A Florida statute makes it an unfair labor practice for a public employer to interfere with, restrain or coerce a “public employee” who is engaged in union activity. The Florida Court of Appeals, reversing a decision of Florida’s Public Employment Relations Board, found that an employer’s refusal to hire an applicant could not be covered by the statute.
The case involved Jeffrey Stanley, who worked for the Broward County Sheriff’s Office from February 2001 to December 2007, when he resigned to accept an outside position. During his employment by the Sheriff’s Office, Stanley was a member of the Federation of Public and Private Employees.
In April or May 2008, Stanley applied to be rehired by the Sheriff’s Office in his former position. On September 25, 2008, Stanley received a conditional offer of employment pending successful completion of a background check and other requirements.
At the same time Stanley was seeking approval of his application, the Sheriff was running for re-election against challenger Scott Israel. The Federation endorsed Israel, and Federation representatives told Stanley that supporting Israel could help Stanley obtain a review of his salary if Israel were elected.
Also during this time, the Federation had declared an impasse in a wage dispute unrelated to Stanley. On October 15, 2008, Stanley exited the Sheriff’s Office after dropping off paperwork for his background check. About 500 Federation members were picketing in front of the Sheriff’s Office regarding the impasse. Federation representatives participating in the picket asked Stanley to join them, and Stanley did so.
At the picket, Stanley learned about a debate between the Sheriff and Israel that evening. Stanley attended the debate wearing a pro-Israel T-shirt he received from Federation members at the picket. A Sheriff’s Office photographer took photos of the Federation picketers and Federation members at the debate. Stanley is identifiable in some of the photos. Stanley also handed out pro-Israel leaflets at a polling place at the direction of Federation representatives.
On November 4, 2008, the Sheriff won re-election. On November 14, a human resources representative wrote in an e-mail to Stanley that she received the completed background check on Stanley and planned to rehire Stanley in December. On December 4, 2008, Stanley received a call from a lieutenant, who told Stanley that the Sheriff was not going to rehire him because he had supported Israel.
Stanley then filed an unfair labor practice charge with PERC, alleging the Sheriff discriminated against him because of his political activities and Federation involvement. When PERC found that the Sheriff violated the “interference” statute by failing to rehire Stanley because of his Federation activities, the County appealed to the Court of Appeals.
The Court rejected Stanley’s claims. The Court found that, “contrary to PERC’s finding, at the time of his application for rehire, Stanley was not a public employee within the definition in the statute. While PERC’s interpretation of the statute is entitled to deference, a court need not defer to an agency’s construction of a statute if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute. Under the plain and ordinary meaning of the term ‘public employee’ as used in the statute, interfering with, restraining, or coercing a job applicant who is not a public employee does not violate the law. Because Stanley was not a public employee at the time the Sheriff declined to rehire him, PERC erred by finding the Sheriff violated the statute.”
Sheriff of Broward County v. Stanley, 2010 WL 4628904 (Fla. App. 1 Dist. 2010).
This article appears in the January 2011 issue