State employees file lawsuit challenging Service First

TALLAHASSEE - On Thursday, Aug. 2, attorneys for AFSCME Florida Council 79 filed suit in Leon County Circuit Court challenging the recently passed Service First law amending the state Career Service System. Service First pushed by Gov. Jeb Bush and business tycoons eliminates seniority consideration of state employees during layoffs and transfers 16,000 state workers into "at will" employment.
"The Florida Constitution protects the right of public employees to collectively bargain," said AFSCME Florida President Jeanette D. Wynn. "This lawsuit arises from the governor's refusal to bargain with his employees and the Legislature's disdain for the pertinent laws."
The lawsuit was filed on behalf of the 70,000 Career Service employees represented by AFSCME Florida in four bargaining units: human services, operational services, administrative-clerical and professional. The defendants in the lawsuit are Gov. Jeb Bush as the employer and Secretary of State Katherine Harris as the custodian of state laws.
The lawsuit asks the court to declare unconstitutional the Service First law and the section of the state budget that imposes a contract on AFSCME-represented bargaining units.
During nine months of contract talks, negotiators for Gov. Jeb Bush never presented any written proposals addressing his sweeping Service First changes. The governor then declared impasse in January and declined mediation, preferring instead to send the dispute to be heard by a special master - an independent labor relations expert agreed upon by both sides.
At the special master hearing in March the governor still failed to provide anything in writing. The governor failed to present any concrete proposals until April 3 when a legislative committee was scheduled to hear the contract impasse. This was also the same day that the parties received the special master's report, which ruled against the governor on almost every issue and dubbed the plan "irrational" and "Service Worst."
Florida law requires a cooling off period of 20 days after the receipt of a special master report to give the parties time to work out their differences before the Legislature steps in to force a settlement.
This year, legislative leaders refused to observe the 20-day period. To prevent this violation of law, a Tallahassee circuit judge at the behest of AFSCME issued an injunction barring the legislative hearing. The Florida Supreme Court struck down the injunction as too restrictive on the Legislature. The state high court, however, reaffirmed the constitutional right of public employees to collectively bargain and to challenge any laws denying that right.
"The Legislature cannot make laws which obliterate constitutional rights," said Jack Dempsey, general counsel of AFSCME International in Washington. "Service First is a return to the political spoils system."

Count 1 of the lawsuit addresses the legislature's abuse of the process for resolving disputes between the governor and his employees - by meeting the same day as the special master report was received.
"The unanticipated and shockingly rapid procedure utilized by the Legislature denied (AFSCME Florida) a reasonable time and a reasonable opportunity to exercise its rights," the lawsuit states. "(It) is an affront to American notions of fairness and substantial justice."

Count 2 of the lawsuit addresses the Legislature's resolution of issues not presented properly to the impasse process. Wages, hours and terms of employment - such as civil service rights - are mandatory subjects of bargaining. This means that the Legislature cannot resolve these issues unless they are properly subjected to the impasse process. To do otherwise denies the right of state employees to bargain on these mandatory subjects. In this case, the state didn't present its "last offer" until after the special master process and on the day of the legislative hearing. These were the first written proposals on Service First submitted by the governor during the entire collective bargaining process.

Count 3 addresses "logrolling," the Florida Constitution's prohibition against making substantive legal changes in budget bills. This is to ensure that legal changes receive a full public hearing. Page 392 of the 2001 General Appropriations Act imposes a forced resolution of all of the disputed contract issues between the governor and AFSCME Florida. Most of these issues have nothing to do with appropriations.

Count 4 charges that Service First unconstitutionally waives the right of state employees to bargain over their employment. The law alters mandatory subjects of bargaining, such as layoff procedures, discipline, compensation and job classifications - all of which deny state employees the right to bargain over these major aspects of their employment. The imposed contract also gives the state the power to unilaterally remove employees from AFSCME Florida bargaining units.

Count 5 charges that Service First violates the equal protection of the laws guaranteed by the Florida and U.S. Constitutions. Service First excludes various classes of state employees, but singles out AFSCME's bargaining units for the most punitive changes. There is no rational basis for this disparate treatment. AFSCME believes this is because of our union's strident opposition to the policies of the governor and his brother.

Count 6 addresses the elimination of special masters and mediation from the resolution of contract disputes between the governor and his employees. This change was made because the governor and legislators disliked the fact that this year's special master ruled against them on Service First.
"Without the right to strike, the availability of a mediator and the ability to require the participation of a special master are the only tools previously provided to facilitate impasse resolution by the Legislature," the lawsuit states. "Without the persuasive power of a decision by a neutral expert in the field of labor relations, neither the defendant governor nor the Legislature will have any incentive to bargain in good faith."

Count 7 charges that Service First will deny state employees due process of law by prohibiting the Public Employees Relations Commission from changing the disciplinary action, by imposing unreasonable time limits and by limiting any possibility of fairness - virtually ensuring disparate and therefore illegal treatment of state employees. The new law also fails to require back pay for employees reinstated after wrongful discipline.