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Legal Update: PERC Shortens Time to File ULP

Wed November 4, 2020 News


Recently, the Florida Public Employees Relations Commission (“PERC”)
shortened the time for filing an unfair labor practice charge (“ULP”) involving a
unilateral change. Instead of filing within 6 months of when the change is
implemented, unions now must file within 6 months of when the change is
announced – within 6 months of when the union is on notice that management
intends to make a future change.

Overturning decades of precedent, PERC announced this shortened statute of
limitations in Orange County Classroom Teachers Association, Inc. v. School
District of Orange County, Florida, 47 FPER ¶ 79 (July 17, 2020) and dealt with
when a union must file a charge over announced changes—where no action has yet
been taken. It means unions will have to take action sooner and possibly before
knowing whether or not the announced change will actually be implemented, or what
the impact will be. The law had always been that the time clock started ticking when
the change was ultimately implemented, and not waste time, money and energy on
filing a ULP charge over announced changes that may never occur.

Previously, under Nassau Teachers Association v. School Board of Nassau
County, Florida, 8 FPER ¶ 13206 (1982) unions could file a charge at the time
management announces the change (usually a “direct dealing” charge), or when
management unilaterally implements the change (unilateral change charge). This
made good sense as the announced change may, in fact, be never implemented,
making a ULP charge premature or unnecessary.

In the new case, Orange County, PERC found the union knew management’s
position—that it would not comply with the collective bargaining agreement
(“CBA”) regarding reappointment of instructional personnel—by no later than
February 14, 2019 when management emailed the union a copy of the “tentative
timeline” sent to the principals and administrators, which did not reference automatic
reappointment for teachers as it had in years past. PERC said that despite the label
“tentative,” the school district normally complies with the dates presented in the
timeline and said the union did not show “strong evidence of equivocation” when
the school district indicated in early April 2019 that it would review non-appointment decisions if it changed its position regarding the validity of the contract language. Non-appointment letters affecting the members were not sent until April
8, 2019. PERC held the union’s ULP charge filed on September 27, 2019 (within 6
months of the April 8, 2019 non-appointment letters), was time-barred by the 6-
month statute of limitations.

Based on Orange County, unions will need to file a ULP charge within 6
months from its notice of management’s intent to repudiate the contract or make a
future change. Unions should not rely on any subsequent discussions with or
equivocation from management. Ambiguities and factual disputes over timing and
other issues may be resolved in management’s favor, unless carefully and clearly
articulated and documented.

For more information about this case or its impact, contact the attorneys at
Donnelly + Gross.

Paul Donnelly
Laura Gross
Jung Yoon
Jim Brantley
Cole Barnett

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