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Public Employees Relations Commission Update

Public Employees Relations Commission Update. Stephen A. Meck, General Counsel, PERC Gregg Morton, Hearing Officer, PERC. Brief History of PERC. 1968 - Article I, Section 6, Florida Constitution entitled “Right to Work”:

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Public Employees Relations Commission Update

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  1. Public EmployeesRelations Commission Update Stephen A. Meck, General Counsel, PERC Gregg Morton, Hearing Officer, PERC

  2. Brief History of PERC • 1968 - Article I, Section 6, Florida Constitution entitled “Right to Work”: The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

  3. Brief History of PERC (continued) • 1972 - Dade County CTA v. Fla. Legislature, 269 So. 2d684 (Fla. 1972) • 1974 - Public Employees Relations Act (PERA), Chapter 447, Part II, Florida Statutes • Jurisdiction to hear Representation and Unfair Labor Practice Cases arising out of PERA • 1977 and 1979 changes to organization

  4. Brief History of PERC (continued) • 1986 - Commission is given jurisdiction over Career Service appeals, § 110.227, Fla. Stat. • Subsequently given jurisdiction over: • Veteran’s Preference Appeals, Ch. 295, Fla. Stat • Whistleblower Act Appeals • Drug-Free Workplace Act Cases, § 112.0455, Fla. Stat. • Age Discrimination pursuant to § 112.044, Fla. Stat., and appeals regarding termination or transfer of employees aged 65 and over pursuant to § 110.124, Fla. Stat.

  5. PERC as Currently Organized • Members of Commission – Chair and two Commissioners appointed by the Governor • Eight Hearing Officers that preside over Labor and Employment Cases • Clerk’s Office • Elections Division • Registration of Unions • Impasse Resolution and Mediation

  6. Representation Cases • Commission certifies a particular union to be the bargaining agent for a specific group of employees • Showing of Interest • Contract and Election/Certification Bars • Unit Composition • Community of Interest among proposed unit employees (e.g., professionals and non-professionals, public safety personnel) • Fragmentation • Supervisory Conflicts • Managerial and Confidential Designations • If proper, unit is approved and election held

  7. PERC UnfairLabor Practice Cases • Charges Against Employer • Charges Against Union • Arranged by Statutory Provision • Recent Cases

  8. Unfair Labor Practices Against Employer by Statutory Provision

  9. § 447.501(1)(a), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

  10. Koren v. School Board of Miami Dade County, 97 So. 3d 215 (Fla. 2012) • Impacts the standard that PERC should apply in evaluating the sufficiency of unfair labor practice charges • Teacher alleged that he had been discriminated against for engaging in protected concerted activity • General Counsel issued summary dismissal based on Pasco test and Third DCA affirmed • Florida Supreme Court accepted based on conflict with Second DCA’sGibbons decision

  11. Koren (continued) • Supreme Court approved the sufficiency standard from Gibbons: [P]roof of a prima facie case of retaliation requires a showing that: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action. • Reversed 3rd DCA and remanded to Commission • Significant change to the sufficiency review process

  12. Orange County Classroom Teachers Association, Inc. v. School District of Orange County, 40 FPER ¶ 151 (2013), Case No. CA-2013-030, appeal docketed, No. 5D13-3507 (Fla. 5th DCA Oct. 10, 2013). • Collective Bargaining Agreement had provision to use school district’s email system with limitations • School District adopted policy that limited use to union members, excluding other members of the bargaining unit • Commission found that the limitation constituted a ULP and awarded fees to the union • On appeal with the 5th District Court of Appeal

  13. § 447.501(1)(b), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: (b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.

  14. International Union of Police Associations, AFL-CIO v. Sheriff of Lee County, 40 FPER ¶ 172 (2013), Case No. CA-2013-023. • Sheriff paid bonuses to all employees that were unrepresented and denied bonuses to represented employees • Union filed a ULP charge arguing that status quo was for all employees to receive bonuses and that Sheriff was motivated by anti-union animus • Commission determined there was no past practice, but that anti-union statements were not protected and were a ULP • Fees were awarded • Sheriff was given the option of recouping bonuses or paying uniform bonuses to all employees

  15. § 447.501(1)(c), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

  16. Financial Urgency Cases • Section 447.4095, Florida Statutes: In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency. If after a reasonable period of negotiation which shall not exceed 14 days, a dispute exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.

  17. Walter E. Headley, Jr., Miami Lodge #20, Fraternal Order of Police Inc. (FOP) v. City of Miami, Case No. 38 FPER ¶ 330, CA-2010-119 (2012), affirmed 118 So. 3d 885(Fla. 1st DCA 2013). • First Commission decision in series of cases involving Section 447.4095, Fla. Stat. • Commission determined that declaration of financial urgency was appropriate – decision was appealed • First DCA agreed and affirmed the Commission’s Final Order • Pending petition for discretionary review at the Florida Supreme Court

  18. Hollywood Fire Fighters Local 1375, IAFF, Inc. v. City of Hollywood, 39 FPER ¶ 54, CA-2011-101, reversed, 39 Fla. L. Weekly D107 (Fla. 4th DCA Jan. 8, 2014) • Commission found financial urgency was properly invoked under the same definition as Headley case • Union appealed to Fourth DCA • Court determined that Florida Supreme Court’s decision in Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla.1993) required demonstrating that funds were not available from other source • Reversed and remanded to PERC to apply the Chiles standard to determine whether City engaged in a ULP • Certified conflict with the 1st DCA’s Headleydecision • Expected to be taken to Florida Supreme Court

  19. Miami Association of Fire Fighters, Local 587, of the International Association of Fire Fighters of Miami, Florida v. City of Miami, 38 FPER ¶ 352 (2012); City of Miami v. Miami Association of Fire Fighters, Local 587, of the International Association of Fire Fighters of Miami, Florida, 38 FPER ¶ 353 (2012) • Second financial urgency decision from Commission, which ruled in favor of City’s decision to declare financial urgency • On appeal at the 3rd DCA • Oral argument held, decision pending • Question of whether the 3rd will follow 1st or 4th DCA, or come up with another approach

  20. Collier Professional Firefighters and Paramedics, International Association of Firefighters, Local 2396, AFL-CIO v. East Naples Fire Control & Rescue District, 40 FPER ¶ 176 (2013), Case No. CA-2012-024, appeal docketed2D13-5551. • Another finan­cial urgency declaration case. • Commission applied standard from Headley and concluded employer did not commit ULP by declaring financial urgency • The Commission also stated that the legis­lature does not require that an employer follow the impasse proce­dure set forth in Section 447.403, Florida Statutes, as a condition prece­dent to availing itself of the ability to address a current financial urgency pursuant to Section 447.4095, Florida • Commission determined employer committed a ULP by unilaterally changing articles in the expired collective bargaining agree­ment • Case in on appeal at the 2nd DCA • Stayed pending the Supreme Court’s decision to accept or decline jurisdiction of the 1st DCA Headley decision

  21. Orange County Classroom Teachers Association, Inc. v. School District of Orange County, 40 FPER ¶ 157 (2013), Case No. CA-2013-029, appeal docketed, No. 5D13-3609 (Fla. 5th DCA Oct. 16 2013). • Union’s registration had lapsed, but it was still the certified bargaining agent for a unit of school teachers • District treated lapse in registration as equivalent of decertification and refused to bargain with union and threatened to cancel dues deduction • Based on settled Commission precedent, Commission found ULP and awarded fees against school district • On appeal with the 5th District Court of Appeal

  22. Teamsters, Chauffeurs and Helpers, Local Union No. 79 v. Hillsborough Area Regional Transit Authority, 40 FPER ¶ 163 (2013), Case No. CA-2013-015 • Two bargaining unit members were disciplined for running red lights • The hearing officer determined that the charge should be dismissed as untimely • Even if timely, union should have known the past practice of disciplining red-light violators and had waived any right to bargain through inaction • Attorney’s fees were awarded to employer

  23. Marion Education Association v. School District of Marion County, 40 FPER ¶ 177 (2013), Case No. CA-2013-014. • School District hired personnel into classifications of substitute teachers for vacant teacher positions • Substitutes were doing work performed by bargaining unit members, but School District did not recognize them as being in the unit • Commission found that District committed a ULP when it hired substitutes instead of employees covered by the contract • Retitling of positions outside the unit is not a management right • Attorneys fees awarded against the School District

  24. Dade County Police Benevolent Association, Inc. v. Miami-Dade County Board of County Commissioners, 40 FPER ¶ 198 (2013), Case No. CA-2012-021, appeal docketed1D13-6108 (Fla. 1st DCA December 19, 2013) • Commission found county committed ULP by issuing layoff notices to after promising not to do so. • The union and the county negotiated a tentative agreement, and the union agreed to concessions to avoid layoffs. • The legislative body (BOCC) resolved insurance impasse issue at a public hearing by imposing no health care contribution. • Mayor vetoed the resolution imposing no contribution and issued layoff notices to police officers. BOCC revisited issue and imposed 4% contribution • A majority of the Commission concluded that the BOCC was an independent body from the mayor and complied with a strict duty of fairness despite the mayor’s veto of the county’s resolution concerning employee health care contributions.

  25. Levy County Education Associa­tion v. School District of Levy County, 40 FPER ¶ 218 (2013), Case No. CA-2013-042. • The Commission found school district committed ULP by refusing to resume bargaining and by implementing a collective bargaining agreement after flawed ratification vote • The Commission determined that the proper remedy was to rescind the school district’s unlawful action. • The Commission denied the union’s request for prevailing party attorney’s fees.

  26. § 447.501(1)(d), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: . . . (d) Discharging or discriminating against a public employee because he or she has filed charges or given testimony under this part.

  27. § 447.501(1)(e), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: . . . (e) Dominating, interfering with, or assisting in the formation, existence, or administration of, any employee organization or contributing financial support to such an organization.

  28. § 447.501(1)(f), Fla. Stat. (2013): (1) Public employers or their agents or representatives are prohibited from: . . . (f) Refusing to discuss grievances in good faith pursuant to the terms of the collective bargaining agreement with either the certified bargaining agent for the public employee or the employee involved.

  29. Orange County Classroom Teachers Association v. School District of Orange County, 40 FPER ¶ 23 (2013), CA-2012-080, per curiamaff’d, 5D13-2153 (Jan 28, 2014) • Charging parties had a prior grievance related to similar issue • Employer failed to send grievances to arbitration arguing earlier grievance procedurally precluded new grievances • Commission determined that employer’s failure to send grievances to arbitration was a ULP • Procedural issues are appropriately decided by arbitrator under Pensacola Junior College Faculty Association v. Pensacola Junior College Board of Trustees, 50 So. 3d 700, (Fla. 1st DCA 2010) • Attorney’s fees awarded

  30. Eguino, Spira, and Chang-Muy v. City of Miami, 40 FPER ¶ 185 (2013), Case Nos. CA-2013-037, CA-2013-038, and CA-2013-039, appeal docketed3D13-3067 (3rd DCA Dec. 6, 2013). • Charging parties did not allege a (1)(f) violation but (1)(a) covered as a derivative charge • Employer failed to send grievances to arbitration arguing various procedural arguments as to why arbitration was inappropriate • Commission determined that employer’s failure to send grievances to arbitration was a ULP • Procedural issues are appropriately decided by arbitrator under Pensacola Junior College Faculty Association Attorney’s fees awarded

  31. Unfair Labor Practices Against Union by Statutory Provision

  32. § 447.501(2)(a), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part or interfering with, restraining, or coercing managerial employees by reason of their performance of job duties or other activities undertaken in the interests of the public employer.

  33. § 447.501(2)(b), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (b) Causing or attempting to cause a public employer to discriminate against an employee because of the employee's membership or nonmembership in an employee organization or attempting to cause the public employer to violate any of the provisions of this part.

  34. § 447.501(2)(c), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: . . . (c) Refusing to bargain collectively or failing to bargain collectively in good faith with a public employer.

  35. § 447.501(2)(d), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (d) Discriminating against an employee because he or she has signed or filed an affidavit, petition, or complaint or given information ortestimony in any proceedings provided for in this part.

  36. § 447.501(2)(e), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (e) Participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike. Any violation of this paragraph shall subject the violator to the penalties provided in this part.

  37. § 447.501(2)(f), Fla. Stat. (2013): (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from: (f) Instigating or advocating support, in any positive manner, for an employee organization's activities from high school or grade school students or students in institutions of higher learning.

  38. Website

  39. http://perc.myflorida.com

  40. PERC News

  41. Questions?

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