STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE FHEA, )

)

Petitioner, )

)

vs. ) CASE NO. 75-068

) PERC NO. 8H-RC-744-4003 MIAMI-DADE COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came up for hearing before Kenneth G. Oertel, Director, Division of Administrative Hearings, on April 16, 17, May 8, 13, and June 18, 1975, in Miami, Florida, on the petition of the Miami-Dade FHEA to the Public Employees Relations Commission for recognition of a bargaining unit under Chapter 74-100.

APPEARANCES

For Petitioner: W. Reynolds Allen, Esquire and

Donald T. Ryce, Jr., Esquire Hogg, Allen, Ryce & Norton

225 Alcazar Avenue

Coral Gables, Florida 33143 and

Mr. Vince Napoli, President Miami-Dade FHEA

Post Office Box 430303 South Miami, Florida 33143

For Respondent Roger Schindler, Esquire and Public Employer: Jay Freeman, Esquire

Simon & DuFresne

1492 South Miami Avenue, Suite 208 Miami, Florida

REPORT OF HEARING OFFICER

1. The Petitioner seeks to represent all full-time, professional: (a) teaching faculty members; (b) librarians; (c) audio visual personnel; (d) student personnel services personnel; and paraprofessionals and all department chairpersons. There was no dispute that the first four categories were appropriate and should be included in a bargaining unit. The parties disputed whether paraprofessionals and department chairpersons should be included in this unit. Other disputed issues were whether there was a sufficient showing of interest as required under Chapter 447, whether the employee organization is a properly registered organization with PERC, and whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. The

   parties were in agreement that the Respondent, Miami-Dade Community College was a public employer within the meaning of Florida Statutes, Chapter 447.

   
   

2. The Petition in this matter was filed with PERC on December 16, 1974. Considering all the evidence submitted regarding the organization membership and operation of the Petitioner, it can be concluded that the Petitioner is an employee organization within the meaning of Chapter 447, F.S. While the employee organization's affiliation has changed during the period when authorization cards were being solicited and while it was submitting its Petition to PERC, no evidence was submitted that any persons who signed authorization cards were in any way misled or relied upon an earlier affiliation of the organization which would render their authorizations invalid. Authorization cards were solicited from all groups of employees which are in the proposed bargaining unit. The public employer challenges the validity of all cards signed by paraprofessionals and department chair persons. In addition, the employer challenges the validity of all signature cards in general based upon its position that the union's showing of interest was obtained through collusion, coercion, intimidation, or representation. The validity of the cards signed by paraprofessionals and department chairpeople will be determined by PERC, as the inclusion or exclusion of these groups from this unit will determine the validity of the cards signed by these employees. The evidence presented on behalf of the employer challenging the voluntariness or fairness of the signature drive established that the general approach of those soliciting signatures was to present the card to the employee, let them read the card, and then ask them to sign. The cards have printing on both sides and stated:

   
   

   AUTHORIZATION FOR REPRESENTATION

   
   

   I, , a faculty member at Miami-Dade Community College and an employee of the MDCC Board of Trustees, by the execution of this authorization form select and designate the Miami-Dade Florida Higher Education Association chapter as my collective bargaining representative in all matters pertaining to the wages, hours and conditions of employment accorded me or to be accorded me by my employer. By the execution of this authorization I hereby authorize the Miami- Dade Florida Higher Education Association chapter to act as my collective bargaining representative pursuant to the provisions of Florida Statute 447.009(1) or 447.009(2).

   
   

   
   

   DATE:

   
   

   (Reverse Side)

   
   

   This is NOT a Miami-Dade FHEA membership application card. It does NOT obligate you to pay dues to the FHEA now or in the future. It does NOT obligate you now or in the future to join the FHEA. It does NOT prohibit you from signing authorization cards from other

   organizations. Your signature will make a collective bargaining election possible.

   
   

3. If there were any questions, the union representative generally stated that the signing of the card was to guarantee an election for bargaining units. Considerable testimony was introduced from various faculty members about the employee's solicitation-of signatures. It is fair to say that out of approximately 450 cards submitted by the union, only five witnesses testified that they signed signature cards without a clear understanding of the purpose of the card. Only one has asked for the return of the card, which was done. Several witnesses who did testify that the solicitation of their signatures was misleading did not actually sign an authorization card.

   
   

4. The employee representatives that solicited signatures did emphasize that the purpose of signing the authorization cards was to guarantee a bargaining election. The fact that the cards authorized the Miami-Dade FHEA to be the collective bargaining representatives was played down in at least several solicitations. Since, however, the employer has denied ,a request of the union for voluntary recognition, whatever misrepresentation there may have been at the time is now rendered moot.

   
   

   PARAPROFESSIONALS

   
   

5. There are three categories of paraprofessionals at Miami-Dade Community College: (a) Instructional Assistant I, (b) Instructional Assistant II, and (c) Associate Instructor. There are varying degrees of qualifications required for these three positions. Instructional Assistant I requires four years of high school plus one year of experience and the Associate Instructor requires a bachelor's degree plus three years of work experience. (The work experience need not necessarily be in the same field that the paraprofessional is hired.) Instructional assistants may have such duties as theater manager, ticket sales, running a language lab, and maintenance.

   
   

6. Associates Instructors generally act as backup to faculty. They do high level clerical tasks and may approach instructional duties in the same manner as a faculty member. Of all the three paraprofessionals the Associate Instructor most closely is aligned with the faculty. The Instructional Assistant I and II are far from being professional employees and act in a variety of capacities, none of which in any way were demonstrated to involve responsibilities of a professional nature. However, for the Associate Instructor, the requirements and duties of such a position of which there are approximately thirteen in the college as a whole are very close to that of the faculty in general. There is no general college policy to promote paraprofessionals to openings in faculty positions.

   
   

   CHAIRPERSONS

   
   

7. Miami-Dade community College is organized with the following general hierarchical rank: (This varies somewhat from campus to campus.) The president and board of trustees are at the top, followed by a vice-president, dean, division director, chairperson, and regular faculty. Chairpeople are hired generally by a selection made by the division director. The faculty may or may not participate in a selection of a chairperson. After reviewing candidates, the division director makes a choice which either may be approved or disapproved by the president. The chair is appointed for one year by letter. Department heads can receive no continuing contract or tenure as chairpersons, but department chairpeople do earn tenure as a faculty member while in the position

   of department chairperson. Department chairpeople get a salary supplement which varies from between $360 to $2,300 per year. By far the preponderance of supplements are $1,200 per year.

   
   

   Duties and Responsibilities

   
   

8. All chairpersons carry teaching loads. Department heads and faculty are credited for duties on a point system. Various functions are designated a certain point quality and each employee is required to carry a load of 60 points in the fall and winter term and 48 points in the spring-summer terms.

   Department chairmen get points for what are described managerial duties by the college. Regular faculty members do not get points for managerial duties. On the average for a full year, department chairpeople ,get more credit for instructional than managerial work. For example a full fall load is 24 points for management and 36 points for instructional. In the spring and summer quarters, which are shorter than the fall and winter terms, the department chairpeople generally have more administrative duties and their point credits would be higher for management during this time of the year. This increase in administrative work is caused generally by the preparation for the new fall and winter quarters.

   
   

9. However, merely because the college calls many of these duties management, does not mean they fall under definition of management as found in Chapter 447, Florida Statutes. If a faculty member is receiving credit for noninstructional duties in his position as chairperson, this does not mean that these duties are truly managerial within the framework of the statute. Only the description of the duties, powers and responsibilities of department heads can resolve the issue as to whether department heads are part of the faculty or part of the administration.

   
   

10. Within their respective departments, department chairs evaluate the faculty in their department. This is done on a regular basis and consists of filling out an evaluation form and adding whatever comments are deemed to be appropriate. However, each faculty member can appeal their evaluation all the way up to the president of the college. The structure of the administration of the college might be described as a straight line with all final decisions resting in the president or the board of trustees. Any faculty member or any other employee may appeal a decision concerning him all the way to the top. The promotion of faculty is based upon these evaluations. The recommendation of the chair for promotion goes up the ladder for approval and are often but not always followed. The chairman has no final say on promotion of faculty within his department and the college has several committees which might become involved in a faculty member's appeal for promotion. When a vacancy in a department occurs, the chairman is responsible for submitting recommendations for hiring to the division director. The chairperson initiates the hiring of faculty members. It is extremely unlikely that a department chairperson would have a faculty member forced upon the department without his approval, but jet is not uncommon for a faculty member's recommendation to hire an instructional person to be denied. Generally, the chairperson also within his department surpervises the faculty and generally sees to problems which might arise among the responsibilities of that whole department.

    
    

    Budget

    
    

11. The department chairperson is responsible for submitting his department's budget request for each year. Most of the available money which a department will use is not subject to any discretionary use as it is mostly

    earmarked for salaries. Department chairpersons do have some latitude in how money is spent, particularly with the regard to the hiring of full-time or part- time personnel and the use of travel money. The submission of the budget does not involve a great amount of discretion or independent judgement, but merely reflects the chairpersons requests for whatever expense money he feels necessary to run the department. The chairperson hires what secretarial help is needed in each department and there is little interference from the higher administration with this responsibility.

    
    

    Bargaining and Policymaking

    
    

12. Considering the large faculty (approximately 900) within the community college and the amount of department chairs that presently exist (approximately 80), in addition to the fact that there are division directors, deans, vice- presidents and presidents above chairpersons, it is difficult to see how chairpersons would "reasonably be required on behalf of the employer to assist directly in the preparation for and conduct for collective bargaining negotiations ought to have a major role in the administration of agreements resulting therefrom." (Section 447.002(4)(b), F.S.) Although Vice-President McCabe testified that chairpeople would be expected to engage in collective bargaining on behalf of the employer, since chairpeople have no power to formulate policy or make decisions which would bind the college as a whole, it seems unlikely that chairpersons could actually do so. If department heads were required to assist in the collective bargaining process, then the employer would be represented by persons without authority to bind or speak on behalf of the employer in any way. Such a situation would not be in the spirit of Chapter 447, Florida Statutes.

    
    

13. The manner in which a chairperson may run a department is largely left up to the individual. Some may consult with other faculty members on general decisions, others may act more independently. However, the most a chairperson can do is make a recommendation to the administration. Department heads have no power to formulate policy on behalf of the employer.

    
    

    Designation of Chairs as Faculty

    
    

14. The college has traditionally treated chairpersons as instructional faculty and not as management or administration. There is some evidence that the chairpersons consider themselves faculty and not administration or management. The chairpersons are eligible for continuing contract as faculty while in the capacity of chairperson. Division directors and deans are not. A faculty member can never get tenure as a department chairperson, but while in that position the time they put in is credited toward tenure requirements. Administrators do not have this right. Furthermore, the college, several years ago, determined the chairperson's duties are predominantly not administrative, but instructional. The college (Employees' Exhibit F --- dated March 20, 1973) divided personnel into faculty (instructional) and administrative. That memo defined personnel as administrative who spend more than 50 percent of their time directing, scheduling and supervising other employees, evaluating and recommending the employment and termination of other employees, allocating, managing and scheduling resources and facilities, and serving in positions involving planning, development and utilization of personnel resources and facilities. Instructional personnel were defined as those whose duties involve primarily teaching, library and learning resources. Department chairs are defined as instructional. By definition of the college policy manual, chairpersons are not academic administrators.

15. Management is a part of the administrative process; consequently, the above determinations must necessarily include the decision on the part of the college that chairpersons are not a part of management. The reason the college designated chairpersons as nonadministrative was so they can be eligible for tenure while acting as chairpersons. This is presently the college policy as noted above. The underlying reasons for this was that the college in good faith believed that chairpersons were truly instructional faculty and not administrative or managerial. That decision appears tantamount to a decision that the regular faculty and chairpersons share a community of interest.

    
    

16. Subsequent actions on the part of the administration of the college which appear to designate chairpersons as managerial were done with the recently passed Public Employees Relations Act, Chapter 74-100, in mind and solely in an attempt by the college to exclude chairpersons from a faculty bargaining unit. Other reflections of chairpersons; faculty-instuctional orientation are that on the faculty senate there are no restrictions on membership of chairpersons, but there are restrictions on those of higher academic positions. (This is true for the North Campus.) On the South Campus those who are in positions above department chairpersons cannot even be on the faculty senate. The school catalog lists chairs as faculty and not administration. Of the various advisory committees among the campuses of the college which include the campus council, appeals committee and faculty senate, as noted above, chairpersons are aligned with the faculty, not the administration.

PROGRAM COORDINATOR

At the conclusion of this hearing, there was general agreement program coordinators on the faculty could be considered in the same light as department chairpersons. The program coordinator occupies the same relative position in a department that a chairperson does, program coordinators are used in situations where a particular program is not large enough to be glorified by being made a separate department with a department chairperson. Program coordinators conduct the same administrative functions as department chairpeople, but on a smaller scale because of the smaller size of the units under their responsibility.

Entered this 1st day of August, 1975, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Vince Napoli, President Miami-Dade FHEA

Post Office Box 430303 South Miami, Florida 33143

Public Employees Relations Commission Suite 105, 2005 Apalachee Parkway

Tallahassee, Florida 32301

W. Reynolds Allen, Esquire and Donald T. Ryce, Jr., Esquire Hogg, Allen, Ryce & Norton

225 Alcazar Avenue

Coral Gables, Florida 33143

Roger Schindler, Esquire and Jay Freeman, Esquire

Simon & DuFresne

1492 South Miami Avenue, Suite 208 Miami, Florida

Docket for Case No: 75-000068

Orders for Case No: 75-000068