STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNITED TEACHERS OF SUWANNEE, )

)

Petitioner, )

)

and ) CASE NO. 75-051

) PERC No. 8H-RC-744-1031 SUWANNEE COUNTY SCHOOL BOARD, )

)

Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on May 1, 1975, in Live Oak, Florida, and on May 2, 1975 in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Benjamin R. Patterson

Tallahassee, Florida

For Public James G. Brown, and Robert Hanudel Employer Alley, Alley and Blue

Miami, Florida

SUMMARY OF THE CASE

United Teachers of Suwannee ("Petitioner" hereafter) filed a Petition with the Public Employees Relations Commission ("PERC" hereafter) on December 30, 1974.. Petitioner is seeking to represent a unit of employees of the Suwannee County School Board ("Public Employer" hereafter). The unit described in the Petition would include all classroom teachers and auxiliary personnel such as librarians and guidance counselors employed by the School Board; and would exclude administrators and administrative assistants, school principals, assistant principals and deans who are specifically charged with the assignment, scheduling, rating or promotion of personnel within the individual schools. The Public Employer expressed agreement with the unit designation set out in the Petition, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the bargaining unit (See: Transcript pp 8-10). 1/

The purposes of the hearing were to consider and to develop a record from which PERC might consider and determine the following issues:

1. Whether the Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Chapter 447.

   
   

2. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447.

3. Whether there is a sufficient showing of interest as required for the filing of a Representation Election Petition under Florida Statutes, Chapter 447.

   
   

4. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission.

   
   

5. The appropriate unit of public employees.

Prior to the date scheduled for the hearing, the Public Employer filed a Request for Discovery and several Discovery notices and pleadings. Petitioner responded with Motions to Quash. The Request for Discovery was denied, and the Motions to Quash were granted by order entered April 29, 1975. On April 30, 1975 the Public Employer filed a Motion to Quash Hearing and/or Notice of Hearing, together with an extensive memorandum of law in support of the motion. The motion was "dismissed" by order of the Chairman of the Public Employees Relations Commission dated May 14, 1975. On the day of the hearing Petitioner and the Public Employer filed various petitions to revoke subpoenas, and petitions to enforce subpoenas. The undersigned ruled upon these motions at the hearing (See: TR 30-36). The Public Employer subpoenaed several employees of PERC to the hearing. PERC responded with a Petition to Revoke Subpoena. The Public Employer made and filed a Motion to Enforce Subpoena at the hearing.

Arguments were heard, the Petition to Revoke Subpoena was granted, and the Petition to Enforce was denied (TR 46-60).

Subsequent to the hearing the Public Employer filed a Motion to Strike Order Denying Motion to Dismiss. In this motion the employer is seeking to strike from the record the order entered by the Chairman on May 14 (infra). The Motion to Strike is hereby DENIED. The Motion and supporting memoranda are included herewith for the Commission's consideration.

Petitioner called the following witnesses: John A. Wilson, a teacher employed by the Public Employer, and co-president of Petitioner; Henry Clay Hooter, a guidance counselor employed by the Public Employer; Lonnie Bob Hurst, a guidance counselor employed by the Public Employer; and Eloise Boyles, a teacher employed by the Public Employer, and co-president of Petitioner. The Public Employer called the following witnesses: John Wilson and Eloise Boyles, both of whom had previously been called by the Petitioner; Mary Catherine Miller, a teacher employed by the Public Employer; Parnell Phillips, Verna Bass, and W. E. Daniels, all employees of the Public Employer; O. P. Warren, a principal employed by the Public Employer; Oscar Munch, a guidance counselor employed by the Public Employer; John Allen Cade, a principal employed by the Public Employer; Virginia Alford, a guidance counselor employed by the Public Employer; and Marvin Johns, the Assistant Superintendent of Instruction of the Public Employer. The testimony of the witnesses Phillips, Bass, and Daniel was rejected by the undersigned based upon a proffer made by counsel for the Public Employer (TR 198-200). Hearing Officer's Exhibits 1 - 9, Joint Exhibits 1 - 4, and Employer's Exhibits 1 - 10 were offered into evidence and were received.

Employer's Exhibit 8 is an Affidavit signed by a witness called by the Public Employer. The last two sentences of paragraph 14 of the affidavit, the third and last sentences of paragraph 33, the last sentence on page 8 and the first three sentences on page 9 of paragraph 34 of the affidavit, and the second sentence of paragraph 38 of the affidavit were stricken there from.

The parties were allowed an opportunity to file Legal Memoranda and Proposed Findings of Fact subsequent to the hearing. The Public Employer has

filed an Application for Determination of Managerial and Confidential Status of Individuals, a Brief, and Proposed Findings of Fact. Petitioner has filed a Memorandum in Opposition to Employer's Motions, and a Proposed Hearing Officer's Report.

FINDINGS OF FACT

1. The Petition herein was filed by Petitioner with PERC on December 30, 1974. (Hearing Officer's Exhibit 1).

   
   

2. The hearing in this cause was scheduled by notice dated April 18, 1975. (Hearing Officer's Exhibits 2, 3).

3, The Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4).

1. The United Teachers of Suwannee is an organization which is seeking to represent employees of the Public Employer concerning working conditions, including wages, hours, and terms of employment. The United Teachers of Suwannee was formed through a merger of two organizations, one of which had previously entered into a collective bargaining agreement with the Public Employer prior to the adoption of the Public Employees Relations Act.

   
   

2. There is no contractual bar to the holding of an election in this case. (Stipulation TR 7, 8).

   
   

3. There is no bargaining history under the Public Employees Relations Act which affects this matter. (Stipulation TR 8).

   
   

4. Requests for recognition as the exclusive representative of persons in the unit described in the Petition, and the Public Employer's response to the requests are set out in correspondence which has been received in evidence as Joint Exhibits 1, 2, 3, and 4. Petitioner clearly requested recognition. The Public Employer did not comply with requests for meetings as promptly as requested by Petitioner; however, the request for recognition was not explicitly denied.

   
   

5. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 5). The Public Employer contends that Petitioner is not duly registered. The PERC registration file, PERC No. 8H-OR-744-1034, was received in evidence. The Public Employer sought to present the testimony of certain PERC officials with respect to its contention; however, Petitions to Enforce Subpoenas of these individuals were denied.

9, PERC has previously determined that the Petitioner filed the requisite Showing of Interest with it's Petition. (Hearing Officer's Exhibit 4). The Public Employer sought to offer evidence that the requisite Showing of Interest had not been presented to PERC; however, no direct evidence in support of the Public Employer's position was presented.

1. The parties agreed that the unit designation set forth in the Petition is appropriate, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the unit. Petitioner would include these persons within the unit.

2. The Public Employer employs five guidance counselors. One guidance counselor is employed at Branford High School, one at the Vocational/Technical School, one at the Suwannee Middle School, and two at Suwannee High School. Guidance counselors are charged generally with responsibility for counseling students and assisting them in understanding the school and it's environment, in understanding themselves in relation to others, in understanding their progress in relation to their abilities and limitations, and in understanding themselves in relation to education and vocational goals. Guidance counselors assemble and interpret information about students, encourage and participate in case conferences with parents and/or teachers, participate in school standardized testing programs, and distribute occupational and vocational material to pupils. In addition to these functions, which are generally associated with the position of guidance counselor, guidance counselors employed by the Public Employer perform additional functions which are probably unique to Suwannee County. Indeed, the functions performed by guidance counselors within Suwannee County vary from school to school and from counselor to counselor. The broad range of duties performed by a guidance counselor in Suwannee County will depend to a great extent upon the personality of the individual counselor and his or her relationship with the school principal.

   
   

3. All guidance counselors within the Suwannee County School system have Masters Degrees. It is necessary for a guidance counselor to have a casters Degree in order to be certified as a guidance counselor. Although a good number of teachers within the school system have Masters Degrees, this is not a requirement. Guidance counselors are certified in a different category than are teachers. Guidance counselors have the same base pay as teachers. A beginning guidance counselor would receive the same pay as a beginning teacher with a Masters Degree. Guidance counselors have the same contract as instructional personnel. No guidance counselors employed by the Public Employer perform instructional duties. Guidance counselors receive mail at the schools in the same manner as instructional personnel, share the teachers' lounge, and eat lunch in the school cafeteria with instructional personnel. All guidance counselors have offices. Many teachers also have offices, but all teachers do not have offices. Teachers are scheduled for five instructional work periods per day and one planning period. Guidance counselors work six periods per day without any planning period. Teachers are generally hired on a ten-month contract basis, while guidance counselors are hired on a twelve-month basis. Students frequently relate complaints with respect to their teachers to guidance counselors. The guidance counselors who testified at the hearing each handled these complaints in a different manner. Among the actions that a guidance counselor might take upon hearing a number of complaints about a teacher are to counsel with the teacher, or to inform the principal. Guidance counselors are responsible for assigning new students to classes. In making these assignments guidance counselors will consider class sizes and the personality of the teacher and the student. Guidance counselors can make an assignment despite objections of a teacher. Guidance counselors periodically meet as a group without any teachers present. These meetings might be called guidance counselor meetings, communications meetings, or policy meetings. Guidance counselors occasionally attend meetings with the superintendent and his staff and principals. Policy matters which affect the entire school system are discussed at these meetings, and decisions are made based upon these discussions. A new diploma policy was recently adopted within the school system as a result of such meetings.

   Guidance counselors do not have the power to hire, fire, suspend or discipline teachers or other instructional personnel.

   
   

4. Henry Clay Hooter is the guidance counselor at the Vocational/Technical School. In addition to the duties discussed above, Mr.

   Hooter serves as the school's Assistant Principal. He has served as Acting Principal on several occasions. On one occasion while serving as Assistant Principal, Mr. Hooter was placed in the position of preparing the Principal's School Budget. In the absence of the principal Mr. Hooter has been called upon to sign leaves of absence for teachers. In the absence of the Principal Mr.

   Hooter is generally responsible for maintaining order at his school. Because he serves as Assistant Principal, Mr. Hooter has more contact with the Principal than teachers have.

   
   

5. Lonnie Bob Hurst is one of the guidance counselors at Suwannee High School. In addition to the general duties and responsibilities set outs above, Ms. Hurst participates in preparing the master school schedule. A teacher's entire workday is set out in the master school schedule. Decisions made in preparing this schedule will determine whether a teacher will have advanced, medium, or slow courses, when the courses will be taught, when the teacher will have a free period, and when the teacher will take lunch. The master school schedule is ultimately adopted by the Principal. Both the Principal and the Assistant Principal work on the schedule along with Ms. Hurst. Ms. Hurst makes recommendations respecting courses that should be offered at Suwannee High School. Her recommendations are generally followed. The Principal at Suwannee High School frequently meets with the school's two guidance counselors and the Assistant Principal to discuss scheduling, and other policy matters. Guidance counselors at Suwannee High School play an active role in determining which courses will be offered, and which teachers will teach the courses.

   
   

6. Oscar Munch is the guidance counselor at Branford High School. Mr. Munch acts as Assistant Principal in the absence of the Assistant Principal.

   Mr. Munch was previously charged with the responsibility for drafting the master schedule, but the Assistant Principal now performs this function.

   
   

7. Ms. Virginia Alford is the guidance counselor at Suwannee Middle School. The Principal at Suwannee Middle School, Mr. John Cade, relies upon Ms. Alford to perform numerous functions beyond those generally associated with the position of guidance counselor, and the duties and responsibilities discussed generally above. Mr. Cade has delegated the responsibility for developing the master school schedule to Ms. Alford. Mr. Cade has ultimate responsibility for approving the schedule, but he generally follows the recommendations of Ms. Alford. The guidance counselor at Suwannee Middle School is responsible for assigning students to teachers. In making these assignments the guidance counselor is expected to evaluate the student and the teacher. Mr. Cade relies upon Ms. Alford in preparing his evaluations of teachers. Ms. Alford does not fill out any formal evaluation form; however, Ms. Alford's observations respecting student complaints and the teacher's utilization of student files are solicited by Mr. Cade, and are used by him in rendering evaluations of teachers. Teachers make suggestions to Mr. Cade respecting the budget. Ms. Alford actually assists Mr. Cade in preparing the budget. She attends budget meetings with him, and is expected to give advice to Mr. Cade respecting overall school needs. Mr. Cade meets very frequently, approximately two times per week with his Assistant Principal and his guidance counselor. The guidance counselor's name is on the school stationery. Mr. Cade frequently takes his guidance counselor to meetings with the Superintendent and the Superintendent's staff.

   
   

8. Limited negotiations were conducted between the Public Employer and a labor organization which ultimately merged with the Petitioner in this case. Guidance counselors, occupational specialists, and school psychologists did not participate in these negotiations on behalf of the school board. It is now the apparent intent of the Public Employer to place such staff members as guidance

   counselors, occupational specialists and school psychologists on the collective bargaining negotiating team on a rotating basis. The purpose this placement would be to have the persons who will ultimately have responsibility for administering an agreement participate in the negotiations.

   
   

9. There are two occupational specialists employed by the Public Employer. The occupational specialists are not assigned to a particular school. Occupational specialists are charged generally with placing students who are leaving the school system in positions in business and industry. The occupational specialists follow up on students after graduation. The occupational specialists answer directly to the Director of Vocational Education. They prepare their own plan of operation and have a separate budget. Occupational specialists made specific recommendations to the Superintendent regarding items in their budgets. Occupational specialists perform no instructional duties. There is no requirement that an occupational specialist have a college degree.

   
   

10. The school psychologist is a member of the Superintendent's staff. The school psychologist answers directly to the Superintendent. He has primary responsibility for the testing and placement of students within the school district. The school psychologist plays a major role in placement of students within the school system. He has a separate office and his own secretary. The school psychologist holds a "specialist degree", which is a level above a Masters Degree. The school psychologist plays a role in formulating school policy respecting special education programs. The school psychologist has virtually total discretion in administering budgetary funds which are allocated to him.

ENTERED this 25 day of November, 1975 in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida

ENDNOTES

1/ References to pages in the official transcript will hereafter be designated "TR" followed by the page number.

COPIES FURNISHED:

Benjamin R. Patterson, Esquire James G. Brown, Esquire

Docket for Case No: 75-000051

Orders for Case No: 75-000051