Public Labor Law



Public Labor Law – Little (summer 2004)

Three Types:

1. Unregulated

Gov’t imposes no restrictions. Working relationships are determined by contract. Employment is at will and on individual terms.

2. Regulated

Parties are not permitted to bargain for more or less than law or regulation will allow. Minimum regulatory standards apply.

A. OSHA

B. ADA (Title I)

C. Title VII-Civil Rights Act of 1964

D. Worker Compensation

3. Semi-Regulated

Is defined as the use of enforced bargaining and collective action in both the private and public sectors.

A. National Labor Relations Act (NLRA)

Regulates the private sector and is the model employed by most states for the public sector law.

B. Railway Labor Act (1926)

A federal law, which regulates the railroad and airline industries.

C. Constitutional Law

State v. Federal law – NLRA is limited to larger companies and companies with a smaller employee base are left to individual states.

Fourteenth Amendment – Imposes restrictions on both federal and state government ability to interfere with a bilateral employment contract.

I. History of Florida Public Employment Law

Article I—Declaration of Rights

§6. Right to Work

The right of persons to work shall not be denied or abridged on account of membership or n0n-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.

Miami Water Works Local No. 654 v. City of Miami (1946)

Union filed suit for an injunction to remove prohibition to negotiations. Court ruled that only private employees have the right to bargain.

The right for public employees to collectively bargain changed much later.

Schermerhorn v. Local 1625 (1962)

Court held: "Agency shop" provision of collective bargaining agreement with employer which required nonunion employees, as condition of employment, to pay to labor union sum equal to initiation fees and monthly dues for union member violated "right to work" provision of Constitution.

Retail Clerks International Ass’n Inc. v. Schermerhorn (1963)

I: Whether the Florida courts have jurisdiction to enforce the states prohibition against an ‘agency shop’ clause in collective bargaining agreements.

H: The U.S. Supreme Court agreed with the Florida Supreme Ct. The Taft-Harley Act does not provide automatic union membership in any State or Territory in which such execution or application is prohibited by State or Territorial law. The Wagner Act does nothing to facilitate closed shop agreements or to make them legal in ANY STATE where it may be illegal.

Congress did not exercise supremacy.

Dade County Teachers Ass’n Inc. v. Ryan

I: Whether one union can act as the sole bargaining agent.

H: Court ruled that the state statute precluded a labor organization from acting as sole bargaining agent for all teachers of school system where all teachers in system had not agreed that organization act as their bargaining agent. F.S.A.Const.1968, art. 1, § 6

The Ryan Court did two things:

i. Protected existing rights

ii. Ruled against sole bargaining agents

Dade County Classroom Teachers Assoc., Inc. v. The Legislature (1972)

I: Whether the Court can compel the Legislature to enact standards or guidelines regulating the right to collective bargaining by public employees, as guaranteed by Section 6, Article I.

H: The court held that judicial implementation of rights in question would be premature, but that the Court will have no choice, if legislature does not extend its time and study into the field within reasonable time, but to fashion guidelines by judicial decree in such manner as may seem to the Court best adapted to meet requirements of the Constitution.

Holding served as a legislative wake up call. The court does not ordinarily have the power to direct the Florida Legislature; however, there are few exceptions. Soon after, 447 provisions were enacted.

Pasco County School Board v. PERC (1978)

Fla. Sec. 447.501 (1) (a)

PERC filed a petition to enforce findings of unfair labor practices by Pasco School Board. The Board filed a petition to review the PERC’s findings

Court held: 1.) Board engaged in unfair labor practice by firing employees engaged in a protected activity. 2) Employer has to prove employee would have been fired regardless of concerted activity. 3) Employee can rebut employer’s evidence as pretext.

II. Right to Organize

447. 301. Public Employees’ rights; organization and representation

Public Employees shall have:

1) The right to form, organize, join, and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.

2) The right to be represented by any employee org. of their own choosing and negotiate collectively, through a certified bargaining agent in terms of grievances on all terms of employment.

3) To engage in concerted activities not prohibited by law.

4) Have the rt. to represent themselves in person or by legal counsel and have grievances adjusted w/o intervention of the bargaining agent. If such adjustments are not congruent with the collective bargaining agreement, the union will be given an opportunity to attend any grievance resolution mtg.

5) Student representatives shall have; access drafts of bargaining agreements, the right to comment on negotiation which will effect the educational environment of students, to be present at negotiations btwn the public employer and the bargaining agent, to be accompanied by alternatives or aides numbering no more than two. Etc. see pg. 11

Cannery, Citrus, Drivers, Warehousemen and Allied Employees of Local 444. v. Winter Haven Hospital, Inc.

I: Whether a union has standing to seek injunctive or other relief on behalf of employees against an employer which is exempt from the NLRA, where there is alleged illegal management coercion while union members were engaged in concerted activities.

H: Under Art. I, s 6, of the Declaration of Rights, a bargaining agent has standing to seek relief against an employer for unfair or illegal labor practices.

447.02, 447.203 (11), 447.305

A bargaining agent must or can be:

1) Register with PERC

2) Be organized for the purpose of dealing with employers concerning hours of employment, rate of pay, working conditions, or grievances of any kind relating to employment and recognized as a unit of bargaining by one or more employers doing business in the state of FL.

3) Any labor org., union, association, fraternal order, occupational or professional society, or group which seeks to represent public employees.

4) Comply with all registration procedures outlined in 447.305 pg. 11 supp.

5) A challenge as to the standing of a bargaining agent must be submitted 90-150 days before the end of the first year.

6) A bargaining contract shall not exceed more than 3 years.

7) Any bargaining agreement has to be ratified by a majority of the public unit.

III. Bargaining Representative; Exclusive Recognition

447.501 outlines public employer unfair labor practices

447.307 pages 12, 13, & 14 of supp. Certification process.

History of employer dominated unions

In the past, employers would initiate organizations to maintain employee domination. Not allowed under 447.501 (1) (e). Dominating, interfering with, or assisting in the formation, existence, or administration of, any employee organization or contributing financial support to such an organization.

School Board of Marion County v. PERC (1976)

I: Whether the public Employees Relations Commission has a statutory duty to allow examination of union authorization cards signed by public employees.

H: A public employer has the right to review signature cards which they believe were obtained by collusion, coercion, intimidation, or misrepresentation or are otherwise invalid.

Florida Public Employees Council 79, AFSCME, AFL-CIO v. Public Employees Relations Commission (2004)

I: Whether the Florida Board of Governors has the constitutional power to certify the Board of Trustees as public employers of their respective universities.

H: The appellate court held that, as the Board of Governors, pursuant to the powers bestowed upon it by the voters of Florida, designated the Boards of Trustees as the public employers of their respective universities; the PERC's order would not be disturbed.

City of Safety Harbor v. Communication Workers of America (1998)

I: Whether the PERC erroneously applied the definition of a “professional employee.”

H: PERC interpretation of 447.203 (13) (a) was in error. Court ordered new election for bargaining unit and that specialized intellectual instruction is not the threshold for the definition of a “professional employee.”

State ex rel. Chiles v. Public Employees Relations Commission (1994)

I: Whether a bargaining can comprise of attorneys who are employed by the state of Florida.

H: The court held that a prohibition of such bargaining unit would be unconstitutional. Article I (6)

Service Employees International Union v. PERC (2000)

I: Are deputy court clerks, unlike deputy sheriffs, public employees within contemplation of section 447.203(3).

H: The case was remanded to determine whether the duties of a clerk fall within the definition of a managerial or public employee.

Coastal Florida P.B.A., v. Williams (2003)

I: Are deputy sheriffs categorically excluded from having collective bargaining rights under chapter 447.203?

H: Deputy Sheriffs are entitled to collectively bargaining rights under the Florida Constitution. The court also stated that the legislature had no compelling interest to exclude deputy sheriffs.

IV. Duty to Bargain

447.501 (1) (c) Duty to bargain in good faith

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.

Duval County School Board v. Florida Public Employees Relations Commission (1978)

I: Whether preparing for a strike can be defined as an unlawful labor practice and if picketing the home of a managerial employee can be deemed as unfair labor practice?

H: The Court ruled that the bargaining agent was not guilty of unlawful labor practices. They reasoned there were no services withheld and preparing for a strike can not be defined as an unlawful act. However, the picketing of the superintendent’s house is in fact an unfair labor practice.

Note: 447 now prohibits any type of activities in preparation for a strike. See 447.509 (1) a, 447.505, 447.507(penalties)

Please note that once a bargaining agent has been certified the public employer has a duty to bargain with such agent during reasonable times and places. (447.309(1))

Good Faith Bargaining 447.203 (17)

A true intent to reach a common accord, have an open mind, a sincere desire and effort to come to an agreement.

Bad Faith Bargaining 447.203 (17)

a) Failure to meet

b) Placing unreasonable restrictions on other party as a prerequisite to meeting

c) Failure to discuss bargainable issues

d) Refusing to negotiate because of an unwanted person on the opposing negotiating team.

e) Refusing, upon reasonable written request, to provide public information, excluding work products as defined in s. 447.605.

f) Refusing to reduce a total agreement to writing.

g) Negotiating directly with employees rather than with the certified bargaining agent.

Pasco County School Board v. PERC (1978)

I: Whether PERC has prosecutorial powers to enforce decision after finding an unfair labor practice. Yes

H: The court ruled that respondent PERC was permitted to prosecute unfair labor practices. The court determined that substantial competent evidence indicated that petitioner's employment decisions were due to the teachers' union activity but vacated and remanded the finding of an unfair labor practice. The court sustained the finding that petitioner violated its statutory duty to bargain, the order's use of the special master's report, and the order's reinstatement of the teachers with back pay.

V. Scope of Bargaining

447.209 , 447.309

Note: Parties must maintain status quo during negotiations.

Four topics regarding collective bargaining:

1. Mandatory subjects can be bargained to impasse. Working hours, conditions and wages are mandatory subjects for collective bargaining.

Fibreboard tests:

a) Is the subject of such vital concern to both labor and management that it is likely to lead to controversy and industrial conflict?

b) Is collective bargaining appropriate for resolving such issues?

2. Prohibited subjects can not be discussed during negotiations. Federal and state laws usually affect areas that are non-negotiable and such items are not subject to arbitration.

3. Permissive subjects are non-mandatory topics which are determined statutorily. Courts have held that a permissive item does not change to a mandatory status due to its inclusion in a collective bargained contract. Also may be removed in subsequent contracts by either party. Neither party can refuse or be forced to discuss such permissive subjects. Doing either can be seen as an unfair labor practice.

4. Unilateral actions - an employer can not take unilateral action with regard to a mandatory subject of bargaining where there has been no bargaining. Employers can unilaterally enact managerial provisions, but have to negotiate issues with the bargaining unit about issues, which may impact working condition before employer enactment.

City of Tallahassee v. PERC

I: Whether a public employer can bargain a statutorily prohibited issue. No.

F: Appellant city filed with the Public Employees Relations Commission, a petition for declaratory statement requesting answers to certain questions relating to a pension plan covered by a city ordinance. PERC held that Fla. Stat. chs. 447.301(2), 447.309(5) removed from public employers the obligation to negotiate over pension plans to the extent that retirement matters were controlled by state statute or local ordinance. It also held that under chpt. 447.301(2), a public employer had no statutory obligation to negotiate over a change in an ordinance or statute affecting pension plans even if the same was amended while a collective bargaining agreement was in effect. On appeal, a district court held that two phrases in the subsections were unconstitutional under Fla. Const. I, § 6, deleted them from the chapter, and reversed appellee's ruling. Appellant city sought further review. The court affirmed, finding that with the exception of the right to strike, public employees had the same rights of collective bargaining as private employees had. The subsections' prohibition of bargaining on retirement matters was an abridgment of the right to collectively bargain.

H: The court affirmed a district court's judgment finding certain portions of two statutes unconstitutional and ruling against appellant city because public employees had the same rights of collective bargaining over retirement matters as private employees under the Florida Constitution.

Note: Florida prohibits negotiating retirement benefits.

Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College (1985)

I: Whether a zipper clause can be bargained to impasse? No.

H: The court held that a bargaining waiver, which should never have been taken to impasse, much less mandated by the Board of Trustees, so tainted the impasse procedure that it is impossible to determine what the parties might have agreed to w/o the dispute over the waiver. The parties had to be returned to the status quo as it existed at the moment the impasse was declared.

City of Casselberry v. Orange County Police Board (1996)

I: Before the court was whether petitioner city, which had established provisions for demotion and discharge of police officers in its civil service ordinance, was required to bargain collectively with respondent union on those issues to the extent of establishing and being subject to alternate grievance procedures. The second issue was whether petitioner committed an unfair labor practice during its negotiations with respondent union where respondent union declared an impasse during discussions about the subject of demotion and discharge grievance procedures.

H: The Florida Supreme Court held that the statute at issue was constitutional and that civil service ordinances did not affect the required bargaining powers between petitioner city and respondent union. The Florida Supreme Court quashed the lower court's finding that petitioner city committed an unfair labor practice during negotiations respondent union. Binding arbitration is an alternative to the civil service appeal procedures. An employee has the chose to use either.

United Teachers of Dade v. Dade County School Board (1986)

I: Whether the legislature and the State Board of Education have intruded on the collective bargaining right guaranteed public employees by enacting and implementing the Master Teacher Program.

H: The payment provided by the Master Teacher Program, Fla. Stat. ch. 231.533, is not a wage, and thus not an abridgment of Fla. Const. art. I, § 6. 

Fraternal Order of Police v. City of Miami (1992)

I: Whether the requirement of drug testing of officers was a matter of management prerogative and not a subject of mandatory collective bargaining.

H: The trial court held that respondent could initiate drug testing among officers who were specifically identified as being drug users. The court approved the ruling because respondent had an interest in maintaining the integrity of the police department.

State v. Florida P.B.A., Inc. (1993)

I: Appellees claimed that appellants' actions abridged their right to collectively bargain, which was guaranteed by the state constitution. The trial court granted summary judgment for appellees. The Supreme Court reversed the trial court's decision declaring Fla. Const. § 9.3 (A) 5 of the 1988 Appropriations Act unconstitutional. The court stated that where the legislature provides enough money to implement the benefit as negotiated, but attempts to unilaterally change the benefit, the changes will not be upheld, and the negotiated benefit will be enforced. Where the legislature does not appropriate enough money to fund a negotiated benefit, as it is free to do, then the conditions it imposes on the use of the funds will stand even if contradictory to the negotiated agreement.

H: Was remanded to trial court to determine whether the legislative appropriation was sufficient to find the annual and sick leave provisions of the collective bargaining agreement. If it was, these provisions of the collective bargaining agreement must be forced. If these provisions were under funded, the legislative determination shall control.

Chiles v. United Faculty of Florida (1993)

I: If the legislature provides enough money to implement a benefit as negotiated, but attempts to unilaterally change the benefit, will the changes be upheld, and the will negotiated benefit be enforced? 

H: The court found that the state was bound by its contract with state workers, as any private employer would have been. The court affirmed the circuit court's decision for appellees, unions representing public employees, and found that appellants, governor and state, violated the Florida constitution when they eliminated raises for the public employees after appellants had agreed to and funded the raises because appellants failed to show they had no alternative means of funding the raises.

VI. Strikes

Art I § 6 Any restriction on the right to bargain collectively must

necessarily violate Fla. Cons. art. I, §6.

447.301(3) Public employees shall have the right to engage in

concerted activities not prohibited by law, for the purpose of

collective bargaining or other mutual aid or protection. Public

employees shall also have the right to refrain from engaging in

such activities.

447.505: Strikes Prohibited

447.507: Violation of Strike Prohibition; Penalties

447.509: Other Unlawful Acts

Duval County School Board v. Florida Public Employees Relations Board

I: Whether respondent union's voting of a no contract-no work

policy was a violation of the strike provision in 447.501(2)(e).

H: The court found that the withdrawal of services was necessary for a strike and the distribution of leaflets was not an unfair labor practice, but was protected under the U.S. Const. amend. I and Fla. Stat. ch. 447.501(3) (1975) · Fla. Stat. ch. 447.501(2)(e) (1975), states that a public employee organization, its representatives and members, are prohibited from participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike.

Strikes & Work Stoppages

· Fla. Stat. ch. 447.501(2)(e) (1975) makes the act of participating in a strike an unfair labor practice. An organization or individual cannot participate in an activity that never occurs. However, it should be noted that the definition of

"strike" was expanded by the legislature in 1977 to include "any overt preparation, including, but not limited to, the establishment of strike funds with regard to the above-listed activities." Fla. Stat. ch. 447.203(6) (1977).

VII. Impasses

Palm Beach Junior College Board of Trustees v. United Faculty of

Palm Beach Junior College

I: Whether a union could contractually waive its right to collective bargaining to the extent that it waived the right to demand collective bargaining to alter the status quo during the term of a contract.

H: The court held that it was an unfair labor practice for a public employer to insist to impasse on a blanket impact bargaining clause.

Note: Impact bargaining is normally required unless a union clearly and unmistakably waives the right to bargain on the matter.

 Impasse Resolution

Fla. Stat. Ch. § 447.403 (4)(d).

Fla. Stat. Ch. § 447.403 (4)(e).

Duty to Bargain

See Fla. Stat. Ch. §447.209 (1981).

Zipper clauses are generally interpreted only to maintain the status quo of a contract, and are not to be used to allow an employer to make unilateral changes in working conditions without bargaining. (Duty to Bargain)

We conclude that a union may contractually waive its statutorily guaranteed right to collective bargaining to the extent that it waives the right to demand bargaining to alter the status quo during the term of the contract. The clear purpose of zipper clauses is to permit both parties to agree to maintain the status quo during the term of the agreement, to prevent either party from seeking to reopen negotiations.

VIII. Administration of Agreement

447.301 Public Employees' Rights; organization & Representation

Duval County School Board v. PERC

I: Whether respondent union's voting of a no contract-no work policy was a violation of the strike provision in ch. 447.501(2)(e).

H: The court found that the withdrawal of services was necessary for a strike and the distribution of leaflets was not an unfair labor practice, but was protected under the U.S. Const. amend. I and Fla. Stat. ch. 447.501(3) (1975)

· Fla. Stat. ch. 447.501(2)(e) (1975), states that a public employee organization, its representatives and members, are prohibited from participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike.

Freedom of Speech > Scope of Freedom

See Fla. Stat. Ch. 447.501(3) (1975).

· While the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution, patrolling is conduct, not speech, and therefore is not directly protected by the U.S. Const. amend. I

· Peaceful picketing, which has as its purpose the subjecting of secondary employers and employees to pressure forbidden under 29 U.S.C.S. § 158(b)(4), is an unfair labor practice and is not protected by the U.S. Const. amend. I.

· Because picketing is not pure speech expressing "arguments or opinions", Fla. Stat. ch. 447.501(3) (1975), picketing is not free of the restraints imposed by Fla. Stat. ch. 447.501(1) (1975). Like other picketing for impermissible reasons, picketing with the purpose or effect of interference, restraint, or coercion is not

protected.

Unfair Labor Practices

Pasco County School Board v. PERC

I: Whether P should be able to review an order from PERC which

found that P committed unfair labor practices against teachers and

union members in violation of the Public Relations Employees Act?

H: The court granted petitioner's request for review was in part and denied in part. Respondents' petition for enforcement was granted as modified.

R: The court ruled that respondent PERC was permitted to prosecute unfair labor practices.

Unfair Labor Practices

· The Public Employees Relations Act, Fla. Stat. ch. 447.503(1) (1975), authorizes the Florida Public Employees Relations Commission (PERC), or its agent, to conduct a preliminary investigation to determine whether there is substantial evidence indicating a prima facie violation of an applicable unfair labor practice provision. If it is determined there is such evidence, PERC or its agent shall cause to be served upon the person charged with the violation a copy of the charges and a notice of the hearing before the commission.

· Fla. Stat. ch. 120.59(1) requires that findings of fact and conclusions of law be separately stated.

· Fla. Stat. ch. 120.57(1)(b)9 allows the agency to adopt the recommended order as the agency's final order or to reject or modify the conclusions of law. It specifically prohibits the agency's rejection or modification of the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order that the findings of fact were not based upon competent substantial evidence.

· The Public Employees Relations Act, Fla. Stat. ch. 447.501(1)(c), prohibits public employers from 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. Fla. Stat. ch. 447.309(1) requires, after an employee organization

has been certified, the respective bargaining agents for the employer and employee shall bargain collectively in the determination of the wages, hours and terms and conditions of employment of the public employees within the bargaining unit

· A school board is statutorily mandated by Fla. Stat. ch. 447.309(1) and Fla. Stat. ch. 447.501(1)(c), to bargain collectively with the union's negotiator in good faith. A board's expressed reason for not bargaining on the ground of its uncertain fiscal future cannot be excused. It is mandated by the act to offer reasonable counterproposals. It is not required to acquiesce to a union's demands.

Duty to Bargain

· An employer's asserted good faith belief that an action is necessitated by the emergency nature of the situation does not excuse its failure to afford the union the opportunity to negotiate the matter. While negotiations need not be exhausted to the point of impasse, some discussion is required prior to changing a condition of employment.

Subjects of Bargaining

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

Duty to Bargain

· A subjective showing of bad faith is not necessary to find a violation of Fla. Stat. ch. 447.501(1)(c), requiring that the parties bargain collectively.

Grievance-Arbitration

Galbreath v. School Board of Broward County

I: Whether a public employer was still obligated to arbitrate a grievance if the grievant submitted it to arbitration because the bargaining agent declined to represent the grievant, believing his grievance to lack merit.

H: The court held that a public employer was not obligated

to arbitrate a grievance where the bargaining agent declined to

represent the grievant, because such action could constitute a

circumvention of the bargaining agent's powers and a unilateral

alteration of the contractual grievance procedure.

Fair Representation

Refusal to Bargain

· Unlike other jurisdictions, Florida law permits a certified bargaining agent to refuse to represent a grievant who is not a member of the certified organization. Fla. Stat. ch. 447.401 (1979) provides, in pertinent part, that all public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or non-membership in any

organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. The Florida Public Employees Relations Commission has concluded that this provision does not serve as a limitation upon the certified bargaining agent's exclusive right of representation. Rather, the proviso simply affords the organization the right to determine whether it desires to exercise its right of exclusive representation on behalf of non-members.

Arbitration > Exhaustion of Remedies

Fair Representation

· When a certified bargaining agent declines to represent a grievant because he or she is not a member of the certified organization, the grievant is entitled to pursue the grievance to arbitration, and the public employer is under a concomitant obligation to process the grievance in accordance with the terms

set forth in the agreement. Therefore, the grievant's right to a fair and equitable grievance procedure mandated by Fla. Stat. ch. 447.401 (1979) is protected by allowing the grievant to either represent himself or to seek outside representation, for the purpose of pursuing the grievance in accordance with the procedures set forth in the collective bargaining agreement.

Fair Representation

Refusal to Bargain

· It is inconsistent to require, on the one hand, an exclusive bargaining agent to fairly represent all bargaining unit employees in collective bargaining negotiations and administration of a collective bargaining agreement and, on the other hand, to allow individual employees to advance grievances which may assert an interpretation of that agreement contrary to that of the bargaining agent and possibly the employer. Under such a scheme, the bargaining agent's status as exclusive representative in the determination of wages, hours and terms and conditions of employment is emasculated because the employer would be required to process through arbitration every individual grievance upon request, regardless of merit. Such individual grievance processing is in effect individual negotiations between the employer and the employee regarding the subject matter of the grievance.

Fair Representation

Refusal to Bargain

· There are important practical reasons for limiting access to the arbitration machinery of contractual grievance procedures. Unlimited individual access would allow every employee, regardless of motive, to compel arbitration proceedings where the parties who negotiated the collective bargaining agreement deemed such proceedings unwarranted. The potential for harassment of the union and the employer, to the detriment of all concerned, from disgruntled individuals is very real. Furthermore, one need not be very experienced in labor relations to realize the attractiveness to a rival or a minority union of being able to compete with the incumbent union for members by indirectly processing grievances, regardless of merit, through an individual member.

Fair Representation

Refusal to Bargain

· If individual employees may, at their whim, compel arbitration of all grievances regardless of merit and contrary to the desires of the employer and the bargaining agent, significant public funds will be spent on expensive arbitration proceedings which would otherwise not be expended. The parties to the collective bargaining agreement would therefore have less funds available for truly meritorious grievances and the employer might be compelled to settle non-meritorious grievances contrary to a reasonable interpretation of the collective bargaining agreement to avoid expense, thereby establishing an erroneous precedent applicable to subsequent grievances.

Refusal to Bargain>Arbitration > Limits

· Where the parties' collective bargaining agreement reserves to

the certified bargaining agent the exclusive right to submit

grievances to arbitration, a public employer is not obligated to

process an individual's grievance to arbitration if the certified

bargaining agent has declined to advance the grievance because of

its belief that the grievance lacks merit. Indeed, if the public

employer does process such a grievance to arbitration at the

individual's request it might well violate Fla. Stat. §

447.501(1)(a), (c) (1979). Such action could constitute

circumvention of the bargaining agent and a unilateral alteration

of the contractual grievance procedure.

· Where the parties' collective bargaining agreement reserves to

the certified bargaining agent the exclusive right to submit

grievances to arbitration, a public employer is not obligated to

process an individual's grievance to arbitration if the certified

bargaining agent has declined to advance the grievance because of

its belief that the grievance lacks merit. Indeed, if the public

employer does process such a grievance to arbitration at the

individual's request it might well violate Fla. Stat. §

447.501(1)(a), (c) (1979). Such action could constitute

circumvention of the bargaining agent and a unilateral alteration

of the contractual grievance procedure.

PERC Proceedings

PERC v. Dade County Police Benevolent Association

I: Whether PERC could overturn its hearing officer’s recommendations if the officer misapplied the law of agency to his findings of fact.

H: The court quashed the district court of appeal's decision, holding that petitioner commission was entitled to overturn its hearing officer's determination of agency in light of what petitioner perceived to be the applicable law and relevant policy considerations.

Administrative Law > Judicial Review > Reviewability > Questions

of Law

· The determination as to how the law of agency should be applied is an interpretation of law and policy and not a determination of fact. Fla. Stat. ch. 120.68(7) (1983).

Administrative Law Agency Rulemaking > Rule Application &

Interpretation >

· The Florida Public Employees Relations Commission (Commission) finds the ultimate authority to administratively interpret Fla. Stat. ch. 447 and Fla. Const. art. I, § 6, which deal with state regulation of labor organizations, resides with the Commission and not a hearing officer. The Commission has the principal responsibility of interpreting the statutory provisions consistent

with the legislature's intent and objectives. The Commission has the authority to overrule a statutory interpretation made by one of its hearing officers.

Administrative Law > Judicial Review > Standards of Review

· A reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.

City of Miami v. Fraternal Order of Police

I: Whether petitioner commission had the authority under Fla. Stat. ch. 447 et seq. (1985) to defer a ULP charge to arbitration.

H: The court held that under Fla. Stat. ch. 447.401 (1985), requiring public collective bargaining agreements (CBA) to contain an arbitration clause, petitioner commission's policy of deferring disputes that could be resolved by arbitration was appropriate. While respondents characterized the dispute as a ULP, it actually involved the interpretation of a provision in the CBA relating to

insurance premiums, which could be resolved through arbitration.

Unfair Labor Practices

· When a charge is, in fact, based on an unfair labor practice as set forth in Fla. Stat. ch. 447.501 (1985), Public Employees Relations Commission (commission) has no authority to delegate its responsibility. Fla. Stat. ch. 447.503 (1985) clearly sets forth the commission's duty in this context: it is the intent of the Florida legislature that the commission acts as expeditiously as possible to settle disputes regarding alleged unfair labor practices.

Arbitration

· Under the mandates of Fla. Stat. ch. 447.401 (1985), each collective bargaining agreement entered into between a public employer and its employees must contain a grievance procedure to be used for settling disputes involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties.

Arbitration

· Public Employees Relations Commission has the authority to defer to arbitration in appropriate cases in order to give effect to the provisions of Fla. Stat. ch. 447.401 (1985), mandating a grievance procedure culminating in final and binding arbitration for interpreting or applying a collective bargaining agreement.

Duty to Bargain

Unfair Labor Practices

· A unilateral change in a term or condition of employment constitutes an unfair labor practice; an employee insurance program is such a term or condition of employment. However, a collective bargaining agreement which clearly and unmistakably shows that the employees' certified bargaining agreement has

waived its right to bargain over this issue does not constitute an unfair labor practice. In labor law nomenclature waiver may occur when the parties by express contractual provision confer on the employer the power of unilateral decision.

Collective Bargaining Enforcement

· The Public Employees Relations Commission in interpreting its statutory duties must strive to give effect to all the various provisions of Fla. Stat. ch. 447 et seq.

Collective Bargaining Enforcement

· The Public Employees Relations Commission's (commission) policy of deferral represents a reasonable method for commission to give effect to all of its statutory duties, particularly the mandatory requirements of Fla. Stat. ch. 447.401 (1985).

Arbitration > Limits

· Arbitration is guaranteed to public employees by Fla. Stat. ch. 447.401 (1985); there is no such provision in private sector labor law.

Administrative Law > Formal Rulemaking

· Fla. Stat. Ch. 447.207(6) (1985) exempts Public Employees

Relations Commission from the requirement that statements of

general applicability that implements, interprets, or prescribes

law or policy must be promulgated as a rule.

Arbitration

· The Public Employees Relations Commission has the authority for

deferral in order to give effect to the various provisions of Fla.

Stat. ch. 447 et seq. (1985), in particular the mandatory

requirement of final and binding arbitration concerning

interpretations of a collective bargaining agreement set forth in

Fla. State. ch. 447.401 (1985).

447.504 Judicial Review

PERC v. City of Orlando

I: Whether PERC could be designated as a party appellee in a

proceeding to review an unfair labor practice order it issued

against City of Orlando.

H: The court quashed the order of the lower court, holding

petitioner Public Employee Relations Commission should be made a

party appellee in any future review proceedings upon request or

upon the designation of the party seeking review.

· PERC has the statutory power to seek enforcement of its orders in circuit court. If an appeal from the same order is pending in a district court of appeal, then the district court of appeal must transfer and consolidate the appeal and the enforcement action. § 447.5035, Fla. Stat.· section 447.504, Florida Statutes (1981), requires PERC to be designated as a party appellee in review proceedings.

Hillsborough County Governmental Employees v. Hillsborough County Aviation Authority

I: Whether employers had committed an unfair labor practice by refusing to implement the new provisions under the parties' collective bargaining agreement.

H: The appellate court remanded for disposition consistent with its conclusion that Fla. Stat. ch. 447.309(3) was unconstitutional as applied, noting that the administrative order was to be given only prospective effect because respondents were not to be held to have committed an unfair labor practice where the existing law in the district court of appeals had validated their position.

Collective Bargaining Enforcement

See Fla. Stat. ch. 447.309(3).

Collective Bargaining Enforcement

· Fla. Stat. ch. 447.309(3) clearly provides that collective

bargaining agreements do not become effective unless and until the

appropriate governmental body makes the necessary amendments.

Governments > State & Territorial Governments > Employees &

Officials

See Fla. Stat. ch. 447.601.

Duty to Bargain

· As part of the Florida Constitution's "Declaration of Rights," Fla. Cons. art. 1, § 6 guarantees all persons the right to bargain collectively with their employers. This right applies to apply to public employees as well as those working in the private sector.

Governments > Employees & Officials

· Fla. Cons. art. III, § 14 authorizes the legislature to create local civil service systems for state, county, district, or municipal employees.

Right to Organize·

Strikes & Work Stoppages

· 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. Fla. Cons. art. I, § 6.

Collective Bargaining Enforcement

The plain language of Fla. Stat. ch. 447.309(3) provides that the governmental body possessing amendatory power over the civil service rules and regulations may exercise discretion over whether the rules will be amended.

Duty to Bargain

· Fla. Cons. art. I, § 6 grants public employees the same right to bargain collectively with their employers as that granted to private employees.

· Any restriction on the right to bargain collectively must necessarily violate Fla. Cons. art. I, § 6.

· The right to bargain collectively is, as a part of the Florida Constitution's declaration of rights, a fundamental right. As such it is subject to official abridgement only upon a showing of a compelling state interest.

Collective Bargaining Enforcement

· A public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms and

conditions of employment, despite the fact that such

implementation may conflict with applicable civil service board

rules

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