'g 9 FPER 14144
(1983).
The Court affirmed, without opinion, the Commission's summary
dismissal of a charge alleging that the UFF had committed an
unfair labor practice by simultaneously attempting to represent a
collective bargaining unit of graduate research/teaching
assistants and a unit of faculty members. The Commission had
based its summary dismissal on the Board of Regents' lack of
standing to complain of any alleged violation of the duty of fair
representation owed to bargaining unit employees by their
bargaining agent.
197. DaCosta v. PERC, 443 So.2d 1036, 10 FPER 15041 (Fla. 1st
DCA 1983), rev'g DaCosta v. Miami Association of Fire Fighters,
Local 587, 8 FPER 13048 (1981), dismissed, 450 So.2d 487 (Fla.
1984).
The Court reversed a Commission order dismissing an unfair labor
practice charge filed against an employee organization alleged to
have harassed a nonunion bargaining unit member by posting,
within six months of the filing of the charge, lists of the names
of all nonunion bargaining unit members, including the charging
party. After the nonmembership lists were posted, the charging
party received late-night anonymous phone calls and verbal abuse
from his fellow employees. The Commission, adopting the hearing
officer's findings of fact in toto, had agreed with the hearing
officer's conclusion that the evidence failed to establish any
threat or intimidation against the charging party within the six
month limitation period for which the organization could be held
responsible. Accordingly, it dismissed the charge. The Court,
in reversing the Commission, held that the Commission had erred
in not fully considering events outside the six-month limitation
period as evidence to determine whether the posting and
subsequent events, which occurred within the six-month period,
constituted unfair labor practices for which the organization
could be held liable.
With respect to the organization's liability for the abuse the
charging party suffered at the hands of his co-workers, the Court
further ruled that the organization should be held responsible
for the "reasonably foreseeable consequence" of its conduct. The
cause was remanded to the Commission for further proceedings,
"including the taking of further evidence, if any, as nay be
required." See Case No. 226, this index, for disposition of case
on remand.
198. Dade County PBA v. City of Homestead, 444 So.2d 465, 10 FPER
15079 (Fla. 3d DCA 1984), rev'g 7 FPER 12347 (1981), rev'd
PERC v. Dade County PBA, 467 So.2d 987, 11 FPER 16169 (Fla.
1985).
The Third District Court of Appeal reversed a Commission order
holding that the Dade County PBA, through the actions of its
Homestead membership representative, had violated the strike
prohibition provisions of Chapter 447, Part II, Florida Statutes,
notwithstanding the efforts of other PBA representatives to
forestall any strike activity. In so holding, the Commission had
rejected the determination made by the hearing officer in the
case that, for purposes of ascertaining the PBA's liability for
the unlawful strike activities of its Homestead membership
representative, such representative was not an "agent" of the PBA
within the meaning of the strike prohibition provisions of
Chapter 447, Part II. The Court concluded that this action on
the part of the Commission constituted an impermissible rejection
of the hearing officer's findings of fact and, accordingly,
reversed and remanded with directions that the Commission adopt
the hearing officer's recommendations. However, by separate
order, the Court certified the following question to the Florida
Supreme Court as one of great public importance: Whether the
Commission may overturn a hearing officer's ultimate
determination of agency in light of what it perceives to be the
applicable law and relevant policy considerations? See Case No.
209, this index for opinion of Florida Supreme Court.
199. City of Tallahassee v. Leon County PBA, Inc., 445 So.2d 604,
10 FPER 15052 (Fla. 1st DCA 1984) , aff'g 8 FPER 13400
(1982).
The Court affirmed a Commission order (1) finding that the City
had committed an unfair labor practice by unilaterally
discontinuing its past practice of paying 100% of PBA-represented
City employees' health insurance premiums without negotiating
with the PBA and by sending notice of the change directly to
these affected employees, and (2) awarding attorney's fees and
costs to the PBA. In finding that an unfair labor practice had
been committed, the Commission had rejected the City's argument
that the PBA had waived its right to bargain over the charge.
In a consolidated case involving the same parties the Court
affirmed a Commission order holding that the PBA had not
committed an unfair labor practice as a result of its delay in
responding to the City's request that the PBA submit bargaining
proposals so that negotiations could commence on those subjects
covered by such proposals.
200. DeMarois v. Military Park Fire Control Tax District No. 4,
446 So.2d 120, 10 FPER 15123 (Fla. 4th DCA 1984), aff'g 9 FPER
14074 (1983).
The Court affirmed, without opinion, a Commission order setting
the amount of back pay to be awarded to a discriminatorily
discharged fire fighter. The Commission had setoff against the
back pay award an amount equal to the fire fighter's earnings
from his own closely held corporation, of which he was the only
employee. In so doing, the Commission had noted that after an
employer raises the issue of setoff with evidence of outside
earnings, the employee has the burden to show why there should be
no setoff. In addition, the Commission had also setoff from the
back pay award an amount equal to the fire fighter's unemployment
compensation benefits. See Case No. 156, this index.
201. Town of Pembroke Park v. State ex rel. Healy, 446 So.2d 198,
10 FPER 15101 (Fla. 4th DCA 1984), petition for review denied,
456 So.2d 1182 (Fla. 1984).
The Court (1) affirmed the circuit court's order granting
enforcement of a Commission order, Florida State Lodge, FOP v.
Town of Pembroke Park, 7 FPER 12160 (1981), finding that the
Town committed an unfair labor practice, and (2) reversed the
circuit court's denial of the Commission's motion to hold the
Town in contempt for failure to comply with the circuit court's
enforcement order. The case was remanded to the circuit court
with directions to conduct an evidentiary hearing and to
determine whether the Town complied with the circuit court's
order directing enforcement of the Commission's reinstatement
order. See Case No. 173, this index.
202. Hillsborough County Board of County Commissioners v. PERC,
447 So.2d 1371 (Fla. 1st DCA 1983).
The Court reversed a Commission certification order because of
the employee organization's failure to fulfill the registration
requirements of Section 447.305, Florida Statutes. Prior to the
issuance of the Commission order under review, the employer had
filed a motion seeking the dismissal of the employee
organization's representation-certification petition on the
ground that the organization was improperly registered due to its
alleged failure, in its registration materials, to disclose its
purported affiliation with another employee organization. The
Commission, in Hillsborough County Government Employees
Association, Inc. v. Hillsborough County Board of County
Commissioners, 7 FPER 12399 (1981), had denied the motion,
declaring that questions regarding the validity of a current
registration license were not appropriately raised in a
representation-certification proceeding. The Court, though, held
that a public employer may challenge the validity of a
petitioning employee organization's registration in a
representation-certification proceeding and that therefore the
Commission had erred in refusing to consider the employer's
motion to dismiss. The cause was remanded to the Commission,
with directions that the petition be dismissed.
203. PERC v. City of Orlando, 452 So.2d 517, 10 FPER 15230
(Fla. 1984).
The Court quashed an order of the Fifth District Court of Appeal
(unpublished order) denying a Commission request for
party-appellee status in a proceeding to review a final
Commission order. The Fifth District had held that the
Commission "is the forum from which the appeal is taken and, as
such, is not a proper party in this court." The Supreme Court
disagreed, holding that the Commission "is a proper party to
review proceedings from its own orders." It reasoned that, in
light of the Commission's statutory authority to seek enforcement
of its orders, and the statutory requirement that an appellate
court must consolidate any enforcement action and appellate
proceeding involving the same Commission order, "it is more
reasonable to grant PERC party status in review proceedings
directly than to require PERC to acquire such status indirectly
by bringing an enforcement action every time PERC believes the
public interest requires its participation." The Court, however,
went on to state that the Commission should "restrain its active
participation in review proceedings to those cases where it has a
direct interest or where the order under review has resolved a
public labor law issue that has an impact upon other public
employees, public employers and taxpayers."
204. PERC v. Kennedy, 452 So.2d 519 (Fla. 1984).
On the authority of PERC v. City of Orlando, 452 So.2d 517 (Fla.
1984), the Court reversed an order of the Fifth District Court of
Appeal (unpublished order) denying a Commission request that it
be designated a party appellee in a proceeding to review a
Commission order. See Case No. 183, this index.
205. Collier County Association of Educational Office and
Classroom Aide Personnel v. School Board of Collier County;
Hillsborough Classroom Teachers Association, Inc. v. School Board
of Hillsborough County; Polk Education Association, Inc. v.
School Board of Polk County, 456 So.2d 1185 (Fla. 2d DCA 1984),
aff'g 9 FPER 14333 (1983); 9 FPER 14243 (1983); 9 FPER
14326 (1983).
The Court consolidated and affirmed, without opinion, the
Commission's orders in the above-styled three cases. In all
three cases the Commission had designated personal secretaries to
school principals as confidential employees in compliance with
School Board of Palm Beach County v. PERC, 374 So.2d 527 (Fla.
1st DCA 1978).
In the School Board of Collier County case, the employee
organization's request for an evidentiary hearing on the issue of
the confidential status of the personal secretaries to school
principals was denied by the Commission. The Commission stated
that:
In the School Board of Hillsborough County case, the Commission
held that the hearing officer did not err in failing to admit
evidence proffered by the employee organization as to the job
functions of personal secretaries to school principals. The
organization also argued that the per se confidential designation
of such secretaries violates due process and equal protection and
abridges their right to bargain collectively, but the Commission
refused to consider these constitutional questions.
In the School Board of Polk County case, the Commission found
that personal secretaries to school principals were per se
confidential employees.
206. Town of Pembroke Park v. PERC, No. 84-739, 10 FPER 15190
(Fla. 4th DCA April 10, 1984).
The Court denied the Town's petition which sought to prohibit
discovery in connection with a Commission proceeding to determine
the amount of reasonable attorney's fees and costs to be paid by
the Town to the successful charging party. The Commission had
authorized the disputed discovery in Florida State Lodge, FOP v.
Town of Pembroke Park, 10 FPER 15087 (1984).
207. Orange County PBA v. City of Casselberry and PERC, 457 So.2d
1125, 10 FPER 15284 (Fla. 1st DCA 1984), rev'g 9 FPER 14120
(1983), aff'd in part and rev'd in part, 482 So.2d 336, 12 FPER
17062 (Fla. 1986).
The First District Court of Appeal reversed a Commission order
dismissing an unfair labor practice charge against an employer.
The Court held that the employer had violated Section
447.5O1(1)(a) and (c), Florida Statutes, by insisting to impasse
upon the exclusion of contractual disputes regarding discharge
and demotion from the grievance procedure to be set forth in its
collective bargaining agreement with the PBA. The Court's
decision was based upon its determination that the exclusion of
such disputes from the grievance-to-arbitration provisions of a
collective bargaining agreement is a non-mandatory (permissive)
subject of bargaining, even where the public employer has a civil
service ordinance covering demotion and discharge. See Case No.
222, this index, for Florida Supreme Court decision.
208. AFSCME, Local 3032 v. Delaney, 458 So.2d 372, 10 FPER
15300 (Fla. 1st DCA 1984), aff'g Delaney v. City of Hialeah, 9
FPER 14339 (1984).
The Court affirmed the Commission's order which found that a
union time pool, contained in a collective bargaining agreement
and applicable to all bargaining unit members, was violative of
Sections 447.501(1) (a) and 447.301(1), Florida Statutes. The
time pool agreement required all employees of the bargaining
unit, including those who did not belong to the union, to
contribute a portion of their leave time to a pool to be used for
union business. The Court adopted the Commission's reasoning
that such an agreement "constitutes a form of union security in
which all bargaining unit members contribute to the support of
the union as a condition of their employment." The City was
ordered to restore previously deducted sick leave or compensatory
leave credit to any employee who was not a union member and who
requested such a refund.
209. PERC v. Dade County PBA, 467 So.2d 987, 11 FPER 16169
(Fla. 1985), quashing Dade County PBA v. City of Homestead. 444
So.2d 465, 10 FPER 15079 (Fla. 3d DCA 1984), and directing
reinstatement of 7 FPER 12347 (1981).
The Supreme Court held that the Commission lawfully rejected a
hearing officer's finding on the issue of agency, where the
rejection was based on the Commission's view that the hearing
officer "applied the wrong standard of proof of agency to the
facts." The Court reasoned that "how the law of agency should be
applied is an interpretation of law and policy and not a
determination of fact." It therefore reinstated the Commission's
order which had been reversed by the Third District Court of
Appeal. The Commission had found the Dade County PBA liable for
the strike activities of one of its stewards, had imposed a
monetary penalty against the PHA, and had assessed reasonable
attorney's fees and litigation costs. See Case No. 198, this
index.
210. Board of County Commissioners of Orange County v. Central
Florida Professional Fire Fighters Association, Local 2057, 467
So.2d 1023, 11 FPER 16168 (Fla. 5th DCA 1985), aff'g in part
and rev'g in part, 9 FPER 14372 (1983).
The Court affirmed a Commission determination that the County had
committed an unfair labor practice by unilaterally discontinuing
its practice of allowing bargaining unit fire fighters to leave
their duty station to purchase food and supplies. The Court held
that this "store visitation" policy was either a condition
impacting upon employment or a term or condition of employment
that the County could not, under the circumstances of the case,
alter without bargaining with the certified union. The Court
reversed the posting remedy fashioned by the Commission and the
Commission's award of attorney's fees and costs.
211. City of Hollywood v. Hollywood Municipal Employees Local
2432, AFSCME, 468 So.2d 1036, 11 FPER 16196 (Fla. 1st DCA
1985), rev'g, 9 FPER 14277 (1983).
The Court reversed a Commission order dismissing a charge
alleging that Local 2432 had violated Section 447.403(4)(e),
Florida Statutes, by refusing to execute and submit to unit
employees for ratification an agreement including tentatively
agreed-upon and legislatively imposed items. In dismissing the
charge, the Commission had rejected a literal interpretation of
Section 447.403(4)(e), because, in its view, such an
interpretation "would produce the absurd result of forcing the
union to ...' agree to a proposal' or 'make a concession.'" The
Court held the Commission's interpretation of the statute was
"not supported by the wording of the statute or the legislative
intent in enacting the statute." The Court remanded the case
with directions that the hearing officer's recommended order,
finding the union guilty of an unfair labor practice, be adopted.
212. Palm Beach Junior College Board of Trustees v. United
Faculty of Palm Beach Junior College, 468 So.2d 1089, 12 FPER
17016 (Fla. 4th DCA 1985), aff'g In re United Faculty of Palm
Beach Junior College, 10 FPER 15225 (1984).
The Court affirmed a declaratory statement issued by the
Commission which held that a contract proposal presented by an
employer which would exclude from the contract's grievance
arbitration procedure all contractual disputes arising after the
expiration date of the contract is not a mandatory subject of
bargaining. In refusing to overturn the Commission's holding,
the Court stated that it is "a well-established maxim of
administrative law that a reviewing Court shall not disturb an
agency's interpretation of a statute which that agency is
responsible for enforcing absent a clear showing of error."
213. Florida Public Employees Council 79 v. State and PERC, 472
So.2d 1184, 12 FPER 17017 (Fla. 1st DCA 1985), aff'g 10 FPER
15208 (1984).
The Court affirmed, without opinion, the Commission's order
dismissing the union's charge that the State violated Section
447.501(1) (a) and (b), Florida Statutes, by unilaterally
changing the amount and method of payment for electrical
utilities used by resident park rangers. The Commission had held
the union clearly and unmistakably waived its right to bargain
over the change by agreeing to incorporate in its collective
bargaining agreement with the State the provisions of Chapters
22K-4 and 5, Florida Administrative Code, which authorized the
State's unilateral action.
214. School Board of Lee County v. PERC, 472 So.2d 1193 (Fla. 2d
DCA 1985).
The Court denied a petition for writ of prohibition filed by the
School District. The School District had sought to prevent the
Commission from proceeding to resolve an unfair labor practice
charge filed by the Association. The charge alleged that the
School District violated Section 447.501(1) (a), Florida
Statutes, by refusing to allow employee supporters of the
Association to distribute the Association's newsletter to
employees during non-work time and in non-work areas and by
denying these supporters access to a general purpose employee
bulletin board. The School District argued that exclusive
jurisdiction over this controversy resided with the circuit court
pursuant to the provisions of Section 447.509, Florida Statutes
(1983). Relates to Support Personnel Association of Lee County
v. School District of Lee County, 11 FPER 16231 (1985).
215. Broward County Classroom Teachers Association, Inc. v.
School Board of Broward County, 475 So.2d 697, 12 FPER 17018
(Fla. 1st DCA 1985), aff'g 10 FPER 15246 (1984).
The Court affirmed, without opinion, the Commission's denial of
an award of attorney's fees and costs to a prevailing charging
party. In the unfair labor practice proceedings, the Commission
concluded that the School Board unlawfully retaliated against one
of its teachers for his involvement in a previous unfair labor
practice case. This finding of unlawful motivation was based
largely on the School Board's failure to comply with a settlement
agreement that had resolved the prior unfair labor practice
controversy. Since the question of whether "noncompliance with
such an agreement could be evidence of unlawful motivation" was
one of first impression, the Commission declined to award fees
and costs against the School Board, a determination that was
upheld on appeal.
216. Palm Beach Junior College Board of Trustees v. United
Faculty of Palm Beach Junior College, 475 So.2d 1221, 12 FPER
17019 (Fla. 1985), aff'g in part and rev'g in part, 425 So.2d
133, 9 FPER 14098 (Fla. 1st DCA 1982), aff'g 7 FPER 12300
(1981).
The Supreme Court agreed with the First District Court of Appeal
and the Commission that the Board of Trustees had failed to
bargain in good faith by insisting to impasse upon, and
ultimately imposing through legislative body impasse resolution
action, a contractual provision eliminating the union's right to
impact bargaining. The Supreme Court, though, disapproved of a
portion of the remedy ordered by the Commission. The Commission
had directed the Board to sign a collective bargaining agreement
that contained all items tentatively agreed to by the parties and
all impasse items resolved by legislative body action except for
the offensive contractual provision. The Supreme Court rejected
this remedy because Section 447.203(14), Florida Statutes, bars
the Commission from imposing an agreement on the parties. See
Case No. 174, this index.
217. Shivers v. School Board of Dade County, 476 So.2d 686 (Fla.
3d DCA 1985), aff'g 11 FPER 16161 (1985).
The Court affirmed, without opinion, the Commission's summary
dismissal of Shivers' charge alleging that the School Board
violated Section 447.501(1) (a) and (f), Florida Statutes, by not
reappointing him as a maintenance employee because of the
numerous grievances he had filed. Shivers had unsuccessfully
contended that the statute of limitations was tolled during the
time he appealed his nonreappointment under the collective
bargaining agreement and that therefore the charge was timely in
all respects. The Commission also rejected the argument advanced
by Shivers that the School Board could not lawfully condition an
offer of reinstatement upon Shivers' agreement to withdraw his
grievances and waive back pay.
218. City of Hollywood v. PERC and Hollywood Fire Fighters, Local
1375, 476 So.2d 1340, 12 FPER 17020 (Fla. 1st DCA 1985), aff'g
in part and rev'g in part, 11 FPER 16001 (1984).
The Court reversed in part and affirmed in part a Commission
order dealing with conduct which occurred during a legislative
body impasse hearing. The Commission found that certain brief
off-the-record discussions between the City Attorney and City
Manager created an "appearance of impropriety," constituting an
unfair labor practice. The Court disagreed although it left
undisturbed the "appearance of impropriety" standard the
Commission had applied in evaluating the City's conduct. Noting
that there was no evidence the challenged activity prejudiced the
unit members and that the union failed to establish the content
of the conversations, the Court found there was no appearance of
impropriety.
The Court, however, agreed with the Commission that the City
committed an unfair labor practice by taking legislative body
action to eliminate the unit members' statutory right to appeal
arbitration awards pursuant to Chapter 682, Florida Statutes. In
upholding the Commission, the Court observed: (1) a subject not
brought before the special master may not be considered by the
legislative body, and (2) "unless the parties mutually and
expressly agree to waive a statutory right, it cannot be lawfully
imposed."
219. City of Hallandale v. Hallandale Professional Fire Fighters,
Local 2238, 478 So.2d 63, 12 FPER 17021 (Fla. 4th DCA 1985),
aff'g 11 FPER 16071 (1985).
The Court affirmed, without opinion, the Commission's
clarification of a fire fighter unit to include the newly created
rank of captain. The City unsuccessfully argued that the fire
captains should have been excluded from the rank-and-file unit
because they were either conflict supervisors or
managerial/confidential employees. The City also contended that
the Commission erred by failing to conduct an opt-in election for
the fire captains. The Court awarded appellate attorney's fees
against the City.
220. Federation of Public Employees v. PERC and Clerk of the
Circuit and County Courts of the Seventeenth Judicial Circuit of
Broward County, 478 So.2d 117, 12 FPER 17022 (Fla. 4th DCA
1985), aff'g 10 FPER 15287 (1984).
The Court affirmed the Commission's dismissal of the Federation's
recognition-acknowledgment petition. The Federation had sought
to represent a unit of deputy circuit court clerks. Relying on
the Florida Supreme Court's holding in Murphy v. Mack, 358 So.2d
822 (Fla. 1978) (Case No. 45, this index), the Commission
concluded that these deputy clerks are not public employees
within the meaning of Chapter 447, Part II, Florida Statutes, and
it therefore dismissed the Federation's petition. The Court, in
a brief opinion, specifically approved the Commission's
application of Murphy v. Mack and affirmed the Commission.
221. School Board of Polk County v. Polk Education Association
and PERC, 480 So.2d 1360, 12 FPER 17061 (Fla. 1st DCA 1985),
aff'g 10 FPER 15054 and 15156 (1984).
The Court affirmed the Commission's refusal to designate as
confidential employees the personal secretaries of four area
superintendents. The School Board relied upon the Court's
holdings in Pensacola Jr. College v. PERC, 400 So.2d 59 (Fla. 1st
DCA 1981) and School Board of Palm Beach County v. PERC, 374
So.2d 527 (Fla. 1st DCA 1978), for the proposition that the Court
has established a per se confidential exclusion of all personal
secretaries to managerial employees.
The Court found these cases inapplicable, and expressly adopted
the Commission's narrow interpretation of the confidential
employee exclusion set forth in Section 447.203(5), Florida
Statutes. This interpretation, known as the "labor nexus test,"
restricts the confidential exclusion to employees who assist, in
a confidential capacity, managerial employees who formulate,
determine, and effectuate policies in the field of labor
relations, or who regularly have access to confidential
information concerning anticipated changes resulting from
collective bargaining negotiations.
222. City of Casselberry v. Orange County PBA, 482 So.2d 336, 12
FPER 17062 (Fla. 1986), approving in part and quashing in part,
457 So.2d 1125, 10 FPER 15284 (Fla. 1st DCA 1984), rev'g 9
FPER 14120 (1983).
The Florida Supreme Court held that Section 447.401, Florida
Statutes, does not infringe upon a municipality's right to
establish a civil service appeal procedure by ordinance. To the
extent the ordinance conflicts with a state statute, such as
Section 447.401, the statute prevails pursuant to Article VIII,
Section 2(b) of the Florida Constitution and Section 447.601,
Florida Statutes. The City could not require the exclusion of
demotion and discharge issues from the grievance procedure as a
condition to entering into an agreement on other subjects.
However, the Court found that the facts did not support the First
District Court of Appeal's conclusion that the City committed an
unfair labor practice. The evidence did not demonstrate that the
City's position on grievance-arbitration prevented the parties
from reaching agreement on other subjects. See Case No. 207,
this index.
223. IBPO, Local 621 v. City of Hollywood, 482 So.2d 361 (Fla.
4th DCA 1986), aff'g Broward County PBA, Inc. v. City of
Hollywood, 10 FPER 15294 (1984).
The Court affirmed, without opinion, the Commission's summary
dismissal of election objections filed by an incumbent union
defeated by a rival organization in a representation election.
The Commission had summarily dismissed the incumbent's objections
to certain misrepresentations allegedly made by the rival
organization during the election campaign because these campaign
statements contained no threats of reprisal or promises of
benefit. The incumbent had also alleged in its objections that
the City discriminated in favor of the rival organization by
allowing police officers to adjust their work schedules and to
use marked police vehicles to attend a meeting sponsored by the
rival. Because this alleged discriminatory conduct did not
constitute "a significant impediment to the employees' freedom of
choice," the Commission also summarily dismissed this objection.
224. Hillsborough County Aviation Authority v. Hillsborough
County Governmental Employees Association, Inc., 482 So.2d 505
(Fla. 2d DCA 1986), rev'g 11 FPER 16102 (1985), rev'd, 522
So.2d 358 (Fla. 1988).
The Court, reversing the Commission, held that the Aviation
Authority did not commit an unfair labor practice when it refused
to implement certain provisions in two collective bargaining
agreements it had entered into with the Hillsborough County PBA
and Hillsborough County Governmental Employees Association. The
provisions in question conflicted with certain rules of the
Hillsborough County Civil Service Board, which was created by
special act. When the Aviation Authority requested the Civil
Service Board to amend its rules to conform to the agreement, the
Board refused.
The Court reasoned that the County did not violate its duty to
bargain in good faith, since it followed the Court's earlier
decision in Pinellas County PBA v. Hillsborough County Aviation
Authority, 347 So.2d 801 (Fla. 2d DCA 1977). In that case, the
Court construed Section 447.309(3), Florida Statutes, to require
a public employer to only seek an amendment of applicable civil
service rules to conform to any conflicting provisions in a
collective bargaining agreement. If the Civil Service Board
chose not to amend its rules, the employer would not be required
to implement the conflicting contractual provisions. See Case
No. 252, this index.
225. Florida School for the Deaf and the Blind v. Florida School
for the Deaf and the Blind Teachers United, 483 So.2d 58 (Fla.
1st DCA 1986), aff'g 11 FPER 16080 (1985).
The Court upheld the Commission's determination that the Florida
Legislature, not the School Board of Trustees, was the
legislative body authorized to resolve an impasse between the
Board and the union representing the Board's teachers.
Consequently the Board committed an unfair labor practice by
unilaterally altering the workday and planning time of its
academic personnel while purporting to legislatively resolve an
impasse pursuant to Section 447.403(4)(d), Florida Statutes. The
Court also agreed that the Board had not adduced sufficient
evidence to support the defense of exigent circumstances and
affirmed an award of costs and attorney's fees for the union.
226. DaCosta v. PERC, 484 So.2d 11 (Fla. 1st DCA 1986), aff'g
DaCosta v. Miami Association of Fire Fighters, Local 587, 11
FPER 16007 (1984), on remand from 443 So.2d 1036, 10 FPER
15041 (Fla. 1st DCA 1983).
The Court affirmed, without opinion, the Commission's dismissal
of an employee's unfair labor practice charge against an employee
organization alleging intimidation and harassment because of the
employee's withdrawal from membership in the organization. The
Commission affirmed the hearing officer's finding that a fist
fight between DaCosta and a union member was initiated by DaCosta
and unrelated to union matters. Further the union's posting of a
list of nonmembers and the exchanging of insults did not rise to
the level of interference, coercion, restraint or discrimination.
The Commission also determined that the record was insufficient
to show that the employee organization was responsible for late
night telephone calls to the employee's home after the list was
posted. See Case No. 197, this index.
227. Gadsden Memorial Hospital v. Cheshire, 485 So.2d 832 (Fla.
1st DCA 1986) , aff'g 11 FPER 16132 (1985).
The Court affirmed, without opinion, the Commission's
determination that the Hospital had violated Section
447.501(1)(a), Florida Statutes, by discharging Cheshire for
presenting a grievance to her superiors on behalf of herself and
her fellow shift employees. The hearing officer had found that
Cheshire would not have been terminated had her immediate
supervisor, acting within the scope of her supervisory authority,
not reported Cheshire's alleged insubordination to the Hospital
official responsible for Cheshire's discharge. Since the hearing
officer had further found that the immediate supervisor would not
have reported Cheshire's alleged insubordination had Cheshire not
engaged in protected concerted activity, the Commission concluded
that Cheshire's discharge was the product of an unlawful motive
for which the Hospital was liable.
228. District Board of Trustees of Palm Beach Junior College v.
United Faculty of Palm Beach Junior College, 489 So.2d 749 (Fla.
4th DCA 1986), aff'g 11 FPER 16101 (1985).
The Court affirmed, without opinion, the Commission's
determination that the Board of Trustees violated Section
447.501(l)(a), Florida Statutes, when the College's president
suspended two employees, reprimanded three other employees and
issued a letter threatening further discipline for exercising
protected rights. The Commission rejected the Board's collateral
estoppel defense which was based upon findings of fact and
conclusions of law resulting from the employees' appeal of the
president's discipline to a substitute Board of Trustees. The
Commission held it was not bound by the findings of a
party-respondent and that the substitute Board's conclusions
concerning the employees' alleged unethical and unprofessional
behavior was not determinative of whether an unfair labor
practice had occurred.
On the merits the Commission held that the dissemination of the
results of an employee survey that was highly critical of the
Board and the president, to certain State officials, including
the Governor and the Commissioner of Education, constituted
concerted activity protected by Section 447.301(3), Florida
Statutes. The Commission also concluded that statements made in
the survey were not defamatory and thus did not lose their
protection under Section 447.301(3). The Commission declined to
award costs or attorney's fees.
229. Metropolitan Dade County v. Bacchus, 490 So.2d 1266 (Fla. 3d
DCA 1986), aff'g 11 FPER 16250 (1985), reh'g denied, 12 FPER
17039 (1985).
The Court affirmed, without opinion, the Commission's decision
that the County unlawfully interfered with an employee's right to
representation. A County agent had continued a investigatory
interview with an employee without the presence of union
representation after the employee had requested representation.
On reconsideration, the Commission declined to "expressly define
the circumstances of waiver of representation" beyond the facts
of the instant case.
230. Leon County PBA, Inc. v. City of Tallahassee, 491 So.2d 589
(Fla. 1st DCA 1986), aff'g 11 FPER 16235 (1985).
The Court affirmed the Commission's determination that nonsworn
police department communications officers and their supervisors
were not properly included in a bargaining unit of sworn
employees based on a full analysis of all of the governing
statutory factors. In making its determination, the Commission
receded from recent precedent placing excessive emphasis on the
"interdependence of jobs" component of the "community of
interest" test without giving adequate consideration to the other
statutory criteria for defining bargaining units. The Court, in
upholding the Commission, noted that the "community of interest"
determination made by the Commission was a "mixed question of
fact and law infused by policy considerations and agency
expertise in the application of statutory standards" and that
therefore the Commission was not bound by the hearing officer's
recommendation on this issue.
231. School Board of Levy County v. Levy County Education
Association, 492 So.2d 1140 (Fla. 1st DCA 1986), aff'g 11 FPER
16096 (1985).
The Court affirmed the Commission's decision that supplemental
pay for coaching duties performed by teachers was a "wage" and
therefore a mandatory subject of collective bargaining. The
Court also held that the Commission did not err in receding from
its prior decision in Martin County Education Association v.
School Board of Martin County, 5 FPER 10199 (1979), aff'd, 380
So.2d 582 (Fla. 1st DCA 1980).
232. FOP, Miami Lodge 20 v. City of Miami, 492 So.2d 1122 (Fla.
3d DCA 1986) rev'g 11 FPER 16128 (1985), rev'd, 511 So.2d 549
(Fla. 1987).
The Court reversed the Commission's deferral of an unfair labor
practice charge to an arbitrator and the subsequent approval of
the arbitrator's decision. The Court reasoned that Chapter 447,
Part II, Florida Statutes, does not authorize deferral to
arbitration "notwithstanding [the Commission's] alleged adoption
of and reliance of the pronouncements of the National Labor
Relations Board." In an unpublished corrected order, the Court
certified the issue to the Florida Supreme Court which reversed
the district court of appeals decision. See Case No. 246, this
index.
233. City of Gainesville v. Alachua County PBA, Inc., 493 So.2d
46 (Fla. 1st DCA 1986), aff'g in part. vacating in part. and
remanding, 11 FPER 16029 (1985).
The Court affirmed the Commission's determination that the City's
police lieutenants were neither managerial nor confidential
employees and that they were properly included in a supervisory
bargaining unit of police personnel. The Court, however,
reversed the Commission's decision to include two police
sergeants in this unit, finding that this decision by the
Commission was not supported by competent substantial evidence.
The case was remanded for the taking of additional evidence on
the issue of the appropriateness of the two police sergeants'
inclusion in the unit.
234. City of North Port v. Southwest Florida PBA, Inc., 497 So.2d
246 (Fla. 2d DCA 1986), aff'g 11 FPER 16291 (1985).
The Court affirmed, without opinion, the Commission's
determination that nonsworn telecommunications officers and
senior telecommunications operators (dispatchers) should be
afforded the opportunity to "opt-in" to an existing unit of sworn
police officers. In determining that these dispatchers shared a
community of interest with the City's sworn police officers, the
Commission reiterated that the facts of each case must be
evaluated in light of all the criteria of Section 447.307(4) to
determine whether the questioned classifications share a distinct
community of interest. The Commission also rejected exceptions
by the City in which it contended that the employees of the
existing unit should be allowed to vote on the inclusion of
nonsworn employees in the unit and that police officers are
"professional employees" as defined in Section 447.203(13).
235. City of Sarasota v. Southwest Florida PBA, Inc., 497 So.2d
246 (Fla. 2d DCA 1986), aff'g 11 FPER 16293 (1985).
The Court affirmed, without opinion, the Commission's
determination that the City's dispatchers, senior dispatchers,
communications supervisors, community service aides (CSAs), and
community service aide supervisors shared a sufficient community
of interest with sworn police officers in an existing unit to
afford the employees an opportunity to "opt-in" by election to
the existing unit. The Commission rejected the argument by the
City that res judicata or estoppel by judgment barred litigation
of the unit appropriateness issue as to CSAs due to an earlier
failed attempt to include them in the sworn unit through the
filing of a unit clarification petition. The Commission also
rejected arguments that members of the existing unit should be
allowed to vote on inclusion of nonsworn employees in the unit
and that police officers should be considered "professional
employees" as defined in Section 447.203(13).
236. ATU, Local 1593 v. IBF&O, Local 1220, 497 So.2d 665 (Fla.
1st DCA 1986), aff'g 11 FPER 16236 (1985).
The Court affirmed a Commission order directing a representation
election among 2 groups of merged transit authority employees.
The dispute concerned the merger of the transit operations of the
City of St. Petersburg, whose employees were represented by
IBF&O, and the Pinellas Suncoast Transit Authority (PSTA), whose
employees were represented by ATU. The Commission determined
that two separate bargaining units, one consisting of former City
employees and the other, composed of PSTA employees who had been
with the PSTA prior to the merger of operations, were
inappropriate. Rather, it found that the appropriate unit, for
purposes of collective bargaining, was a new county-wide unit
consisting of all of PSTA's blue-collar employees, including
those who had been employed by the City. The Commission also
concluded the "contract bar rule" of Section 447.307(3)(d),
Florida Statutes, was not inapplicable because the unit of PSTA
employees represented by the ATU no longer was appropriate. The
Court agreed with the Commission that the ATU-represented unit
was no longer appropriate and that therefore the ATU could not
rely on contract bar principles. In so doing, the Court stated
the Commission should be given "substantial deference in its
application of the unit appropriateness criteria set forth in
Section 447.307(4)." The Court also found that ATU had been
validly joined as a party to these proceedings and that the
Commission's resolution of this case did not constitute the
improper promulgation of a rule.
237. United Teachers of Dade v. Dade County School Board, 500
So.2d 508 (Fla. 1986).
The Florida Supreme Court, by a 5-2 margin, upheld the constitu-
tionality of the "Master Teacher Program" concluding that the
program did not establish a wage that had to be negotiated.
Therefore the legislative imposition of the program, without
providing for negotiations between local school boards and unions
certified to represent teachers, did not abridge the
constitutional right of public employees to engage in collective
bargaining.
The Court disagreed with the trial court's conclusion that the
program is constitutional because the Florida Legislature is not
a party to the collective bargaining process. Such an analysis
would incorrectly ignore the impact of legislative enactments on
constitutional collective bargaining rights. Chapter 447, Part
II, does not necessarily define the parameters of Article I,
Section 6.
238. ATU, Local 1596 v. Orange-Seminole-Osceola Transportation
Authority, 500 So.2d 1352 (Fla. 1st DCA 1987), aff'g 12 FPER
17134 (1986).
The Court affirmed, without opinion, the Commission's decision
that the Orange-Seminole-Osceola Transportation Authority did not
unlawfully refuse to bargain collectively with Local 1596 by
allegedly: (1) failing to provide Local 1596 with an adequate
opportunity to explain its bargaining positions on impasse items
at the legislative hearings conducted pursuant to Section
447.403, (2) failing to deduct dues for probationary employees,
(3) unilaterally subcontracting routes in its southwest district,
or (4) unilaterally subcontracting landscaping and janitorial
services. The Commission ruled that Local 1596 had not made a
proper demand for dues deductions and had waived its opportunity
to negotiate over subcontracting. However, the Commission
further found that the Authority failed to bargain in good faith
with Local 1596 by insisting upon a contractual provision
designating a private company as the employer of bargaining unit
employees and by unilaterally altering its absenteeism policy
without affording Local 1596 prior notice and an opportunity to
bargain. Local 1596 was awarded attorney fees and costs for
those portions of the charge upon which it prevailed. The
Authority, though, was not awarded fees and costs for those
portions on which it prevailed since the charges in question were
not frivolous, unreasonable, or groundless.
239. Town of Pembroke Park v. Florida State Lodge, FOP, 501 So.2d
1294 (Fla. 4th DCA 1987), aff'g and remanding, 10 FPER 15072
(1984).
The Court affirmed the Commission's order awarding back pay to
police officers and determining that the officers had a duty to
mitigate their damages. The Court affirmed the Commission's
determination that the officers had sufficiently attempted to
mitigate. The Court also affirmed the prospective application of
a new mitigation standard, where the Commission had not
previously advised the public of its intent to use the more
stringent standard. In addition, the Court approved the
Commission's calculation of interest at 12 percent beginning at
the midpoint of the back pay period and the award of attorney's
fees to the police union as the prevailing party. The Court
remanded the case to the Commission for correction of errors
contained in the calculation of the amount of back pay due three
officers. See Case Nos. 173, 201, 206, this index.
240. City of Miramar v. Broward County PBA, 505 So.2d 8 (Fla. 5th
DCA 1987), aff'g 12 FPER 17147 (1986).
The Court affirmed the Commission's determination that the City's
two police captains were not managerial employees. The
Commission found that captains did not participate in formulation
of departmental policy but merely implemented that policy.
However, the Commission designated a lieutenant who was a member
of the City's collective bargaining negotiating team as
managerial. The Court compared this case with City of
Jacksonville v. Jacksonville Association of Fire Fighters, IAFF,
Local No. 1834, 365 So.2d 1098 (Fla. 1st DCA 1979).
241. Florida State Lodge, FOP v. City of Hialeah, 815 F.2d 631
(11th Cir. 1987).
The United States Court of Appeals, Eleventh Circuit, affirmed
the district court's determination that the impasse resolution
provisions contained in Section 447.403(4), were constitutional.
The union had alleged, in a suit filed under Section 42 USC 1983,
that it was not afforded due process because the City's role as
an interested party in the collective bargaining negotiations
prevented a meaningful hearing before the City Council during the
impasse proceeding. The Court concluded that the statutory
procedure for resolving an impasse was not unconstitutional on
its face or as applied, because the union was afforded a
meaningful opportunity to be heard and the City Council had the
benefit of a Special Master's recommendations. The union had
also alleged that the City's reduction of the payout rate for
sick leave and the accrual rate for annual leave benefits for new
employees as recommended by the Special Master was a substantive
due process violation as well as an unconstitutional impairment
of the obligation of contract. Reasoning that future payments
for benefits are not protected property interests, and that
as-yet-unhired employees were without a property interest in
as-yet-unearned annual leave, the Court denied this claim as
well. The appellate court affirmed the granting of the City's
motion for summary judgment and the dismissal of the union's case
with prejudice.
242. Teamsters Local 444 v. Pasco County Board of County
Commissioners, 505 So.2d 541 (Fla. 1st DCA 1987), aff'g 12 FPER
17041 (1985).
The Court affirmed the Commission's dismissal of an unfair labor
charge. The union had alleged that the County (1) failed to
bargain in good faith by failing to meet at reasonable times and
places with union representatives, (2) placed unreasonable
restrictions on the union and its bargaining team as a
prerequisite to meeting, (3) failed to discuss bargainable
issues, (4) negotiating directly with employees rather than with
the union, and (5) engaged in a pattern and practice of surface
bargaining without an intent to reach a common accord or a
sincere desire to resolve differences. After a detailed
evaluation of the record, the Commission reversed the hearing
officer's decision and concluded that competent substantial
evidence did not exist to support that the withholding of wage
and merit pay increases was intended to discourage union
membership. The Commission then concluded that the County did
not fail to bargain in good faith and dismissed the petition.
The Court, in accord with Palm Beach Junior College v. United
Faculty of Palm Beach Junior College, 425 So.2d 133 (Fla. 1st DCA
1983), app'd in part. disapp'd in part, 475 So.2d 1221 (Fla.
1985), held that this conclusion was a policy decision which PERC
was well-suited to make.
243. City of New Port Richev v. Hillsborough County PBA, Inc.,
505 So.2d 1096, (Fla. 1st DCA 1987), rev'g 12 FPER 17040
(1985).
The Court reversed the Commission's determination that a
unilateral reduction in the City's percentage of contribution to
the police pension fund was an unfair labor practice. The Court
reasoned that the City was not required to bargain with the union
before it implemented the reduction, because the reduction had no
impact on the employees' pension benefits or required
contributions. The Court distinguished this case from the
decision in School Board of Indian River County v. Indian River
County Education Association, 373 So.2d 412 (Fla. 4th DCA 1979),
on the grounds that here no change occurred which affected
bargaining unit employees.
244. Florida PBA, Inc. v. City of Jacksonville and PERC, No.
BP-336 (Fla. 1st DCA May 28, 1987), aff'g 12 FPER 17313 (1986).
The Court affirmed, without opinion, the Commission's
determination that the City had not committed am unfair labor
practice when it denied access to an upstairs nonpublic hallway
to employee representatives of a rival union. The City had
allowed the certified bargaining agent access to the hallway for
functions attendant to its status as certified bargaining agent
but not for purely organizational purposes. The Commission
stated that "for purely organizational purposes, a rival union
and an incumbent are similarly situated irrespective of whether a
petition has been filed. It is only with respect to access
related to its functions as the exclusive bargaining agent that
am incumbent union remains unique."
245. City of Miramar v. FOP, Florida State Lodge, 509 So.2d 321
(Fla. 4th DCA 1987), aff'g 12 FPER 17332 (1986).
The Court affirmed, without opinion, the Commission's
determination that the City had committed an unfair labor
practice when it issued a memorandum advising the union that in
the event the union rejected the Special Master's impasse
recommendation, the City's legislative body would impose less
favorable terms. The memorandum was issued the day before the
union rejected the Special Master's decision. The City thus
acted in derogation of its statutory duty upon impasse to
consider recommendations from its chief executive officer and
from the union, as well as to conduct a public hearing, before
resolving disputed impasse issue.
246. City of Miami and PERC v. FOP, Miami Lodge 20, 511 So.2d 549
(Fla. 1987), rev'g 492 So.2d 1122 (Fla. 3d DCA), rev'g 11 FPER
16128 (1985).
Upon review of FOP, Miami Lodge 20 v. City of Miami, 492 So.2d
1122 (Fla. 3d DCA 1986), the Supreme Court of Florida quashed the
lower court decision and held that PERC does have authority,
under Chapter 447, Part II, Florida Statutes, to defer unfair
labor practice charges to arbitration, and to give final and
binding effect to the arbitrator's contract interpretation. In a
unanimous decision the Court held that the "policy of deferral
represents a reasonable method for PERC to give effect to its
statutory duties", particularly Section 447.401 which requires a
grievance procedure that culminates in final and binding
arbitration. The Court further found that in this case, PERC's
decision to defer was appropriate and that PERC's final order was
supported by competent, substantial evidence. The Court noted
that the Commission had adopted a rule on deferral. Fla. Admin.
Code 38D-21.0l1.
247. School Board of Lee County v. Lee County School Board
Employees, Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987),
rev'g 12 FPER 17331 (1986).
The Court reversed the Commission's determination that a school
principal had violated Section 447.501(l)(a), Florida Statutes,
by directing a cafeteria worker to stop discussing work problems
with coworkers. The Court found that PERC applied an incorrect
evidentiary standard in finding a violation of Section
447.501(1)(a), Florida Statutes (1985). The applied standard of
"reasonable tendency to interfere" was too broad, as this would
allow an unfair labor practice based on the employee's subjective
reaction to an employer's action and therefore restrict an
employer's otherwise legitimate conduct and rights. The Court
stated that the correct standard requires the employee to show
that the otherwise protected activity was a substantial or
motivating factor in the employer's decision or action which
constituted the alleged violation. The Court reversed the order
and remanded the matter for further consideration. On remand,
the Commission found a violation after applying the test mandated
by the court. See 14 FPER 19071 (1988).
248. School District of Lee County v PERC and Support Personnel
Association of Lee County, 513 So.2d 1286 (Fla. 1st DCA 1987),
aff'g and rev'g 11 FPER 16231 (1985).
The Court reversed the Commission's determination that the School
Board had violated Section 447.501(1) (a), Florida Statutes, by
prohibiting distribution of organizational literature during
monwork time and in nonwork areas, and by removing literature of
rival union from the general purpose employee bulletin board.
The Court held that Section 447.509 prohibits distribution of
literature in working areas at all times and distribution in
mon-work area during working hours.
Further, the limitation of the use of the bulletin board was
reasonable. Despite this, the Court ruled that access to some
bulletin board was appropriate. Under Section 447.509, however,
some of the Board's restrictions were proper as this section
prohibits distribution of literature in working areas at all
times and distribution in nonwork areas during working hours.
The Court therefore reversed PERC's order and remanded the cause
for further consideration and entry of a modified order by PERC.
249. Weaver v. Leon Classroom Teachers Association, 515 So.2d 987
(Fla. 1st DCA 1987), aff'g 12 FPER 17339.
The Court affirmed, without opinion, the Commission's
determination that the LCTA (Union) did not violate it's duty of
fair representation. The Commission dismissed the employee's
charge, that the Union violated its duty of fair representation
by accepting an inadequate settlement, because the evidence
presented was insufficient to show that the settlement was
reached in bad faith, or was arbitrary or discriminatory.
250. Florida Public Employees Council 79, AFSCME v. Martin County
Property Appraiser, 521 So.2d 243 (Fla. 1st DCA 1988), aff'g 13
FPER 18126 (1987).
The Court affirmed the Commission's determination that employees
of the county property appraiser are appointed deputies of an
elected constitutional officer and therefore, are not "public
employees" within the meaning of the act. Under the Supreme
Court decision in Murphy v. Mack, 358 So.2d 822 (Fla. 1978)
deputies are appointed and invested with the same sovereign
power. "By virtue of Section 193.024, Florida Statutes, the
property appraiser is empowered to appoint deputies to act on his
behalf his employees are for that purpose, his alter ego."
251. Hillsborough County Governmental Employees Association v.
Hillsborough County Aviation Authority, 522 So.2d 358 (Fla.
1988), aff'g and rev'g 482 So.2d 505 (Fla. 2d DCA 1986), rev'g 11
FPER 16102 (1985).
The Florida Supreme Court, in a five to two decision, held that
"a public employer must implement a ratified collective
bargaining agreement ... despite the fact that such
implementation may conflict with applicable Civil Service Board
Rules." In reversing the Second District Court of Appeal's
decision that reversed the Commission determination that the
County had an obligation to implement such agreements, the Court
affirmed that portion of the lower decision that the Authority
should not be held to have committed an unfair labor practice
because the existing law in the second district validated the
position taken by the authority, and therefore held the
Commission's order prospective. In reaching its conclusion, the
Court determined that Section 447.309(3), Florida Statutes
(1987), is unconstitutional as it applies to civil service boards
in that the section effectively gives civil service boards veto
authority over collective bargaining agreements, thereby
abridging constitutional rights.
The two dissenters labeled the majority decision as "a death
knell for civil service Systems," and criticized the majority for
failing to give adequate consideration to Article III, Section
14, of the Florida Constitution which authorizes the creation of
local civil service Systems.
252. Sanitation Employees Association v. Metropolitan Dade
County, 526 So.2d 128 (Fla. 3d DCA 1988), rev'g 13 FPER 18099
(1987), appeal filed (Fla. July 27, 1988).
The Court reversed the Commission's determination that, where a
union discloses and cures a defective registration with adequate
notice to employees prior to an election, dismissal of the
representation petition is appropriate. Although other DCA's
have held to the contrary, the Court determined that the
legislative purpose underlying the registration requirements is
fully satisfied when a deficiency is cured with adequate notice
to employees before a representation election. Accordingly, the
Court reversed the Commission's order and remanded the cause with
directions to accept the union's corrected registration
certificate.
253. City of Winter Park v. Winter Park Professional Fire
Fighters, Local 1598, 529 So.2d 1215 (Fla. 5th DCA 1988), rev'g
13 FPER 18222 (1981), pet. for review denied No. 73,100 (Fla.
Feb. 21, 1989).
The Court reversed the Commission's order defining a supervisory
unit of firefighting employees and held that battalion chiefs
were managerial employees. The Court based its decision on the
battalion chief's role in policy formation, employee relations,
personnel administration and contract administration.
254. City of Miami v. FOP, Miami Lodge 20, 14 FLW 299 (Fla. 3d
DCA Jan. 31, 1989), aff'g 12 FPER 17029 (1985), reh'g granted,
(Fla. 3d DCA April 13, 1989).
The Court affirmed the Commission's determination that compulsory
drug testing was a term and condition of employment and that the
City's unilateral imposition of such testing without bargaining
constituted an unfair labor practice. The Court noted that
Florida courts have not used a balancing test to determine
whether an item is a mandatory subject of bargaining, that drug
testing is not an "entrepreneurial concern" and that drug testing
does not fall within the definition of management rights in
Section 447.209. Because such testing is a mandatory subject in
the private sector, Article I, Section 6 of the Florida
Constitution mandates that it be negotiable in the Florida public
sector.
The Court also affirmed the determination that the FOP did not
waive by contract its right to negotiate over drug testing. The
contractual provision at issue did not meet the clear and
unmistakable test.
255. City of Miami v. AFSCME, Council 79, No. 88-667 (Fla.
3d DCA Feb. 7, 1989), aff'g 14 FPER 19074 (1988).
The Court affirmed the portion of the Commission's order
assessing attorney fees and costs against the City for certain
acts of discrimination based upon union activities committed by
agents of the City.
This site maintained for educational organizations by
For citation please see the Reporter
for this jurisdiction.
DISCLAIMER
[PERC stopped publishing this document in 1988]
contractual control over the arbitral step of the
grievance procedure and it declines to process a
grievance to arbitration because it believes the
grievance to be without merit, is the public
employer still obligated to arbitrate the dispute
if the grievant submits it to arbitration because
the certified bargaining agent has declined to
"represent" the grievant?
functions of principals' personal secretaries is
unnecessary.... As a result of the Court's
conclusion[al] presumption of confidentiality
for the personal secretaries of school principals,
the Commission is without any discretion to withhold
a confidential designation for these secretaries.
Evidence in opposition to such designation is
irrelevant in light of the present state of the
law.
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