The Florida Police Benevolent Association is appealing an administrative law judge’s decision to uphold the way a state agency is enforcing a new state law that places new restrictions on public-employee unions.
The 30,000-member union filed the notice of appeal on Oct. 12 to challenge the opinion issued by Administrative Law Judge Robert Cohen, who determined that rules proposed by the Florida Public Employees Relations Commission (PERC) were a valid exercise of the commission’s authority.
The legal challenge comes in the wake of PERC issuing rules to implement a new Florida law, Senate Bill 256, which supporters say enables teachers and other public employees to make more informed decisions on whether to join unions. The measure also requires public-employee unions to seek recertification and then win a subsequent election if the number of their dues-paying members drops below 60% of the total number of workers in the bargaining unit.
In addition, such unions representing government workers can no longer require the deduction of union dues from employee paychecks.
That said, however, the text of the new law provides exceptions to “employee organizations” representing public-safety personnel – specifically, law enforcement officers, prison guards and firefighters. The Police Benevolent Association (PBA), along with legal intervenors Florida Professional Firefighters Inc., Teamsters Local Union No. 769 and the Florida State Fraternal Order of Police, contend that the framing of PERC’s rules would apply the law’s provisions to bargaining units with members who are civilians working in support of sworn public officers, such as dispatchers and paramedics.
PERC has substituted the term “bargaining unit” for “employee organization” in its rules, according to Paul Daragjati, general counsel for the Florida State Fraternal Order of Police (FOP).
“Although PERC asserts that it’s interpreting the new legislation, our argument is that the agency has essentially substituted its own requirements in place of the plain language of the legislation,” Daragjati told the Florida Record in an email. “Both terms are defined in statute and have distinct meanings.”
The state’s First District of Appeal should block Cohen’s attempt to modify the clear language in the statute, he said. Florida law provides for a long history of judicial deference to the plain language of the law, according to Daragjati.
“PERC’s modification of the statute with its rulemaking has essentially deprived many of our members of the exemptions the legislature has provided us,” he said. “The FOP has members who are not certified law enforcement officers (dispatchers, crime scene techs, etc.), who would still be exempt under the plain language of SB 256. PERC, however, has modified the application of SB 256 to eliminate their exemption under most cases.”
Cohen, however, concluded in his Oct. 6 decision that the proposed rules do not widen, change or contravene the provisions of the law. In addition, PERC did not overreach on its rulemaking authority, nor did it fail to follow the state’s rulemaking procedures, the decision states.
The state Legislature could have exempted public safety support personnel such as emergency medical technicians and helicopter pilots, according to Cohen’s decision, but it declined.
“As essential as these personnel are to the performance of law enforcement and firefighter duties, the PBA and the intervenors would be well served by approaching the Legislature to clarify or amend (the law) to include such essential personnel in the coming session,” the opinion states.