Unfair Labor Practices in Florida’s Public Sector Workplaces
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, §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. In 1973, the Florida Legislature passed the Public Employees Relations Act (PERA or the act). In the statement of policy, the legislature recognized that the purpose of PERA was to implement Fla. Const. art. I, §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. §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. Sufficiency determinations are generally made by the commission’s general counsel acting as the commission’s designated agent for that purpose. 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.
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 §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. 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. 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. §447.501, charges must also be signed and notarized by someone familiar with the facts or be accompanied by sworn statements from individuals familiar with the facts. Additionally, there is a brief statute of limitations on the filing of an unfair labor practice charge. To be timely, the charge must be filed within six months of the events giving rise to the alleged unfair labor practice, unless the filing was delayed by service in the armed forces. This six-month period is initiated when the charging party “knew or should have known” of the complained of actions. While events that occurred earlier can be considered by the hearing officer and the commission, they cannot serve as the basis for a violation.
Finally, the act also contains an election of remedies provision that permits an employee to utilize a civil service appeal procedure, a grievance procedure, or an unfair labor practice procedure. Once a particular procedure is selected, the employee is precluded from availing himself or herself of the other procedures. The purpose of the election of remedies provision is to prevent an employee from being able to litigate the same issue multiple times in different forums.
Charges Related to Bargaining
After a bargaining unit of public employees has been defined and the commission has certified an employee organization to represent those employees, the public employer and the employee organization will enter into negotiations. Ideally, the end result of those negotiations is a written collective bargaining agreement (CBA) that governs the parties’ relationship.
The act defines “collective bargaining” to include the requirement that the parties agree to meet at reasonable times and negotiate in good faith. The act goes on to define “good faith bargaining” as requiring the parties in the collective bargaining process to “participate actively in the negotiations with an open mind and a sincere desire, as well as making a sincere effort, to resolve differences and come to an agreement.” If either party believes that the other is not bargaining in good faith, they can file an unfair labor practice alleging bad-faith bargaining. In determining whether a party failed to bargain in good faith, the commission is required to consider the total conduct of the parties during negotiations as well as specific incidents of alleged bad faith. The act lays out certain indicia of bad faith, specifically noting that the list is not exclusive or limited to the items listed. The incidents of bad faith include 1) failing to meet at reasonable times and places with representatives of the other party; 2) placing unreasonable restrictions on the other party as a prerequisite to meeting; 3) failing to discuss bargainable issues; 4) refusing to provide public information upon written request; 5) refusing to negotiate because of an unwanted person on the opposing negotiating team; 6) negotiating directly with employees rather than with their certified bargaining agent; and 7) refusing to reduce a total agreement to writing.
Even in the absence of bad faith, the bargaining process can still break down. If the two sides find themselves unable to reach an agreement on a particular issue, the act permits parties to declare an impasse, which in turn triggers a resolution process outlined in detail in the act. Ultimately, if the impasse process is properly followed, an employer can impose certain conditions. While a detailed recitation of this process is beyond the scope of this article, for purposes of avoiding an unfair labor practice charge, a party can only declare impasse after a “reasonable period of negotiation,” which is not expressly defined under the act. If a party believes that impasse has been declared too soon, the party can file an unfair labor practice charge alleging premature declaration of impasse. In order to sustain this type of charge, the charging party must demonstrate that a reasonable period of negotiation has not transpired. There is no “magic number” of bargaining sessions that have to occur before impasse can be declared. To sustain a charge, the charging party must establish that the respondent refused to meaningfully negotiate mandatory subjects of bargaining by declaring impasse before those issues were negotiated.
Another common unfair labor practice charge related to bargaining comes from the negotiation of waivers of certain bargaining rights. These waivers are desirable to management because they allow management to implement goals during the terms of the CBA without having to undergo additional rounds of negotiation. However, the waivers must be clear and unmistakable. Moreover, if management is unsuccessful in negotiating a waiver, it cannot impose a waiver of the right to bargain over changes in wages, hours, and terms and conditions of employment through the impasse process. In doing so, the employer commits an unfair labor practice. However, it is not an unfair labor practice to impose language that constitutes a management right.
Another common unfair labor practice charge brought before the commission involves allegations that a public employer unilaterally made a change to employees’ wages, hours, or terms and conditions of employment without providing notice to the employee organization and providing an opportunity to conduct meaningful negotiations before implementing the change. Absent clear and unmistakable waiver, exigent circumstances, or legislative body action after a bargaining impasse, changes in the status quo of wages, hours, and terms and conditions of employment cannot be made by a public employer without providing notice to the employees’ bargaining agent, and an opportunity to conduct meaningful negotiations, before implementing the change. A unilateral change constitutes a per se violation of F.S. §447.501(1)(a) and (c). Furthermore, there does not need to be an initial CBA in place for an employer to make an illegal unilateral change. During the negotiations for an initial CBA, the parties are expected to follow the status quo in place. The commission will consider the past practices of the parties in determining the status quo. If an employer makes a unilateral change to wages, hours, or terms and conditions of employment during the pendency of negotiations for the first CBA, it will constitute an unfair labor practice.
Protected Activity and Charges
Perhaps the most common type of charge seen by the commission involves allegations that a public employer has retaliated against an employee or somehow interfered, coerced, or restrained the rights guaranteed by F.S. Ch. 447, Part II. To prove that these actions rise to the level of an unfair labor practice, the commission applies the two-prong Pasco test. Under the first prong of the test, the charging party must prove by a preponderance of the evidence that 1) his or her conduct was protected; and 2) his or her conduct was a substantial or motivating factor in the decision taken against him by the employer. Under the second prong, if the charging party successfully demonstrates that the employer was motivated by a nonpermissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In practice, many charges do not survive the first prong of the Pasco test because the employee in question is making allegations that apply to his or her circumstances rather than concerted activity involving others.
While individual actions may constitute concerted activity if that activity encompasses the well-being of fellow employees, when an employee engages in activity for his or her benefit alone, such conduct is not concerted, and therefore, not protected. Employees with the best chance of satisfying the first prong of the Pasco test often have some type of official capacity in the employee organization. While this alone is not enough to demonstrate an unfair labor practice and should not chill legitimate discipline, in disciplining an employee that has engaged in protected activity, employers should be cautious and document the permissible reasons for taking the action.
One of the statutory requirements under the act is that public employers and employee organizations must negotiate a grievance procedure to be used for the settlement of disputes between the employer and employee, or group of employees, when it comes to the interpretation or application of a CBA. The act also requires that the grievance procedure must have as its terminal step a final and binding disposition by an impartial neutral mutually selected by the parties. Disputes surrounding the processing of grievances can frequently result in the filing of an unfair labor practice charge.
F.S. §447.501(1)(f) prohibits a public employer from “[r]efusing 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.” The commission applies the Westfall test to these types of charges, which requires the charging party to demonstrate that 1) the grievance at issue arguably involves the interpretation or application of the collective bargaining agreement; and 2) the employer prohibited the employee from fully utilizing the contractual grievance procedure by the manner in which it handled the grievance at some level, usually at the final arbitration step.
Part of the reason these unfair labor practice charges are common is because of the strong bias toward having even questionable grievances proceed to arbitration and for the arbitrator to resolve collateral issues around the grievance, rather than the commission. In resolving a charge alleging a refusal to arbitrate a grievance, the commission examines the language of the collective bargaining agreement to determine if the grievance is “arguably arbitrable.” A grievance is arguably arbitrable unless the commission can say with positive assurance that the arbitration clause of the collective bargaining agreement may not be interpreted in a way to cover the dispute. In deciding whether the parties have agreed to submit a particular grievance to arbitration, the commission is not to rule on the potential merits of the underlying claims. Even claims that appear to be frivolous should be permitted to proceed to arbitration. This forgiving standard, which promotes erring on the side of sending even grievances that appear to lack merit to arbitration, can easily result in an unfair labor practice violation by the employer, even if the arbitrator rules in the employer’s favor on the merits of the underlying grievance. Thus, even when there are doubts about the arbitrability of a grievance, employers may want to err on the side of sending the grievance to arbitration and presenting their arguments about arbitrability to the arbitrator to avoid an unfair labor practice charge.
Denial of Representation
Another frequent unfair labor practice charge involves allegations that an employee was denied his or her right to representation in disciplinary meetings. This right is commonly known as the Weingarten right, named for the decision in the U.S. Supreme Court case NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Employees that exercise their Weingarten right are entitled to representation, if requested, at any investigatory interview if the employee reasonably believes the interview will result in disciplinary action and the exercise of the right will not interfere with legitimate employer prerogatives. However, the right does not extend to meetings where questions are not being asked or where discipline is being administered after an investigation has been completed.
While historically this representation has been provided by union officials to members, the commission has expanded the right to representation to include other members of the bargaining unit regardless of their union membership. Whether an unfair labor practice can be proven largely revolves around the facts present in the specific case before the commission. To avoid exposure to this type of charge, some public employers err on the side of allowing employees to have representatives present even if the meeting in question technically does not require the Weingarten right to be honored.
Breach of the Duty of Fair Representation
Finally, one of the more common charges brought against an employee organization revolves around its obligation to provide fair representation to all bargaining unit employees. The duty only exists over matters where the employee organization has exclusive control, such as negotiating a CBA or enforcing the CBA through the grievance procedure. A violation of the duty of fair representation occurs when the employee organization in its representational capacity engages in conduct that is arbitrary, discriminatory, or taken in bad faith. The commission has defined arbitrary conduct as action taken without a rational or proper basis.
These charges often arise when there is a dispute over the handling of an employee’s grievance. When reviewing an employee organization’s judgment on a particular matter or decision, the commission will ascertain whether the decision falls within a “wide range of reasonableness.” In cases in which an employee merely disagrees with the manner in which a matter was handled, and even in situations in which a union representative may have been negligent, the commission will not find a breach of the duty of fair representation.
Once a charging party has established that a respondent committed an unfair labor practice, the commission has a number of remedies available to rectify the violation. The orders will require the employer to cease and desist any current violation and to refrain from future violations in similar situations. The commission will also commonly require an employer to post a notice of the commission’s finding the violation of the unfair labor practice provision. Historically, this was done by actually posting notices prepared by the commission on bulletin boards and other areas where they would be seen by employees, but in more recent years, the commission has given respondents the option of providing electronic notice to employees.
Where an employee has been improperly disciplined or dismissed from employment, the commission can vacate the discipline and order that the employee be reinstated. The commission can also order back pay, which consists of any wages or benefits that the employee would have been entitled to if his or her employment had not been interrupted. While in most instances this remedy would be awarded against the public employer, in cases in which an employee organization breached its duty of fair representation and, in turn, caused an employee to lose wages, the commission may order the employee organization to pay back-pay to the employee as well.
In cases involving an improper unilateral change to wages, hours, and terms and conditions of employment, the commission will order the parties to return to the status quo that was in place before the change was made. Likewise, where one of the parties has engaged in bad-faith bargaining, the commission can order the parties to resume negotiations.
The commission also has the discretion to award attorneys’ fees to both sides depending on the outcome of the case and whether an unfair labor practice was proven. The commission will award attorneys’ fees to a prevailing charging party when that party demonstrates that the respondent knew or should have known that its conduct violated F.S. Ch. 447, Part II. A prevailing respondent is entitled to an award of attorneys’ fees and costs if the charge is frivolous, unreasonable, or groundless or if the charging party continued the litigation after it became clear that the charge was without merit. Finally, regardless of the remedy ordered by the commission, the commission does not have the authority to enforce its own orders. The act gives employers, employee organizations, and individual employees the right to petition the circuit court to enforce the commission’s orders. The act also requires that such petitions take precedence over all other civil matters and be heard expeditiously by the circuit court.
As noted at the outset, the goal of this article is to provide a basic working knowledge of unfair labor practices in the public sector and, by necessity, it does not provide an exhaustive look into the details and nuances that exist in this area of law. Nonetheless, in providing this primer, one can see the importance of this area of the law and the need to provide a mechanism for resolving these disputes. Public sector labor relations strikes a delicate balance between providing public employees with their constitutional rights to collectively bargain while at the same time protecting the public by assuring at all times the orderly and uninterrupted operation and function of government. While the unfair labor practices described herein represent situations in which disputes have challenged this balance, the expeditious and fair resolution of these disputes serves to promote the harmonious and cooperative relationship between government and its employees.
 In Dade County CTA v. Florida Legislature, 225 So. 2d 903 (Fla. 1968), the Florida Supreme Court determined that, other than the right to strike, public-employees had the same right to collective bargain as private employees and that this right should not be abridged or denied. It further held that the legislature should enact legislation that governed public sector bargaining. Four years later, no action had been taken, so in Dade County CTA v. Florida Legislature, 269 So. 2d 684 (Fla. 1972), the court warned that the failure to implement legislation within a reasonable period of time would result in the court creating guidelines to enforce the constitutional requirement.
 Fla. Stat. Ch. 447, Part II (2018), is commonly referred to as PERA. All references to the statutes herein are to the 2018 edition of the Florida Statutes. Most of the provisions of PERA have remained unchanged for a number of years.
 Fla. Stat. §447.503(2).
 Fla. Stat. §447.503(1); F.A.C.R. 60CC-5.001(3).
 Koren v. School Board of Miami-Dade County, 97 So. 3d 215 (Fla. 2012). Prior to the Koren opinion, the Commission used the standard in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108 (Fla. 1st DCA 1977), for determining the sufficiency of charges.
 Fla. Stat. §447.503(6)(b).
 Fla. Stat. §447.401.
 Federation of Public Employees v. School Board of Broward County, 31 FPER ¶135 (2005). Orders by the commission are reported in the Florida Public Employee Reporter (FPER).
 Fla. Stat. §447.203(14).
 Fla. Stat. §447.203(17).
 Id.; see also Utility Board of the City of Key West v. Local Union 1990, International Brotherhood of Electrical Workers, 14 FPER ¶19040 (1988).
 Fla. Stat. §447.403 (providing the process for resolving impasses during collective bargaining).
 See International Association of Firefighters, Local 2416 v. City of Cocoa, 30 FPER ¶295 (2004) (citing IBPO, Local 621 v. City of Hollywood, 8 FPER ¶13334 (1982)).
 FOP, Miami Lodge 20 v. City of Miami, 12 FPER ¶17029 (1985); Palowitch v. Orange County Classroom Teachers Association, 2 FPER 280, 282 at n. 14 (1977).
 Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So. 2d 1221 (Fla. 1985); see also Amalgamated Transit Union, Local 1593 v. HARTA, 24 FPER ¶29247 (1998); IAFF v. City of Cocoa, 18 FPER ¶23235 (1992) (and cases cited therein).
 A nonexhaustive list of management rights are set forth in Fla. Stat. §447.209.
 See, e.g., Amalgamated Transit Union, Local 1493 v. HARTA, 24 FPER 29247 (1998); IAFF v. City of Cocoa, 18 FPER ¶23235 (1992).
 See, e.g., The Florida School for the Deaf and the Blind Teachers United v. The Florida School for the Deaf and the Blind, 11 FPER ¶16080 (1985).
 Pasco County School Board, 353 So. 2d at 117.
 Fla. Stat. §447.401.
 Westfall v. Orange County Board of County Commissioners, 8 FPER ¶13367 at 648 (1982).
 See Orange County Classroom Teachers Association v. School District of Orange County, 40 FPER ¶23 (2013); AFSCME Florida Council 79 v. Miami-Dade County, 32 FPER ¶100 (2006).
 Pensacola Junior College Faculty Association v. Pensacola Junior College Board of Trustees, 50 So. 3d 700 (Fla. 1st DCA 2010).
 Id. at 702.
 Raven v. School District of Manatee County, 34 FPER 125 (2008).
 Kallon v. UFF, 15 FPER ¶ 20047 (1988).
 See Gow v. AFSCME, Local 1363, 4 FPER ¶4168 at 325 (1978) (quoting Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953)).
 See Leon County Police Benevolent Association v. City of Tallahassee, 8 FPER ¶13400 (1982).
 See National Union of Hospital and Health Care Employees v. Southeast Volusia Hospital District, 8 FPER ¶13419 (1982).
 Fla. Stat. §447.5035.
This column is submitted on behalf of the Labor and Employment Law Section, David Whitney Scott, chair, and Robert Eschenfelder, editor.