all non-civil service personnel; (6) employees with the rank of Sergeant and above; (7) the aide to the mayor from the Administrative Services Bureau; (8) the aide to the major in charge of Field Operations Bureau; (9) Court liaison patrolmen from Field Operations Bureau, and (10) Supervisors and office clerical employees. Basically, the City would exclude all personnel except the patrolmen
in the Field Operations Bureau. Secondarily, the City would opt to exclude certain patrolmen in these other Bureaus as confidential employees.
Both parties stipulated that the City of Orlando is a public employer and the PBA is an employee organization as defined by Chapter 447. Florida Statutes; and that all non-sworn employees of the Police Department, all reserve officers and all officers of the rank of major and above should be excluded from the unit. They further agreed that, as a minimum, all patrolmen in the Field Operations Bureau should be included in the approved bargaining unit.
The primary purpose of the hearing was to establish the facts upon which to determine the appropriate bargaining unit.
Exhibit 1, the Petition; Exhibit 2, Affidavit of Compliance for Registration of Employee Organization; and Exhibit 3, Affidavit of Compliance for Required Showing of Interest were admitted into evidence without objection. However, subsequent thereto, the City contested that validity of the Petition and the registration of the petitioner. These attacks were primarily based upon the notarizations of the signatures which were taken without the notary actually administering an oath at the time the signatures were made. During the course of the proceedings, some seven witnesses testified and 48 exhibits were offered into evidence with all received except numbers 14, 41 & 42.
The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments.
The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records.
Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual.
The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau.
In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week.
The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office.
The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section.
The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad.
The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians.
Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and
patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed.
Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification.
Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient.
The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years.
On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest.
Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides:
Any member of this association who voices criticism of another member, group of members or the association itself, without
first seeking recourse through the provisions of Section 1 of this Article, shall be sub-
ject to suspension of his membership, or ex- pulsion from the association..."
This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA.
With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
CONCLUSIONS OF LAW
Factors to be considered in determining the appropriate bargaining unit are contained in Section 447.009(4), Florida Statutes. Additional factors are contained in Commission Rule 8H-300.3l F.A.C.
The primary issue to be here determined is whether sergeants, lieutenants and captains are to be excluded from any bargaining unit by reason of being managerial employees as defined in Section 447.02(4), Florida Statutes, and therefore, precluded from membership in any bargaining unit of the Orlando Police Department. Secondarily, if it is determined that these ranks are not managerial, the determination must be made whether or not a conflict of interest or lack of community of interest exists which makes it inappropriate for some or all of these ranks to be in an appropriate bargaining unit which includes patrolmen of the Orlando Police Department.
Sec. 447.O2(4), Florida Statutes provides:
"Managerial employees" are those employees generally having authority in the interest of the public employer who (a) formulate policy which is applicable throughout the bargaining unit, or (b) may reasonably
be required on behalf of the employer to assist directly in the preparation for and conduct of collective bargaining negotiations or to have a major role in the administration of agreements resulting therefrom, or
(c) have a significant role in personnel administration or in employee relations, and in the preparation and administration of budgets for any public agency or institution or subdivision thereof, provided, that said roles are not of a routine, clerical or min- isterial nature and require the exercise of independent judgment. In determining whether an individual is a managerial employee,
the commission shall consider the historic
relationship of the employee to the public employer and to co-employees.
It is to be noted that the three criteria for determining managerial employees are in the alternative, i.e. they may either (a) formulate policy, (b) assist in collective bargaining, or (c) have a significant role in personnel administration. In order to be classed as managerial they need perform only one of the above quoted functions. Preparing efficiency reports which affect the officer's chances for promotion, retention, transfer and pay can hardly be considered a purely ministerial act. Similarly, the power to make effective recommendations pertaining to discipline, transfers, and other personnel actions does not appear to be a "routine" function as contemplated by Section 447.02(4), Florida Statutes above quoted. The City in its presentation of the evidence generally took the position that sergeants are supervisors. That is one reason they modified the uniform to that of "white shirt" to reflect this status. Chapter 447, Florida Statutes does not address itself to supervisory employees. By the same token, the National Labor Relations Act which preceded Florida's PERA and provided the background against which all public employees relations acts are formulated, did not contain a definition of "managerial employees", yet the National Relations Board and the courts quickly excluded from rank and file units those employees in a position to formulate, determine, and effectuate management policies. Ford Motor Co. 66 NLRB 1317 (1946). when the NLRB approved a bargaining unit comprised of foremen and this action was affirmed by the Supreme Court in Packard Co. v. Labor Board, 330 US 485 (1947) Congress forthwith changed that decision with the Taft-Hartly Act, 61 Stat. 136 (1947). This legislation specifically excluded supervisory employees from the protection of the National Labor Relations Act.
In the more recent case of NLRB v. Bell Aerospace Co. 40 L Ed 2d 134 (1974), the Court reversed the Board's holding that "managerial employees" not associated with the "formulation of labor relations policies" were entitled to the protection of the Act, and held that "Congress intended to exclude from the protection of the Act all employees properly classified as 'managerial'" id. at
p. 143. Those employees who "express and make operative the decision of management are managerial". Ford Motor Co. supra.
In reversing the Packard Motor Co. case supra, Congress provided for the exclusion of supervisors, a category broadly defined to include any individual who had authority to hire, transfer, promote, discharge, reward, or discipline other employees or effectively to recommend such action. In the Senate version of the Taft-Hartly Bill, S. 1126, "supervisor" was more narrowly defined than in the House version to distinguish between "straw-bosses, lead men, setup men and other minor supervisory employees on the one hand, and the supervisor vested with genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such actions." S. Rep. No. 105, 80th Cong. 1st Sess. (1947). The Senate version of the Bill was adopted in conference.
It would appear fair to assume that when the term "managerial employee" was adopted and defined in Chapter 447, Florida Statutes, the meaning that had evolved from the decisions involving the NLRA should be used to resolve any ambiguities. The right to make effective recommendations regarding hiring, firing, or disciplinary action would appear to constitute a significant role in personnel administration or in employee relations as noted in Section 447.002(4), Florida Statutes quoted above.
Apart from the question of managerial status of sergeants, lieutenants and captains there arises the question of whether a conflict of interest could result from supervisors and rank and file employees being placed in the same unit thereby creating the question of the compatibility of the unit with the joint responsibilities of the public employer and the public employees to represent the public. Section 447.009(4)(c), Florida Statutes. This issue arises as a result of Art XIII By-Laws of the Orange County PBA above quoted. This provision of the bylaws would appear to place the sergeants, lieutenants and captains, if in the same unit with the patrolman, in a position where they will have to opt between loyalty to the union and their responsibilities to uphold the rules and regulations of the Police Department.
With respect to those general categories proposed for exclusion from the appropriate bargaining unit on the ground of lack of community of interest, the principal distinction between personnel in the staff support categories and those in the Field Operations Bureau appears to be working hours and wearing of uniform. All appear to be paid on the same wage classification plan, to have the same fringe benefits, the mobility to transfer between departments and the same authority associated with rank.
With respect to those individuals proposed for exclusion on the basis that they are confidential employees the facts as presented and noted above regarding their duties is largely undisputed and the resolution thereof is a question of law. In accordance with Section 447.009(3)(a) no recommendations are submitted in this regard.
In other jurisdictions police captains, lieutenants and sergeants have been considered for and found properly included in bargaining units including patrolmen. In the matter of City of Yonkers, et al, Selected Decision Paragraph 13-4017 Case No. C-0388 a copy of which is included in petitioner's brief (as are the other cases hereinafter discussed), the petitioner was Police Captains, Lieutenants and Sergeants Association of Yonkers, Inc., the intervenor was the Police Benevolent Association of the Police Department of the City of Yonkers, Inc. and the City of Yonkers was the public employer who did not participate in the hearing. Petitioner attempted to establish a bargaining unit composed of captains, lieutenants and sergeants who had been represented by intervenor in an overall unit of police officer since 1967. In this case the hearing examiner found that captains performed primarily administrative duties and were responsible for the discipline and efficiency of the personnel under their command, but that lieutenants and sergeants were required to immediately report to their captains by telephone any unusual occurrence. On the basis of the evidence submitted, it was held that there was a sufficient community of interest between them to make it appropriate for lieutenants, sergeants, and patrolmen to be included in the same bargaining unit, but that captains should be in a separate bargaining unit. Although not mentioned in the decision it is obvious that the police had been represented by the PBA for some time before New York enacted its PERA in 1971. The expressed intent of the N.Y. Legislature in enacting the Public Employees Relations Act was:
"That designations of employees as management or confidential ... reflect the extent to which a public employer has from time to time organized itself for collective negotiations. It is not the intention of the Legislature to destroy existing employer employee negotiating units such as principals or other school administrators who do not formulate policy or
who do not have a significant role in the employee relations as described in [S 201.7 of the Taylor Law]"
Since the public employer did not participate in the hearings leaving only the two unions as parties, the issue of exclusion from a bargaining unit by reason of managerial or confidential status was not raised in this case. It would appear that the legislative intent above quoted would discourage the public employer from raising those issues.
