================================================================= AGENCY FINAL ORDER

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STATE OF FLORIDA

PUBLIC EMPLOYEES RELATIONS COMMISSION

FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE,

Petitioner,

vs. CASE NO. 8H-RC-756-2050

DOAH CASE NO. 75-145

CITY OF WINTER PARK,

Respondent.

/

ORDER

Irving Weinsoff, of Weinsoff, Weinsoff and Carney, Miami, attorney for petitioner.

Charles R. Fawsett, Orlando, attorney for respondent.

On January 1, 1975, the FLORIDA STATE LODGE, FRATERNAL ORDER

OF POLICE, Petitioner herein, filed a Petition for Certification pursuant to Section 447.307(2), Florida Statutes (1975), and Fla. Admin. Code Rule 8H-3.02.

A Hearing Officer from the Department of Administration, Division of Administrative Hearings held a public hearing on May 6, 1975, 1/ to take evidence on the issues presented by the Petition. As a result of an unfair labor practice charge filed by the Petitioner against the CITY OF WINTER PARK, Respondent herein, the hearing was continued until July 8, 1976. On August 20, 1976, the Hearing Officer issued a Hearing Officer's Report. No exceptions to the Hearing Officers's Report were filed by either party.

The Commission has considered the record and the Hearing Officer's Report in light of the oral argument. 2/ The Commission hereby affirms the Hearing Officer's findings of fact.

The Petitioner proposed a unit consisting of all sworn officers of the Winter Park Police Department excluding Chief of Police, Deputy Chief and Captain. At the hearing on July 8, 1976, the Petitioner in effect amended the original petition to exclude the positions of Chief, Deputy Chief, Captain, Lieutenant, Detective Patrolman in the Special Investigative Unit and Meter Maids. Both parties stipulated to the appropriateness of the exclusion of these positions. Thus, the parties are in agreement regarding the appropriate unit except for Petitioner's assertion that Sergeants are properly included in the unit. The Respondent contends that the Sergeants are managerial or supervisory personnel, and therefore should be excluded from the proposed unit. The Petitioner contends that Sergeants are not Managerial employees and do not exercise sufficient supervisory authority to raise a conflict of interest between Patrolmen and Sergeants.

Respondent also, at the hearing, objected to the sufficiency of the Petitioner's showing of interest since the authorization cards submitted by the Petitioner named the Fraternal Order of Police, Lodge No. 64 rather than the Petitioner. The Respondent also asserted that Lodge No. 64 is not an employee organization within the meaning of Section 447.203(10), Florida Statutes (1975).

Finally, Respondent contended that the Petition should be dismissed since the Petitioner was not registered at the time the demand for recognition was made or at the time the petition was filed.

The CITY OF WINTER PARK has a City Manager form of government. The Police Department constitutes one department of the city government. The Chief of Police reports directly to the City Manager. The Police Department itself is composed of the Chief of Police, a Deputy Chief, a Captain, four Lieutenants, six Sergeants, 43 Patrolmen, 12 Civilians, and an undetermined number of Meter Maids. The salaries of all employees of the City of Winter Park are established by the City Commission. The base pay for each grade of officer within the Police Department is established by the Commission and all officers in that grade receive the same pay except for incremental increases based upon years of service.

All sworn officers are members of the same retirement system with the exception of one officer who has elected not to join the retirement system for personal reasons. Similarly, all sworn officers a members of the Civil Service System of the city with

the exception of the Chief and Deputy Chief. All members of the Civil Service System are subject to the rights and obligations of the Civil Service Law. There has been no history of collective bargaining in the city.

The Chief of Police is responsible for the administration, operation and management of the Police Department. The Chief formulates policies which are applicable throughout the Police Department concerning standards of conduct, job performance, appearance, and procedural guidelines relating to both administrative and tactical operation. Although certain rules and regulations relating to administration of the Department are not final until approved by the City Manager, internal procedures of the Department are developed solely by the Chief of Police.

The Deputy Chief is the primary operational assistant to the Chief and performs all duties assigned to him by the Chief. With few exceptions, all matters relating to the administration of the Department pass through the Deputy Chief to the Chief. The Deputy Chief makes effective recommendations with regard to the hiring, discharge, promotion and discipline of personnel, approval of budget requests by subordinate officers, and in similar matters relating to the administration of the Police Department. He also assumes the duties of the Chief when the Chief is absent.

The Captain in the Police Department is the, head of the Operations Bureau which consists of a Patrol Division, Traffic Division, Canine Division, Lake Division and Reserve Division.

The Captain's primary function is to coordinate the activities of the Operations Bureau. In that regard, he is the link between the shift commanders and heads of other divisions, and the Deputy Chief. The Captain has the authority to effectively recommend the employment, discharge, and institution of disciplinary action against personnel assigned to the Operations Bureau.

There are four Lieutenants within the Winter Park Police Department. Three Lieutenants are assigned as shift Commanders within the Operations Bureau. The duties of the fourth Lieutenant within the Patrol Division would be the same as the duties performed by the other three Lieutenants in the Operations Bureau. Although the Lieutenants have minimal responsibilities in the hiring of individuals, they review the evaluations of the personnel assigned to their shifts or bureaus, have authority to award days off, assign Patrolmen or Detectives to specific duties and functions, enforce Department rules, policies and regulations, and make effective recommendations on disciplinary matters to the Captain or Deputy Chief. The Lieutenants spend a majority of

their work day in administration of their shift or bureau, although they do perform some law enforcement duties. The Lieutenants attend the regular staff meetings with the Captain, Deputy Chief, and Chief.

There are six Sergeants within the Winter Park Police Department. Two Sergeants are assigned as assistant shift commanders in the Operations Bureau and one as a shift commander in the Patrol Division. One Sergeant is assigned to the Detective Bureau, another is the head of the Crime Prevention Unit (CPU), and the remaining Sergeant is head of the Traffic Division of the Operations Bureau.

The Sergeants are assigned a certain number of Patrolmen to work under their immediate supervision. The Sergeants assign duties to Patrolmen in accordance with general instructions and general office policies. The Sergeants oversee the duties of Patrolmen and make certain that these individuals are properly discharging their functions. In addition to insuring that the administrative procedures, rules, policies and regulations of the Department are enforced, Sergeants recommend disciplinary actions to their superiors (either a Lieutenant or a Captain), prepare records and reports as directed, and inspect the appearance and preparedness of officers and their equipment. Sergeants participate in patrol work with Patrolmen. The degree of such participation depends on the particular division in which the Sergeant works. Sergeants do not, however, take part in the formulation of policy or have any role in personnel administration or employee relations. Nor do they take part in the preparation of the budget, other than making suggestions to superiors that may or may not be adopted by the City. While Sergeants in the Winter Park Police Department spend much of their time in a supervisory capacity, most of their decisions are of a routine, ministerial nature, carefully circumscribed departmental policy, rather than involving or requiring significant independent judgment.

The Crime Prevention Unit is a new organization within the Police Department and is operated by a Sergeant. The function of the unit is to provide direct contact with the citizens of Winter Park to advise them of ways in which they can lower their vulnerability to crime. In addition, members of the unit plan and carry out special projects in high crime areas designed to apprehend criminals based upon analysis of particular patterns and trends in crime statistics. The Sergeant in charge of the unit Supervises two Patrolmen and is responsible to the Captain. This Sergeant participates in stakeouts and other tactical operations with the Patrolmen. This Sergeant is also responsible for the

processing of applications for new employment. However, testimony reveals that this Sergeant's involvement is strictly limited to routine clerical functioning. He makes no recommendations or evaluations with regard to the employment of any applicants.

The Sergeant in the Detective Bureau works under the supervision of a Lieutenant. The Detective Sergeant is responsible for the evaluation of new cases assigned to the Bureau and the assignment of cases to the Detective Patrolmen within the Bureau. In addition, since the work days of the Lieutenant and she Sergeant in the Detective Bureau are staggered to obtain maximum supervision of personnel, the Sergeant spends approximately three hours per day as the head of the Detective Bureau. The duties and authority of the Detective Sergeant are essentially the same as those of a Patrol Sergeant within the Patrol Division of the Operations Bureau.

The Patrol Division Sergeants perform their duties under the supervision of the Lieutenant in charge of a shift. The Sergeant is primarily responsible for the performance evaluations of patrolmen. He insures that officers on his shift are trained and that the rules and policies of the Department and directions of the Lieutenant are carried out. He can recommend disciplinary action to a Lieutenant but does not possess independent authority to discipline employees beyond minor reprimands or, in case of emergencies, short suspensions. The basic difference between the functions of the Sergeant and those of the Lieutenant are that Sergeants are more actively involved in the actual law enforcement duties and spend a great percentage of their time actively engaged in law enforcement.

The Sergeant in charge of the Traffic Division functions similarly to the Sergeant in charge of the CPU. This Sergeant assigns the work of three traffic enforcement Patrolmen.

Additionally, this Sergeant performs the same duties as Sergeants in the Patrol Division. He is also responsible for conducting traffic surveys, traffic studies, approval of traffic plans relating to new construction, and making recommendations with regard to traffic control signs and equipment. The Traffic Sergeant is also responsible for responding to complaints from citizens with regard to traffic violations, and for the conduct of the traffic officers in relation to the public.

The testimony reveals that there is some interchange between the various divisions of the department. When circumstances warrant, for instance, the CPU and Detective percent Bureau operate together. The Sergeants of the various divisions could be

interchanged if necessary, although there have been few instances when this would be necessary. In addition, in the absence of a Sergeant, the Patrolman who scored the highest on the Civil Service exam takes his place.

The Special Investigative Unit (SIU) presently consists of one Detective Patrolman. This employee is charged with the investigation of allegations of misconduct within the Police Department. This employee also conducts background investigations for potential applicants for employment by the Police Department. This Detective Patrolman receives his investigative assignments directly from the Chief or Deputy Chief and makes his reports to those individuals. In carrying out his assigned duties, this employee exercises a high degree of personal discretion and may be called to account for his activities by the Chief or the Deputy Chief. The record indicates that this position is highly sensitive and requires the investigation of members of the Department without regard to their rank, status or assignment.

The record testimony also establishes that investigations of this individual have formed the basis of Personnel actions against Patrolmen. The parties have stipulated that the personnel assigned to SIU, work in a unique capacity with the Chief and Deputy Chief.

Patrolmen participate in day to day police work with the specific purpose of preventing and pursuing violations of the law. The parties have stipulated that Patrolmen were appropriately included in the unit.

The FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, is an

employee organization within the meaning of Section 447.203(10), Florida Statutes (1975).

The CITY OF WINTER PARK is a public employer within the meaning of Section 447.203(2), Florida Statutes (1975).

The Respondent raised objections to the Petitioner's showing of interest. No objection to the number of cards was raised.

However, the Respondent did object to the fact that the authorization cards submitted by the Petitioner designate the Fraternal Order of Police, Lodge No. 64, rather than the Petitioner. This contention is totally without merit since the designation of a subsidiary organization of the petitioner, is, for the purpose of determining the sufficiency of petitioner's showing of interest, a valid designation of the petitioner. See, New Hotel Monteleone, 127 NLRB No. 1092, 46 LRRM 1154 (1960).

Since the Fraternal Order of Police, Lodge No. 64 is affiliated

with and in effect a subsidiary of the parent organization which is the Petitioner, the authorization cards submitted by the Petitioner designating Lodge No. 64 can validly constitute the Petitioner's showing of interest. No reasonable person could be confused by this discrepancy. Accordingly, the Commission holds that the Petitioner has Satisfied the 30 percent showing of interest requirement of Section 447.307(2) of the Act.

In addition, the Respondent questioned whether Lodge No., 64 was an employee organization within the meaning of Section 447.203(10), Florida Statutes (1975). Since the Petitioner has been found to be an employee organization within the meaning of the Act, and the authorization cards designating Lodge No. 64 can be used to support the Petitioner's showing of interest, it is irrelevant whether or not Lodge No. 64 is an employee organization within the meaning of the Act. The Act requires only that the petitioning organization qualify as an employee organization. In view of the above, the Commission finds it unnecessary to address this objection of the Respondent.

Finally, Respondent has requested that the petition be dismissed because the Petitioner was not registered either at the time the demand for recognition was made or at the time the petition was filed. An investigation of the Petitioner's registration file reveals that it became substantially registered on November 11, 1974, and completely registered on February 28, 1975.

In Laborers' International Union of North America, Local 666 Local 1306 and Local 1240, vs. Public Employees Relations Commission and Florida State Employees Council No. 79, AFSCME, AFL-CIO, 336 So.2d 450 (Fla. 1st. DCA 1976), the Court held that where petitioners were in compliance with registration requirements at the time the Commission met to consider their intervention request, that the Commission's concurrence with the Chairman's revocation of petitioner's intervenor status amounted

to abuse of discretion, and that petitioners, under the particular circumstances they faced at that time, should have been given a reasonable time to comply with registration requirements.

Since Petitioner, in the instant case, was completely registered by the time Respondent challenged the petition at the hearing, and since there is no prejudice at this point to Respondent if Petitioner is allowed to proceed with its petition, the Commission holds that Respondent's objections in this instance are without merit.

The parties have stipulated to the exclusion of Chief, Deputy Chief, Captain, Lieutenant, Meter Maids and the Special Investigative Unit Detective Patrolman. Additionally, the parties have stipulated to the inclusion of Patrolmen. The Commission has held that it will accept stipulations by the parties regarding the appropriateness of the unit if the stipulation is not repugnant to the policies and purposes of the Act. District Council #66, International Brotherhood of Painters and Allied Trades and Hillsborough County Aviation Authority, Case No. 8H-RC-752-0182, PERC Order No. 76E-897, 2 FPER 54 (April 5, 1976). Based upon the record and the Hearing Officer's Report, the Commission finds that the stipulations of the parties referred to above are in accord with prior Commission decisions establishing bargaining units in municipal police departments. Consequently, the stipulations of the parties are accepted, with the following provision: Only unsworn Meter Maids, are to be excluded from the unit. Therefore, if any meter maids should be sworn police officers, they are appropriately included in the unit with patrolmen.

Although the Respondent contends that Sergeants are managerial employees within the meaning of Section 447.203(4), Florida Statutes (1975), no petition for their designation as managerial employees was filed. Based upon the record evidence and the Hearing Officer's Report, the Commission holds that Sergeants exercise supervisory authority which creates a conflict of interest between the Sergeants and the employees they supervise. Therefore, they should be excluded from the unit. The Commission need not decide whether Sergeants are managerial employees as defined by Section 447.203(4), Florida Statutes (1975), in the absence of a petition filed by the Respondent.

The Commission, in resolving the conflict of interest question, is required to consider the degree of supervisory responsibility of the various police department employees. Orange County PBA and City of Orlando, Case No. 8H-RC-746-2033, PERC Order No. 76E-444 (1975).

While it appears that some of the six Sergeants exercise supervisory authority which is similar to that of lead men in private industry, some do appear to have supervisory duties which create a conflict of interest with the patrolmen they supervise. Also, some sergeants have high level supervisory duties in a capacity that is only temporary, yet a conflict of interest is nonetheless present while they are performing those duties.

In Florida State Lodge Fraternal Order of Police and City of Clearwater, Case No. 8H-RC-756-2180, PERC Order No. 76E-935, 2 FPER 70 (May 3, 1976), the following observations were made:

The dispute as to the inclusion or exclusion of sergeants must be resolved in the light of

facts adduced on the record of the instant case. Although the Commission has included sergeants in the bargaining unit with rank and file employees in a substantial number of cases involving police departments, we have not

found units excluding sergeants to be inappropriate per se and have certified several rank and file units that excluded sergeants. E.g., Pinellas County PBA and City of St. Petersburg, PERC Case No.

8H-RA-756-2095, (Commission Order

75C-72-197-278) (July 3, 1975); Pinellas

County PBA and City of Kenneth City, PERC Case No. 8H-RA-756-2156 (Commission Order (September 10, 1975). In each of the units which excluded sergeants from the rank and file, sergeants exercised authority in the name of the Employer that would have led to conflicts of interest within a more comprehensive unit.

This is true here. Consequently, based upon the record in this case, the Commission finds the Sergeants to have a conflict of interest with patrolmen which mandates their exclusion from the rank and file unit.

Pursuant to Section 337.307(3)(a)(1), Florida Statutes (1975), and Fla. Admin. Code Rule 8H-3.25, the Commission orders that an election by secret ballot be held within forty five (45) days for the following unit:

INCLUDED: All sworn officers in the classifications of Patrolmen and Meter Maids.

EXCLUDED: Police Lieutenants, Captains, Sergeants, Special Investigative Unit, Detective Patrolmen, unsworn Meter Maids, all other sworn commissioned officers in the City of Winter Park Police Department and all other employees of the City of Winter Park not specifically included.

It is so ordered.

PUBLIC EMPLOYEES RELATIONS COMMISSION LEONARD A. CARSON, CHAIRMAN

ROSE MARY FILIPOWICZ, COMMISSIONER

M. KALMAN GITOMER, COMMISSIONER

For and By Direction of the

PUBLIC EMPLOYEES RELATIONS COMMISSION

LEONARD A. CARSON CHAIRMAN

77E-368

THIS IS TO CERTIFY that on June 23, 1977, this document was filed in the office of the Public Employees Relations Commission at Tallahassee, and a copy served on each party at its last known address.

PUBLIC EMPLOYEES RELATIONS COMMISSION

BY:

A. M. PARKER

CLERK- EDITOR TITLE

ENDNOTES

1/ On April 2, 1975, the parties were notified that a hearing would be held pursuant to 447.307(3), Fla. Stat. (1975), and Fla. Admin. Code Rules 8H-3.16 and 8H-3.10. On May 6, 1975, and July 8, 1976, the hearings were conducted by a Hearing Officer from the Department of Administration, Division of Administrative Hearings. At those Hearings all parties were given the opportunity to appear and present evidence.

2/ On November 15, 1976, the parties were notified that the Commission would hear oral argument on the issue presented by this case pursuant to 447.307(3)(a), Fla. Stat. (1975), and Fla. Admin. Code Rule 8H-3.25. On November 30, 1976, oral argument was held before the Public Employees Relations Commission.

Docket for Case No: 75-000145

Orders for Case No: 75-000145