Unfair Labor Practices in Florida's Public Sector Workplaces.

Author:Morton, Gregg Riley

Many attorneys, regardless of their practice area, will at some point in their career be faced with issues involving labor and employment law. These issues can come from a client that hired the attorney for another matter, volunteer work, or from an attorney's own place of employment. Wherever people are employed, there is a potential for conflicts and for strained relationships to develop into legal problems. For attorneys unfamiliar with labor law and the relationships between groups of unionized employees and their employers, the concepts can seem especially foreign. From contracts that survive past their termination date to limitations on how an employer can react to an employee's criticisms of the workplace, there are many issues that can ensnare unsuspecting employers or employees. Such issues are often more complex in the public employment setting where the rights of employers and employees are tempered by additional constitutional and statutory limitations. This article shines a clarifying light on one specific area of traditional labor law, that of the unfair labor practice, and provides a basic understanding of public sector unfair labor practices, including the law that applies and some of the most common charges. While it is not an exhaustive look at any particular category of unfair labor practice, the reader should come away with some of the basic concepts and terms that apply to this unique sector of the law.

Any discussion of Florida public sector labor law starts with the applicable constitutional provision. Fla. Const. art. I, [section]6, is titled, "Right to Work," and provides:

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.

This provision was placed in the Florida Constitution in 1968. However, it took several years, a teacher's strike, and two trips to the Florida Supreme Court before the language was implemented and codified into statute. (1) In 1973, the Florida Legislature passed the Public Employees Relations Act (PERA or the act). (2) In the statement of policy, the legislature recognized that the purpose of PERA was to implement Fla. Const. art. I, [section]6, with respect to public employees as well as "to promote harmonious and cooperative relationships between government and its employees, both collectively and individually; and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government."

Through PERA, the legislature created the Public Employees Relations Commission (PERC or the commission) as the agency that implements the state's public sector labor policy. Unlike many other state agencies, PERC is quasi-judicial. One of its main functions is to resolve public sector labor disputes and help effectuate the harmonious and cooperative relationship referenced by the legislature. PERC is made up of three commissioners appointed by the governor for overlapping terms of four years. One of the commissioners is designated as the chair and serves as the chief executive and administrative officer of the agency. PERC also employs eight hearing officers, who are members of The Florida Bar with more than five years of experience.

Sufficiency Review Process

All of the statutory bases for filing unfair labor practice charges are located in F.S. [section]447.501(1) and (2) (2018). The violations are divided into charges that can be brought against a public employer and charges that can be brought against an employee organization. After a charge is filed against a public employer or union, the commission is statutorily required as an initial step to evaluate the allegations for sufficiency before allowing the claims to proceed to a hearing. (3) Sufficiency determinations are generally made by the commission's general counsel acting as the commission's designated agent for that purpose. (4) The sufficiency process operates in some ways like the summary judgment process in court, with the exception that the party that the charge is filed against is not offered an opportunity to respond. At the sufficiency phase, a charge may be summarily dismissed for several reasons, including the merits of the allegations raised. In addition to the merits, the commission must also consider various statutorily codified technical requirements in evaluating a charge's sufficiency. (5)

As an initial matter the charging document must state allegations giving rise to the dispute in a "clear and concise statement." This statement must include the names of individuals involved and reference specific provisions of [section]447.501 that have been violated. While the allegations should be sufficiently pled in the charging document, sworn statements and supporting documentation should also be included to support a prima facie violation of the unfair labor practice provision.

In 2012, the Florida Supreme Court clarified the standard that the commission applies in sufficiency reviews of certain types of unfair labor practice charges, particularly those involving retaliation. (6) Under this new standard, charging parties must show that they 1) engaged in protected concerted activity; 2) they were thereafter subjected to an adverse employment action by their employer; and 3) there is a causal link between the protected concerted activity and the employment action. (7) While no formal study exists for charges filed after 2012, the new standard is more lenient and should result in more charges being found sufficient to proceed to a hearing on the merits.

In addition to showing a prima facie violation of one of the provisions of F.S. [section]447.501, charges must also be signed and notarized by someone familiar with the facts or be accompanied by sworn statements from...

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