STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PASCO COUNTY SCHOOL BOARD, )
)
Respondent, )
)
vs. ) CASE NOS. 75-1127; 75-1128;
) 75-1129; 75-1130;
) 75-1347
PASCO CLASSROOM TEACHERS ) PERC NOS. 8H-CA-754-1037; ASSOCIATION, ) 1040; 1041; 1062
) and 1082
Charging Party. )
)
RECOMMENDED ORDER APPEARANCES
For Respondent: Joe A. McClain, Esquire
McClain, Hobby and Greenfelder Post Office Box 4
Dade City, Florida 33525
For Charging Sidney L. Matthew, Esquire Party: Simon and DuFresne
208 West Pensacola Street Tallahassee, Florida 32304
For Public Jack L. McLean, General Counsel and Employees Pat Renovitch, Esquire
Relations 2005 Apalachee Parkway
Board: Tallahassee, Florida
The subject cases were tried before the undersigned at New Port Richey City Hall, New Port Richey, Florida, on September 23, 24 and 25 and on October 8 and 9, 1975. 1/ The charges in cases 1037, 1040, and 1041 were filed on or about April 24 and copies were served on Respondent on or about May 7. Charges were filed in cases 1062 and 1082 on July 11 and on July 17, respectively, and copies were timely filed on Respondent. A consolidated Complaint and Notice of Hearing was filed and duly served on the parties on or about September 4, pursuant to Rule 8H-4.09 of the Commission a rules and regulations. In its Answer, the Respondent denied any violations of the act and alleged certain affirmative defenses which will be specifically referred to hereinafter. The Complaint in Case No. 1037 alleges that on or about March 24, the Respondent, through its agent, failed, refused, and continues to fall and refuge to employ Ronald Eckstein on a continuing contract basis for the academic year 1975-1976 and that the Respondent refused to grieve the discharge of Ronald Eckstein as was its obligation based on a contractual provision which provides for final and binding resolutions of grievances and disputes arising under a contract entered into by the parties, which by its terms is effective from August 6, 1974, to June 30, 1975. The Complaint in Case No. 1040 alleges that the Respondent terminated Sharyn Disabato and continues to fail to reinstate or rehire her to her former
or substantially equivalent position of employment based on her union or other protected concerted activities. Further, the Complaint alleges that the Respondent refuses to grieve the termination of alleged discriminatee, Sharyn Disabato, pursuant to Article 12 of the above referenced agreement. In Case No. 1041, the Complaint alleges that the Respondent terminated Fred Rydzik and continues to fail to reinstate or rehire him to his former or substantially equivalent position and also that it continues to grieve the above described act pursuant to Article 12 of the agreement in effect between the parties. In Case No. 1062, the Complaint alleges that the Respondent, by its agents, unilaterally adopted a salary schedule for all bargaining unit employees effective July 1 which amounted to a 5 percent wage reduction on all employees in the certified bargaining unit. The Complaint alleges further that the Respondent unilaterally froze every employee's increment step increase which was to become effective July 1 and also that the Respondent unilaterally reduced supplements paid to employees by 5 percent. Additionally, the Complaint alleges that the Respondent, by its agents, unilaterally postponed previously scheduled preschool planning days for employees in the certified bargaining unit. In Case No. 1082, the Complaint alleges that the Respondent refused to process dues authorizations of unit employees in violation of Section 447.303, F.S. As stated, Respondent filed Answers denying the allegations set forth in the Complaints and Amendments and as an affirmative defense, averred that the command of the State Constitution and Section 231.351 and Section 231.36, Florida Statutes, conferred authority upon the Respondent to retain a teacher on annual contract during the fourth year of employment under conditions set forth therein end that pursuant to such authority and by the agreement and consent of alleged discriminatee, Ronald Eckstein, who was retained on annual contract rather than on continuing contract, it complied with said sections and pertinent state statutes. Further, the Respondent avers that the retention or nonretention of nontenured teachers and the appointment or reappointment of department chairmen are not grievable matters under the terms of the parties collective bargaining agreement.
Finally, the Respondent alleges that alleged discriminatee, Ronald Eckstein, failed to exhaust the administrative remedies available to him under the referenced collective bargaining agreement. The Respondent urges the same defense for its actions based on the alleged discrimination of employees Fred Rydzik and Sharyn Disabato. As an affirmative defense to its alleged unilateral adoption of a salary schedule, the Respondent avers that Section 236.02(3), Florida Statutes, requires it to provide contracts to all instructional staff at least one month prior to the beginning of the school year, which in this case, began on July 3, and therefore that it was necessary to adopt a salary schedule on June 3, 1975, in compliance with state law and State Department of Education regulations.
All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument and to file briefs. Respondent's Counsel was afforded the opportunity to file a brief but did not do so. On December 8 and 11, counsel for the General Counsel and the charging party respectively filed briefs. Upon consideration of the entire record, and upon my observation of each of the witnesses, I make the following:
FINDINGS OF FACT
The business of the Respondent.
Respondent is, and has been at all times material herein, created directly by the Constitution of the State of Florida and constitutes a Department or administrative arm of the government that is administered by individuals who are
responsible to public officials or to the general electorate. At all times material herein, the Respondent is engaged in and has been engaged in the business of operating a county school system in Pasco County, Florida.
The labor organization involved.
Pasco Classroom Teachers Association is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act.
The issues.
Whether the Respondent unlawfully refused to employ Ronald Eckstein on a continuing contract status; whether it unlawfully refused to reappoint him as department chairman and whether it unlawfully refused to grieve the above acts in violation of Florida Statutes.
Whether the Respondent unlawfully terminated Sharyn Disabato and also, whether the Respondent unlawfully failed to grieve the termination of Sharyn Disabato pursuant to Article 12 of the parties collective bargaining agreement.
Whether the Respondent unlawfully terminated Fred Rydzik and whether it unlawfully refused to grieve the termination of alleged discriminatee, Fred Rydzik.
Whether the Respondent unlawfully adopted a salary schedule which amounted to a 5 percent wage reduction for employees in the certified bargaining unit; whether it unlawfully froze every employee's increment steps and three; whether it unlawfully reduced all supplements paid to bargaining unit employees and also whether it unlawfully postponed previously scheduled preschool planning days.
Whether the Respondent unlawfully refused to process dues authorizations card executed by bargaining unit employees in violation of Section 447.303 of the Act.
Alleged unfair labor practices.
(a) The Facts
The Pasco Classroom Teachers Association, hereinafter sometimes referred to as PCTA, was certified by the Public Employees Relations Commission, hereinafter sometimes referred to as PERC, on April 17, 1975, as the exclusive representative of the certified personnel employed by the School Board, except those who hold supervisory authority specifically excluding the Superintendent, Assistant Superintendents, District Level Supervisors, Directors, Principals, Assistant Principals, and Curriculum Assistants from functioning as a second-in- command in the building. The PCTA and employer were as stated parties to a collective bargaining agreement which by its terms was effective August 6, 1974, through June 30, 1975. Larry Smith is PCTA's designated bargaining agent and Ronald Forguson is the Employer's designated bargaining agent. The Respondent employs approximately 2500 instructional employees throughout the county at 25 or more locations or school districts. The employer operates in a manner which is somewhat unique to most school districts in that a school year begins in approximately July of each year and the instructional personnel work a 45 day schedule and they are off approximately 15 days. This system is referred to as the Track system and there are 4 tracks described as A, B, C and D. Alleged
discriminatee, Sharyn Disabato, was employed by the employer from the school year 1973 through June of 1975. Ms. Disabato testified that her duties consisted of providing an atmosphere for students to learn science, math, social studies, art, music and physical education at Schrader Elementary School, where she was employed. Schrader is an open school, which means that there are no classroom areas partitioned off and all student's and teachers are somewhat visible at all times. Disabato's students consisted of fourth, fifth and sixth graders. Her most recent employment contract was for a 196-day period beginning July 24, 1974 through June 30. She testified that she was very active in curricular activities as well as extracurricular activities. For an example, she testified that she served on the construction committee, which was a committee formulated to provide input for an addition to the facility. Ms.
Disabato testified that she sponsored the bus patrol group and assisted several teachers on science projects and assisted new teachers in locating resource materials, filing cabinets, new books and to generally review the overall physical plant. During her last year of employment, she received the "Teacher of the Year" award for her school. Her principal at Schrader Elementary School gas Larry Robison. She also served as the building presentative, which meant that she handled grievances filed by the other teachers. She assisted Mr. Larry Smith in contacting her fellow employees to execute payroll deduction authorization forms. She was approached by her principal sometime in October of 1974 and was asked by him to form a committee of volunteers to make up the association's building committee. That committee was designed to present and resolve grievances that the other teachers were experiencing at the school. She also asked employees to serve on the committee to "maintain the collective bargaining agreement". She was the assistant committee chairperson and during committee meetings, Mr. Robison attended. Mr. Robison also asked her to schedule all building committee meetings. She joined the union at the inception of her employment with the employer. Beginning in January of 1974, she researched the contract and proposed and formulated several provisions which are now presently contained in the contract. She also served on the bargaining team during January of 1974; she conducted surveys and spent approximately 3 hours, 3 times each week for a total of more than 100 hours preparing contract proposals. According to her testimony, in addition to the above activities in which Mr.
Robison would know of her union activities, she also indicated that her name appeared on several union flyers which were distributed throughout the facility and also, on one occasion, she was approached by Mr. Robison, who at that time told her that "bargaining wasn't what she thought it to be." At Schrader, during the school year 1974-75, there were approximately 580 students and approximately 26 instructional personnel. She testified that the building representative association meetings were conducted on a monthly basis and that she presented and resolved grievances which were filed by both union as well as non-union members and that she acted as a conduit for resolution of all employee grievances. Sometime prior to November, Disabato testified that she mentioned to Mr. Robison that all vacancies had to be advertised, whereupon Mr. Robison approached Mr. Smith and asked him if that was in fact the case. According to Disabato, Smith informed Mr. Robison that vacancies were to be advertised.
During January 1975, Disabato began formulating new contract proposals and a flyer was distributed around the school building, which somewhat depicted her activities in this regard. She testified that Mr. Robison may have seen the flyer. The alleged discriminatee testified and the record reflects that she often criticized school and administration policies and in those instances in which she felt that the contract was being violated by the administration, she would immediately call such to their attention. She testified further that Mr. Robison did not take kindly to such criticism. She testified that during the school year 73-74, she received an outstanding rating and at no place on her evaluation form did there appear any teaching deficiencies. During school year
74-75, she indicates that she was evaluated by Mr. Robison sometime in February 1974. On that evaluation, she testifies that Mr. Robison informed her and noted on her evaluation form that she needed improvement as to her rapport with fellow employees. Also, that as to her personal qualities, she was uncooperative.
Specifically, he mentioned an incident wherein she had interceded on behalf of another fellow teacher, Mayna Radacky, and that her interjection upset Mrs.
Radacky. When she was presented with the evaluation form, the alleged discriminatee felt that she needed a witness present and at that meeting she took Mrs. Radacky along with her. On voicing her objections to the alleged deficiencies noted on the evaluation form Mr. Robison merely indicated to her that she lacked rapport with her fellow employees and aside there from, he was very unspecific. Upon receipt of this evaluation, Ms. Disabato wrote a letter to Mr. Robison indicating her dissatisfaction with the evaluation and she relayed this to him by giving a letter to his secretary. According to M. Disabato, Mr. Robison told her that her letter would be attached to her evaluation. By letter dated March 14, Ms. Disabato was informed that she would not be rehired. When asked the reason, Mr. Robison informed her that "he would hire someone to do a better all-around job." Ms. Disabato testified that she did not request a written list of reasons for Mr. Robison's refusal to rehire her. She testified that her attitude with Mr. Robison was very good prior to her participation in negotiations for the collective bargaining agreement, but thereafter Mr. Robison's attitude, in her opinion, changed. She testified that after her participation in negotiations, problems occurred on a daily basis for her to resolve. She testified that during a faculty meeting held sometime in November December 1974, Mr. Robison announced to the faculty members that "you do not have a guardian angel" and their problems should be addressed to him.
During the beginning of the 1974-75 school year when all of the faculty personnel were introduced, Ms. Disabato indicated that Mr. Robison omitted introducing her to the other faculty members and that such omission was purposeful on his part inasmuch as he was reading from a printed list and further that the same situation occurred on another occasion. She indicates that after all the other instructors were introduced, Mr. Robison tried to pretend that the omission was inadvertent and he thereupon introduced her.
Sometime in September or October of that year, Disabato testified that she was called in to a conference with Mr. Robison whereupon he indicated that she was insubordinate to him; that she did not respect him, and that he "should be respected." He also told her at that time that she was a "gutsy lady and that if this had occurred three years earlier, she'd be walking the streets. Upon learning of Ms. Disabato's discharge or nonrenewal of her contract, a petition was circulated by other teachers supportive of Ms. Disabato and approximately one-half of the instructional personnel signed such petition. In an effort to resolve her non-renewal grievance, Ms. Disabato first talked to Larry Smith and they completed a grievance form. On various occasions, Smith and Ms. Disabato attempted to meet with Mr. Robison in an effort to resolve the grievance to their satisfaction, and on each occasion, Mr. Robison refused to meet with them. Ms. Disabato, when asked, knew of no other contract teachers who were not rehired during the school year 1975-1976. On cross-examination, Ms. Disabato related two instances wherein grievances advanced by her to Mr. Robison were resolved. Specifically, she raised an objection to a janitor vacuuming the halls during school hours and this procedure was stopped. Also, with regard to posting vacancy announcements, Mr. Robison, subsequent to her protest, advertised all vacant positions. She also worked with and mutually resolved the problem or a problem regarding long distance phone calls and the utilization of subs during the school year. She also reiterated on cross-examination the fact that her name was deliberately omitted from other lists, but she was not specific in indicating other lists which her name was omitted from as she previously testified to on direct examination.
Larry Smith, PCTA's Executive Director, testified that he attempted to grieve the non-renewal of Sharyn Disabato's contract by initially attempting to contact Mr. Robison by telephone sometime in mid-March, 1975. Thereafter he called Dr. Ferguson with no success. The next day he contacted Mr. Robison and Mr. Robison informed him that he would contact him the following Friday. On or about March 21, Smith called Dr. Forguson by telephone and he would not accept the grievance indicating the the grievance was invalid and the non-renewal of an annual contract teacher was not a grievable item. He was also, at that time, instructed by Mr. Robison to deal a with Dr. Forguson. Smith made several attempts to send a written grievance to Mr. Robison and Dr. Forguson and on each occasion the grievance was returned. The procedure of sending a grievance by certified mail was also futile. Finally, the association's president, David Suttle, was able to get the grievance served by the sheriff's department, but the Respondent, and/or its agents, would not hear the grievance. Smith testified that they failed to accept the grievance in order to "prevent binding arbitration." Smith states that Superintendent Thomas Wateman and their counsel, Mr. Joe McClain, gave this opinion. Smith testified that not only M. Disabato's grievance would be handled in a similar manner, but that Ronald Eckstein and Fred Rydzik's or any other grievance of a similar nature would not be a matter subject to the grievance provision of the collective bargaining agreement. Smith stated that they (the Respondent) made it clear to him that grievances dealing with renewal of a contract was not a grievable item under the contract. Thereafter, Smith indicated his opinion that the grievance was not appealed to level 3 because it would be futile to do so based on his prior attempts. Smith testified that employees voiced extreme concern about their job security after Ms. Disabato's contract was not renewed and that several employees, specifically the annual contract teachers who are non-tenured, asked to withdraw their authorizations for payroll deductions of their dues check-off.
Larry Robison has served as the principal at Schrader Elementary School for approximately 3 years and he is in charge of the overall operation of the school. He testified that in the employment process, he makes what is essentially the final recommendation in that an employee cannot be hired, that is, an instructional employee, cannot be hired without recommendation by him to obtain a teaching position at the school. Robison testified that he evaluates new teachers approximately 3 times annually and that both annual contract teachers and continuing contract teachers are evaluated only once per year. Robison testified that the evaluation process consists of conferences, both informal and formal visits, and that in making his evaluation, he relies on mental notes primarily. He testified that in instances wherein he notes deficiencies in an instructor's teaching skills, he advises them of such deficiencies and provides ample time for them to correct any deficiencies that, in his opinion, are warranted. He testified that the amount allotted a deficient teacher varies according to the teacher's ability to correct the problem that he notes. Robison testified that he was aware of Ms. Disabato's position as the building representative in 1973 and that this fact was a matter of common knowledge throughout the school. He was also aware of her participation on the union's bargaining committee during school year 1973. He also admitted asking either Ms. Disabato or Richard Culp to formulate the building committee, which was in his opinion, a forum to resolve grievances.
David Suttle, PCTA's vice president and an elementary teacher at Elfers School for approximately five years was called and testified that he was a "building rep" for the school year 1973-1974 and served on the negotiating team for 1974 and 1975. Suttle testified that the binding arbitration provisions included in the contract was based on passage of Florida Statute 74, Chapter 100
and Chapter 447, Florida Statutes. Suttle testified that PCTA attempted to grieve the matter of Ms. Disabato's separation, but that the Respondent refused to accept the grievance and that based on the fact that this grievance was not accepted and the employer failed to grieve it, the union felt that it would be futile and fruitless to attempt to grieve the discharges of the other two discriminatees contained in the consolidated Complaint. 2/ Suttle testified that the union received the letter from the sheriff's department indicating that they would no longer serve grievances filed by the union. Suttle testified that during a union meeting with management in mid-May, 1975, the employer indicated that they had the right to determine "what was or was not a grievable matter." Suttle testified that the subject charges were filed when it became clear that issues regarding the renewal or non-renewal of annual contract teachers would not be accepted. Suttle testified also that during this meeting in mid-May the employer was informed that unfair labor practices would be charged with PERC based on their failure to accept the grievance regarding the non-renewal of annual contract teachers. Suttle testified that various employees indicated to him that they felt reprisal would be taken if their union activities were known by the employer. Suttle testified that union deduction authorizations were cancelled and that salaries were unilaterally cut. Suttle testified that the fear of reprisals was not only confined to union members but also to non-union members as well.
After Suttle was examined and excused, the general counsel and the charging party rested their case with regard to the allegations contained in Case No. 1040. At the outset of the defense to the charge in this case, the Respondent made a Motion to Dismiss which the undersigned denied, based on his opinion that the general counsel and charging party had presented a "prima facie" case.
Respondent's Defense to CA-1040 3/
Minnie Kownach, secretary to Mr. Robison for approximately three years, testified that on March 24, 1975, Larry Smith visited the office at approximately 2:30 p.m. She advised Mr. Robison of Mr. Smith's presence. Mr. Robison was in the office interviewing another teacher; she buzzed Mr. Robison and he asked her to tell Mr. Smith that he would be glad to see him at another time. She testified that Mr. Smith stayed in the office and at approximately 2:45 on that day, Ms. Disabato came down and she and Mr. Smith stayed until approximately 3:00. She testified that Mr. Smith did not make an appointment to see Mr. Robison on that date, i.e., March 24.
Marsetta Haspelhorn, assistant principal at Schrader since January, 1974, testified that she was on the team with Ms. Disabato and Sharyn Watson for a period of time and that she observed Ms. Disabato's teaching. She testified that she had a conversation with Ms. Disabato about the non-renewal of her contract when she learned about it, and during a break during April, 1975, in the teachers' lounge, she asked Ms. Disabato not to file unfair labor practice charges inasmuch as it would "ruin her reputation." She testified that Ms. Disabato informed her the "the union would take care of her." She testified that she and Ms. Disabato are friends. She testified that Ms. Disabato is an effective teacher; however, her discipline leaves something to be desired. She testified that Ms. Disabato sometimes stops a pupil and tells him that he should not be doing something and that she is "harsh with the students." She testified that Ms. Disabato is vocal if another employee or person expresses views contrary to her own. She testified that she was aware that Ms. Disabato had problems with some teachers; however, she "got along with others", She testified that she and Ms. Disabato were not on good terms and that she did not try to
help new teachers, whereas other teachers helped. She testified that Ms. Disabato was antagonistic towards Mr. Robison and that this attitude was pervasive and increased as the year progressed. She noted no change in the attitude or demeanor of employees since Mrs. Disabato's separation and that employees of Schrader are "always open." She testified that the employees never expressed any fear or reprisal for voicing complaints. She acknowledged that Mrs. Disabato was the building committee representative. She testified that Mrs. Disabato always questioned school practices during faculty meetings and that she did so more frequently than other employees. She testified that she was not a union member because she felt that she did not "need the union's backing." She testified that although no teachers other than Mrs. Disabato complained to Mr. Robison, they were not afraid of him. She testified that she never observed Mr. Robison refusing to speak to Mrs. Disabato or to introduce her. She testified that Mr. Robison omitted her name in an open house meeting and that she did not take it as an insult. She testified that Mrs. Disabato and Mrs. Radacky had a good relationship and that Mrs. Disabato approached Mrs.
Radacky about the problem regarding the students missing the bus. However, she testified that she did not overhear Mrs. Disabato tell Mrs. Radacky not to take the students home. She testified that the separation of Mrs. Disabato has had no effect on the employees' freedom of expression at the school and that Culp was a building "rep" during the time that Mrs. Disabato was a building representative and is still employed and continues to serve as a building representative. She testified that Mrs. Disabato has an "explosive personality" and that if she cannot get things her way, she would walk away with a "sarcastic" look. The charging party introduced a telegram into evidence which purports to be a message to Mrs. Disabato signed by Carolyn White, Mary Garrison, Sue Walsh, Jane Foteys, Karen Johnson, Russ Willie, James Baretti, Tom Barnard, Gene Turner, over the Respondent's objection. The hearing officer received the exhibit into evidence. On cross examination Mrs. Haspelhorn testified that she did not know whether Mrs. Disabato was well thought of by her peers. She testified that she purchased a home from Mr. Robison. She testified that the problems of Mrs. Disabato and Mr. Robison related to school policies, and that the problems were not union related. She testified that she was unaware of Mrs. Disabato's union activities. She testified that Mrs. Disabato complained of school practices and often disagreed with school policy and that her disagreement was aired in a "loud tone." She testified that Mrs. Disabato told her that she would be employed by the union. She also testified that the other employees have not talked to her about Mrs. Disabato's separation.
Leona Supurka, an elementary teacher at Schrader for the past two years, was called and testified that she has been employed in Maryland and in Pennsylvania as a teacher for approximately 16 years. She testified that she did not work in close proximity to the alleged discriminatee, and that she (Mrs. Disabato) did not offer any assistance to her. She testified that Mrs. Disabato's attitude toward the principal was rude and it was the type of rudeness in which she had never experienced a teacher voice to a principal. She testified that she was presented with a petition supportive of Mrs. Disabato on two separate occasions; that she refused to sign it and also that she resented being approached on two occasions by employees who felt that she should sign the petition. She also testified that Mrs. Disabato was disruptive and not always with, and in fact, frequently questioned school policies. She testified on cross examination that Mrs. Disabato offered no assistance to her. However, she also testified that no occasion arose wherein the alleged discriminatee would have needed to assist her. She testified that Mrs. Disabato expressed rude manners in faculty meeting on two occasions that she could recall In late September or early October, 1974. She testified that on one occasion Mrs. Disabato disagreed with the arrangement or timing of the lunch schedule and that
Mrs. Disabato was insubordinate at faculty meetings. She testified that in her opinion, the employer is the boss and the employee should go along; that if there is disagreement, it should be voiced in a private conference. She testified that she was of the opinion that Mrs. Disabato was a disruptive influence on the faculty at Schrader and that she probably discussed this fact with Mr. Robison during the school year.
Catherine O'Conner, an employee of approximately ten months in Pasco County, testified that she does not know Mrs. Disabato as a teacher, but that she was approached on two occasions to sign a petition supportive of Mrs. Disabato. She also testified that she felt intimidated by being approached on two separate occasions, inasmuch as she had voiced her opposition to signing the petition. Mrs. O'Conner testified that she did not know whether or not Mrs. Disabato was irrational or not and she was very vague about meetings regarding the presentation of contract to teachers within the "required" 30-day period. She testified that the contracts were presented later and that she was upset that the contracts were not presented timely. She could not recall if Mrs. Disabato assisted her when she became a teacher at Schrader.
Larry Robison, the principal at Schrader, was called and testified that he received an evaluation by PCTA in mid-May, 1975. He testified that he was unaware that Mrs. Disabato was a union officer. He testified that his decision to non-renew Mrs. Disabato's contract had nothing to do with union activities. He testified and the record evidence shows (see Respondent's exhibit no. 4, which is received in evidence) that his overall rating was 3.4 out of a possible 5. He testified that he received his lowest evaluation in the areas of (1) reacting positively to constructive criticism; (2) seeks to lessen the non-teaching burden by avoiding excessive paper work and supervises without favoritism by equalizing teaching loads and administrative assignments. He testified that he was aware that Mrs. Disabato was a building rep and that she was a union member. He testified that in early 1974, Mrs. Disabato was very active in the union. He testified that he could have discussed Mrs. Disabato with other faculty members. He testified that he discharged Mrs. Disabato based on her behavior, her rudeness to students, her poor rapport with peers and uncooperativeness. He also testified that he also discharged her based on her difficulty with regard to "getting along with the administration." He testified that the Radacky incident played a small part of his decision to non-renew Mrs. Disabato's contract. Mr. Robison testified that he was the party who upset Mrs. Radacky during the incident. He testified that he left a note to Mrs. Radacky indicating that he was sorry that he caused her to be upset and that he was sorry that he had created discord with one of her peer groups. However, in an affidavit given to the Public Employees Relations Commission dated on or about May 29, he testified that the reason he discharged Mrs. Disabato was based on her harshness, her lack of cooperation, and interference with other affairs of the building that's none of her business. He later testified on redirect that she was not rehired because she was a building representative, nor did he observe any increase in her union activity during the prior year. On re-cross examination, he testified that he made the decision independently not to rehire Mrs. Disabato.
Gary B. Potts, teacher-coach and department chairman, social studies, Hudson High School, testified that he knew Ron Eckstein and that he did not tell Ron Eckstein or anyone how he got to be department chairman. He testified that he received more votes than anyone in the recommendation to the principal for the social studies department chairmanship. He testified that he did not vote in the election and that there were perhaps five or six employees in the social studies department who would have been eligible to vote for the recommendation.
He testified that prior to the election, there was a lot of conversation regarding the vote and as to how the department was being run under Mr. Eckstein's chairmanship. He testified that he talked to approximately two of the four or five employees in the social studies department regarding their vote and the chairmanship election and that on one occasion Mr. Coy Pigman, the principal, called him in to ask him if he would assume the chairmanship if offered. He also testified that he spoke to a Mr. Ronald Clayback, an employee in the math department. He testified that he was a union member, however, there was some mix up in his dues authorization and the authorization had not been either executed on time or the Respondent was not deducting the dues pursuant to his dues check off authorization.
Margaret Rose De Jong, a teacher at Hudson Senior High School from July 1974 through November 1974, testified that she resigned her duties at Hudson due to Ronald Eckstein; however the reasons cited in her resignation indicated that she resigned due to health reasons. She testified that she disagreed with Ronald Eckstein and Mr. Sinholtz, also an employee instructor in the social studies department and when she attempted to interject new ideas in the classroom, they were met with extreme criticism from Eckstein and Sinholtz. She testified that Mr. Eckstein attempted to utilize the inquiry method in a classroom setting of approximately 40 to 50 students and that that procedure was not a proper one in a class of that size. On cross examination she testified that she never spoke to Mr. Pigman regarding the stated reasons in her resignation letter. She also testified that she suffered a miscarriage approximately one month after leaving her duties at the school. She testified that health reasons played no part in her decision to resign.
Case No. 1037
Jerry Morriss, an employee of Gulf High School since 1970 and the current PCTA vice president testified that he served on the negotiating team and he was the chief negotiator for the parties current collective bargaining agreement. Morriss testified that the contract contains specific language pursuant to Florida Statutes 74.100 regarding sick leave, grievance procedure, etc. He testified that he had filed grievances and that he has known Ronald Eckstein since the 1973-74 school year. He testified that Eckstein became a union member in the summer of 1973, and that Coy Pigman, Principal, knew of Eckstein's union activities based on the fact that Eckstein was a building representative. In March 1975, he testified that Pigman told him that his attitude towards him had changed. He testified that Eckstein was Instrumental in filing a grievance protesting the overlap in the teachers work schedule i.e., the 5 period vs. the 6 period day. He testified that during March, 1975, Eckstein showed him a copy of what in actuality is a renewal of his employment status only on an annual contract basis as opposed to a continuing contract. He testified that Eckstein accepted the annual contract status inasmuch as he felt that it was his only employment opportunity as Mr. Pigman was not recommending him for employment on a continuing contract basis. He testified that Eckstein asked for but was not given a list of deficiencies. Sometime in April of 1975, he testified that the issue regarding Ronald Eckstein's renewal on an annual contract basis was brought up and he was of the opinion that Eckstein was entitled to a list of reasons as to what area(s) he was deficient in. He testified that he discussed procedural due process requirements and to that Pigman did not respond. He testified that Pigman sought his advice regarding Eckstein and Pigman indicated to him that Mr. Eckstein was "riling up". According to Morriss, Pigman told him that teachers should come to him individually and not collectively. He testified that the principal told him that Mr. Weightman, the superintendent, attempted to abort his contract. On
cross examination he testified that he had no direct knowledge that Eckstein applied to the county for a continuing contract but that he was present when Eckstein accepted the 4th year annual contract employment. He reiterated the fact that the principal sought his advice on many matters. He testified that Eckstein was a good teacher and his performance was better than some teachers that Pigman gave continuing contract status. He testified that he informed Mr. Pigman that he was as good as Don Roland (apparently an employee whom Mr. Pigman had given a continuing contract) and that Pigman nodded in approval. On redirect Morriss testified that as a result of Mr. Eckstein's separation, the union was experiencing a more difficult time signing members, that employees are concerned about their union activities and the union is concerned about its loss in membership. Morriss testified that he did not feel inhibited.
Ronald Eckstein, the alleged discriminatee herein, was a teacher at Pasco County for approximately 3 years and testified that he was County Social Studies Chairman during the school year 1973-74 and he was a member of the skills committee during the school year 1974-75. During the school year 1973- 74, he received the "Teacher of the Year" award at Hudson Senior High, he was a member of the chess club, the faculty scholarship fund, co-sponsor of the student government association, a union member since 1973, an executive board member, a county parliamentarian, building representative during the school year 1973- 74, an FEA member during school year 1973, chairman of the constitutional revision committee and during school year 1974-75, senior building representative which required him to coordinate all building representatives.
In addition, he presented grievances to the principal and organized the teachers to support the principal, Coy Pigman, to the school board. He also testified that he informed the principal of the elected members of the PCTA. He testified that on one occasion, Pigman asked him how the collective bargaining agreement negotiations were going. Be also distributed union materials in the school and his picture is on the inside cover page of the collective bargaining agreement which is Petitioner's Exhibit no. 3 received in evidence. During January 1974, Mr. Pigman, the principal, asked Eckstein why were problems relayed through him. He testified that he handled complaints for both union as well as non-union members. His testimony is that during the late part of the 1974-75 school year, the principal told him that PCTA was drawing lines and that the principal associated him with the "Uniter", which is a union publication. Eckstein was evaluated by Mr. Pigman on approximately March 21, and at that time Mr. Pigman informed him that he was "having difficulty filling out his evaluation. He testified that Mr. Pigman questioned him regarding Pigman's receipt of an anonymous letter written by a parent which was critical of some teaching practices allegedly attributed to Mr. Eckstein. He testified that Mr. Pigman failed to be specific regarding any deficiencies that he might have in his teaching abilities. He testified that overall he was graded either excellent, outstanding or not applicable, but he was rated needed improvement in the areas of not accepting comments favorably and that Pigman indicated to him that his teaching methods were good and he was knowledgeable, active and reliable. He testified that Pigman informed him that he did not like to rate teachers exceptional or outstanding. Eckstein asked Pigman if he would receive continuing contract and he replied that he was having a "difficult time".
Specifically, that he had a "feeling" which he (Pigman) could not put in words. Eckstein testified that he was told by Pigman that he was more effective than others whom he had given continuing contract status. Eckstein testified that he accepted the annual contract offer because he had no alternative and that when he asked Mr. Pigman for the reasons, he replied that he "was not obligated to state reasons for denial of continuing contract status". Eckstein asked Pigman for a letter indicating the reasons for the denial of continuing contract status and also that he was extremely concerned about Pigman's "feelings". Pigman
replied that he thought it would be a good idea for him to serve a 4th year on annual contract status. He testified that during a meeting during the early part of the school year he was given a letter noting that he "failed to meet the educational requirements of the community". (See Charging Party's Exhibit No.
19 received in evidence.) During that same year Eckstein was not awarded the social studies department chairmanship. Eckstein testified that he did not attempt to grieve the non-renewal of the continuing contract or of his failure to be awarded the chairmanship. He testified that he was told (apparently by Pigman) that he was "too enthusiastic". Eckstein testified that the "too enthusiastic" remark related directly to his union activities; that he has been ostracized since the non-renewal of his continuing contract; that this event inhibited other employees from freely associating with him especially the annual contract teachers and that based on this action he was declined to serve as building representative. Eckstein testified that he was asked by Pigman whether or not he wrote various articles of the "Uniter".
Coy Pigman, Principal, Hudson Senior High School for the past 2 years and prior thereto served as guidance counselor for approximately 3 years, was examined as an adverse witness based on his position as principal. Pigman testified that in making the recommendation for a continuing contract teacher he consults with his curriculum advisor and evaluates classroom performance as well as other responsibilities. He testified that he also consults with his assistant principal as to whether or not a particular employee he has in mind should receive a continuing contract. He testified that if an instructor is not given verbal or written deficiencies, he would expect that that teacher would expect to be renominated on a continuing contract basis. He testified that he prefers dealing with teachers on a professional basis rather than a written basis or via written communications. He testified that in evaluating instructors he utilized day to day staff contacts. He testified that he made the recommendation regarding the departmental chairmanships during the first two weeks in April testified that he rated Eckstein strongly but that after the evaluation he told him to be "more tactful". Pigman testified that it was not uncommon for instructional personnel to have personality differences but that several employees were forced to resign due to differences that they had with Eckstein. Pigman testified that the problems with regard to personality differences were personal in some instances, for example, a Mr. Corvalis, but that as the differences related to other staff instructional personnel, the problem was significant. He related an incident regarding Ms. De Jong, who testified that she was harassed and that Mr. Eckstein made her appear immature in the presence of fellow teachers, and that the curriculum assistant and the assistant principal made similar remarks to him. He testified that according to the resignations records, Ms. De Jong resigned based on ill health, however, in actuality, she resigned due to her differences with Eckstein. Pigman also related an incident regarding a student who had been sent to see the dean by Mr. Eckstein and when the dean, Gus Manticus, was informed that the student had filled out her own discipline slip, Mr. Manticus sent the student back to Mr. Eckstein's class. There-after, Mr. Eckstein approached Mr. Manticus and shouted, "Why did you send her back to my class" Pigman testified that he asked Mr. Eckstein to refrain from yelling at his dean, Mr. Manticus. Pigman testified that he granted Eckstein leave to attend the FEA convention and the he told Mr. Eckstein to keep politics out of the school. He said he did this on a precautionary measure and that to his knowledge the witness did not engage in any politics during school hours. He testified that during Mr. Eckstein's evaluation he noted the resignations that had allegedly been occasioned by difficulties regarding personality clashes and the anonymous letter received from a parent. He testified that he thought that Eckstein was in fact the teacher whom the letter was directed to because Virginia Collins (also an
instructor at the school) indicated that she was having a difficult time with students following her lesson plans and that when he visited Mrs. Collins' class, one of the students stated Mr. Eckstein and gasped and closed his mouth in a surprised manner, which in Mr. Pigman's opinion concluded that Mr. Eckstein had in fact made a statement that students should be able to choose their lesson plans; that the students outnumbered the faculty and that in a democratic society they should be able to voice their opinions. Pigman testified that he used the evaluation form as a motivational item and that he gave Eckstein a 4th year annual contract due to differing philosophies and actions. He acknowledged the fact that Eckstein was not the only teacher whom he had differing philosophies with. Be noted that Eckstein was above average and that he possessed outstanding teaching abilities and techniques, that he was not irrational or militant. He testified that he denied Eckstein the chairmanship for the social studies department based on his non-recommendation to him by his fellow instructors. He testified that he rated Eckstein as needing improvement regarding students making their own decisions with regard to what they do in class. He also acknowledged the fact that he told Eckstein that he was "over zealous". He testified that he was aware that PCTA opposed the superintendent, Mr. Weightman's, nomination. Be also testified that he knew that Mr. Eckstein was actively involved in union activities. He further recalled meetings he had with Mr. Eckstein regarding the resolution of grievances. Pigman testified that he and Eckstein had a good relationship until school year 1974-75. He testified specifically that Eckstein was not given the chairmanship due to personnel problems and recommendations in the social studies department. He also emphasized that Eckstein possessed good abilities and techniques. Pigman testified that he was unaware that the professional practices code required him to give any instructor who requests such a list of written deficiencies. On cross examination, Pigman testified that he made the decision independently regarding appointing Eckstein as a annual contract teacher rather than a continuing contract teacher.
Kenneth B. Sennholtz, Jr., an employee in the social studies department was called and testified that he has known Mr. Eckstein for approximately three years. He testified that he was present during the meeting with Mr. Pigman and Mr. Eckstein in which Eckstein received his evaluation. He also testified that during that same time he received his evaluation he and Eckstein reversed roles as witnesses for receipt of their evaluations. He testified that he was impressed that the principal liked the teaching techniques, the professional preparation of developing the social studies curriculum but that the principal stated that he had "this feeling" about Eckstein. He testified that he did not quite understand what Mr. Pigman's "feelings" were but that he knew that as a teacher, Mr. Eckstein was "more effective than other teachers". He testified that Mr. Pigman informed him that employees had left and that he knew they left but it's not Mr. Eckstein's fault; that Mr. Eckstein was not to blame and that Mrs. De Jong had personal illness. He testified that Mr. Pigman later learned that it was due to the difficulties that Mrs. De Jong and Mr. Eckstein were experiencing. Sennholtz testified that he asked Mr. Pigman why he wasn't advised that other members on the social studies staff were having difficulties with him whereupon Mr. Pigman indicated that he felt that they were not that important. Sennholtz testified that Eckstein was rated outstanding or one below in most categories and that he was not aware of or knew exactly how to incorporate Pigman's "feelings" into the evaluation form. He testified that Pigman indicated reservations about filling in needs improvement on the evaluation but that he did not know where else to put it. He testified that Eckstein was not given his evaluation but he was permitted to look through his personnel file. He testified that Pigman informed him that form A was strictly an "inhouse" form and that it would not be placed
in Eckstein's personnel file. On form B Eckstein was rated outstanding or exceptional in all ranges. Sennholtz testified that Eckstein asked Pigman if he would be considered for continuing contract and he replied that it was "a difficult question". Sennholtz testified that Mr. Pigman informed him that he intended to align himself with Mr. Weightman during the coming school board election and that he was aware that he, Eckstein and the union actively supported the incumbent superintendent Ray Stuart. Pigman advised Mr. Sennholtz that he would not hold his or Eckstein's political differences against them. He testified that Pigman's philosophy was one of "fitting students into the society" whereas Eckstein's philosophy was one of "developing students to their maximum potential; that society is dynamic and students should be so prepared". Sennholtz also testified that Eckstein and he had done an excellent job in dealing with controversial issues which Pigman noted and that he would handle such issues in a similar manner if he was in a classroom. Sometime during October, 1974, Pigman and Sennholtz had a conference regarding the anonymous letter which is charging party's exhibit no. 20 received in evidence. According to Sennholtz, Pigman called a conference to rebut or to be prepared for any charges that might arise as a result of the "anonymous" letter, and that he paid little credence to the letter inasmuch as the party failed to identify themselves and further that the comments would not be used against them in any manner. Sennholtz related an incident regarding a problem with the stage door during a play in which Mr. Eckstein was involved. He testified that Manticus slammed the door and the door fell down and Eckstein indicated to Manticus that the door was important whereas Manticus jokingly said that "he would fix it; it's simple to fix." Eckstein disagreed but remained calm according to Sennholtz.
Sennholtz testified and the evidence is clear that the Pasco County Teachers Association supported the incumbent superintendent Steward whereas Corvalis, according to Sennholtz, stated that the union should not endorse a candidate but that if one was in fact endorsed, it should be Mr. Weightman. Sennholtz testified that Eckstein and De Jong had little or no contact but that he and De Jong worked together as a team. He testified that De Jong wasn't happy because there was a lack of independence with regard to the track program and that Eckstein modified the program to satisfy Mrs. De Jong. He testified as to problems, small problems, with Lucinda South but that they were basically political and philosophical differences and that as to the alleged difficulty with Virginia Collins, Eckstein and she are good friends. Sennholtz related his opinion that Eckstein's demotion inhibited the employee association; that they fear reprisals and that its difficult to recruit building representatives because they are fearful of criticizing board policies. He testified that he is more cautious in his dealing with school rules and regulations because he does not want to inadvertently violate a rule or regulation which could be regarded as "just cause" for his dismissal. On cross examination he testified that he had no knowledge of any family problems that existed between Eckstein and his wife and that they are mutual friends; that he (Eckstein) according to his information, was experiencing no financial difficulties, that he recently purchased a home and was thinking of purchasing a pool etc. He also testified that he attached little credence to the 'anonymous' letter and also the principal asked them to "forget about it." He testified also that Potts asked Eckstein why wasn't he selected chairperson inasmuch as Potts was only at the school approximately 1 year whereas Eckstein was a better teacher and that the opposition (to Mr. Weightman) resulted in discrimination, i.e., quasielective (appointive) positions were given to those who supported Mr. Weightman, i.e., the dean, the assistant principal, etc. He testified that no union member was given a higher position than they previously held after January, 1975. He testified that after Eckstein's nonrenewal of continuing contract, it is
difficult to solicit union members. He also testified that Weightman advised employees to cancel their dues authorization forms. He testified that he noticed that Eckstein had gone through an entire school year receiving commendations and was suddenly "framed." He testified that Pigman asked Eckstein for a copy of the collective bargaining law in January and Eckstein gave a copy to Pigman. He testified that Pigman forced his respect and acknowledged the right of employees to have philosophical differences and that he (Pigman) advised that he noted "an appreciable increase in his union activities." He testified that he and Eckstein supported Mr. Pigman in obtaining the principalship at his school. He testified that Pigman felt that he was being put up to do things by Mr. Eckstein. He also testified that Pigman was given a copy of all union materials and that Mr. Eckstein was told to report directly to him.
Respondent's defense to CA 1037
Richard Coot, Assistant Principal, Hudson Senior High School testified that he tallied the votes in the social studies department. The evidence surrounding the tally is reflected in Respondent's Exhibit no. 5 admitted into evidence over the objection of the Charging Party based on the fact that copies were not the "best evidence." Coot testified that he tallied the ballots on or about April 15.
Coy Pigman was recalled and testified that he was aware that both De Jong and Kratovill resigned due to difficulties with Eckstein. He denied telling anyone that he placed instructor Rodey on continuing contract status although he was a better teacher than Eckstein. Pigman testified that he received an overall evaluation of 2.6 by PCTA. Pigman testified that Eckstein's union activities played no part in his decision to not renew his continuing contract. He testified on cross examination that Eckstein cooperated with him on filling out discipline slips and he also indicated he asked Rose De Jong to write a list of difficulties that she had with Ronald Eckstein. He testified that he was unaware of any health problems of Mrs. De Jong however in later testimony, he acknowledged that he was aware that health problems existed at the time of her resignation. He was unclear as to whether he was testifying that the health problem played a part but that the health reason would be the easiest way out rather than to cite the health reason which then would just be a pretext for the real reason i.e. the difficulty with Ronald Eckstein. He testified that in March, 1975, the determination was made that based on projections that at least two new teachers would be needed in the social studies department, however, the two individuals who allegedly would be permitted to vote (recommend) were not told that they would be in the social studies department. Specifically, the record tends to indicate that they were Mr. Carvealis and Mr. Manticus. He testified that he made an error in his affidavit and that there was no rating of the social studies department chairmanship recommendations. He states that he appointed Potts as chairmen of the social studies department because in his opinion "he was a better teacher than Eckstein."
Case No. 1041
Fred Rydzik was employed by the county in September of 1973, as a substitute teacher and approximately 10 days later he was appointed a full time substitute teacher. Thereafter in January of 1973, he was appointed to a full time position and he was employed through June 30, 1975. His lest employment was at Gulf Jr. High School where his principal was James Campbell. Rydzik served as co-sponsor for the conservation club during the school year 74-75, he sponsored several field trips, managed the publication of the yearbook for the
school year 74-75 end in order to do this, he gave up his planning period. He was also on the guidance committee, coach for the "powder puff" football team, chairman of the tutorial committee based on the selection by the guidance counselor, director of the energy management center and he taught power and industrial arts as a substitute teacher. As a full time instructor, Rydzik taught English and Personal Development. He testified that during his evaluation by Mr. Campbell, he was asked to sign blank evaluation forms in Spring 1974. He was evaluated as being effective. Rydzik refused to sign blank forms because in his mind it was not a proper thing to do based on his prior military experience. During the spring of 1974, he became involved with employees who were trying to form an affiliate of the American Federation of Teachers (a labor organization). He testified that several co-workers approached him about forming an affiliate and during the summer of 1974, in a conversation with Campbell, Campbell spoke to him about the union not being viable. Campbell, according to Rydzik concurred and suggested some building association (i.e. an in-house employee group) rather than a union. During the fall of 1974, he testified that Monique Lefebre, his department chairman, told him that he would have to wear a tie. Thereafter he was called into the office and was asked by Campbell "why wasn't he wearing a tie?" Campbell told him that "he would wear a tie." Rydzik testified that he was unaware of any rule or regulation which prohibited an instructor from coming to school without wearing a tie however he complied with Campbell's directive. The effort to form an affiliate of AFT was unsuccessful although Rydzik testified that he successfully solicited and obtained signed authorization cards for approximately 160 employees. He testified that the AFT president denied a charter to Pasco County, due to political infights. In late September, 1974, Rydzik spoke to PCTA's president Larry Smith about merging the solicited employees with PCTA and that conversation resulted in the solicited employees merging and joining PCTA as a joint group. Rydzik testified that Campbell was aware of his union activities based on conversations he had with him and because his name appeared on various flier's which were distributed throughout the school. Rydzik testified that during early spring 1975, he spoke at a faculty meeting regarding a union meeting and the principal told the faculty that they didn't have to remain whereas they had been asked to remain for other activities such as pitches for the sale of life insurance and cookware sales and other utensils on the school's proper. Rydzik testified that he was rated effective in most areas in his evaluation but that he was rated as needing improvement in the area of turning in his plan book. Rydzik testified that he asked Campbell what he meant about needing improvement and Campbell replied that "he heard that his plan book was on most occasions, turned in late." He testified that his plan book would be one or two days late. Rydzik testified that in order to rectify his problems regarding his plan book, he talked to various experienced teachers who shared ideas and that each teacher who observed his plan book indicated that his plan books were better than most. He testified that two week units, a planning period, was a requirement whereas he was required to submit three week units and that his percentages were always rejected whereas other teachers were not.
Rydzik testified that he did not grieve his problems regarding his plan book because of his annual contract status and also because various teachers warned against grieving that matter. Rydzik testified that criticisms regarding his plan book grew worse as the year proceeded and although he tried to correct whatever problems he experienced, he was never able to do so. He testified that to his knowledge, he was never personally observed by Mr. Campbell or Mrs.
Lefebre in the classroom. However, he testified that during his evaluation he was told that "he had a good class." During the evaluation he was criticized about not patrolling bathroom duties as scheduled, however, he testified that he in fact followed the schedule. Rydzik testified that he was tardy approximately six times during the school year (school started at 6:30 am.). He states that
on two occasions he was late approximately 15 minutes, and four or five times he was late less then 10 minutes. He also testified that on two occasions he was late as much or more than an hour. 4/ On April 2, 1975, Rydzik returned to work after having been on a 15 day off duty track and was at the time told by Campbell that he would not be recommended for employment. Rydzik asked Campbell why he was not being recommended for employment for the coming school year and Campbell replied "he could get someone better all around." Rydzik testified that he and other union members including Larry Smith, had discussed this problem and Smith informed him that he would not file a grievance inasmuch as similar grievances had been rejected by Respondent. He testified that Campbell informed him that he would reply to his request for a written list of deficiencies but Campbell never replied. He testified that he was a member of the bargaining team, that proposals were formulated sometime in January, 1975, and the bargaining sessions commenced during the spring of that year. In addition to serving on the bargaining team, Rydzik ran for the union vice president but lost that election. Rydzik testified that he received his second evaluation which is Charging Parties no. 25 received in evidence on the date therein noted although the date of the writing is different from the date that he actually received it. That is, the observation period as reflected on the exhibit covers a period from June 1974 thru June 1975 whereas Rydzik received it on April 22, 1975. Rydzik testified that he was regarded as the information source regarding any contract problem and fellow employees constantly inquired of him the status of the contract. He testified that the Math Department Head, Mr. Gibson, inquired of him regarding suggestions during January thru March of 1975, and he was viewed by him as a leader regarding contractual knowledge.
Charging Parties no. 26 is a petition supportive of Rydzik and is signed by approximately 35 of the 60 instructors. Rydzik testified that employees were fearful to associate with him especially the annual contract teachers due to their financial obligations. He testified that several employees indicated that "if the union could not protect its own certainly it could not protect them." Rydzik testified that Mike Thomas of PCTA cautioned against his taking an active role in the union inasmuch as he was on annual contract rather than other employees who had tenure and could provide the leadership.
James Campbell, the principal since February, 1972, was called and examined as an adverse witness. Campbell testified that there are approximately
75 instructional personnel including the support personnel. He testified that he evaluates on the basis of his daily observation of employees end that he hired Rydzik based on a recommendation of a Mr. Tucker. He testified that he evaluated Rydzik at least once although according to regulations he was required to do so at least three times per year. Charging Parties no. 27 received into evidence is the evaluation of Fred Rydzik. Campbell testified that he rated Rydzik in the low to strong areas in most categories and that he was "satisfied with his work." He denied ever asking Rydzik to sign a blank evaluation form. He recalled calling Rydzik in to discuss the incident regarding his not wearing a tie during school hours. He testified that Rydzik informed him that he could grieve the matter but that he would wear a tie until the grievance was resolved favorably on his behalf. He recalled the faculty meeting wherein Rydzik was introduced as a union representative. He testified that he called Rydzik in to inform him of his tardiness and his failure to fulfill his bathroom duties. He testified that Rydzik was late as much as 5 minutes on two occasions and 30 minutes on several occasions; he also recalled the problem with regard to Rydzik's planbook. He testified that his rapport was somewhat weak in that he failed to speak with and listen to his department head. The only deficiency notes on his evaluation was lateness in turning in his planbook. He was aware of no other instructional personnel that Rydzik had problems with. Campbell testified that Rydzik inquired why he was not being recommended for employment
for the coming school year whereupon he informed him that it was a personnel cutback. He testified that he lost a total of six employees and he filled three of those positions which included a Spanish instructor and an industrial arts instructor. He testified that Rydzik was not appointed or recruited for the industrial arts position inasmuch as he lacked state certification in industrial arts. Campbell testified that he did not respond to Rydzik's request for a written list of deficiencies because he felt that that was "within his discretion." Campbell testified that he did not personally observe Rydzik. He testified that he would see Rydzik in the hall and around the campus but he relied on the evaluations of his curriculum assistant and the assistant principal and it was his own decision not to rehire Rydzik based on his discretionary authority. Campbell testified that he retained teachers normally with effective evaluations. Campbell testified that from the period of March 21, which was the date of his first evaluation of Rydzik thru April 2, 1975, which was the period that he made the decision not to renew or rehire him, he witnessed no improvement in Rydzik's tardiness, his bathroom duties or his plan book difficulties. Campbell also denied that he told Rydzik that he preferred a local building representative rather than a union. With regard to Rydzik's protest of the failure to provide english books to each student, Campbell testified that he referred the letter to the language arts department wherein they advised that books would not be a worthwhile expenditure for the current year but the parties did agree to provide books for the coming school year.
Campbell indicated however that he did not respond to the union's letter concerning this problem. He testified that he is of the opinion that he is an administrator and the department head can best determine the needs of students due to their daily contact. Campbell testified that he was never told by Dr. Forguson that the discharge of Rydzik was not a grievable matter. Campbell admits having knowledge of Rydzik's union activities and also of knowing that Rydzik and others were interested in breaking away from PCTA and forming an affiliate of FTA. Campbell testified that he was unaware of Rydzik's relationship with his peers or what they thought of him personally. Campbell testified that he did not personally observe Rydzik's plan book prior to his determination to not renew his contract. Campbell testified that he was rated by PCTA in June and that his overall rating was 3.6.
Linda Elkins, an art teacher of approximately 5 years and who is on continuing contract has known Rydzik for approximately 1 year. Elkins testified that she approached Rydzik regarding forcing a union and that he attended several meetings with officials of AFT. She testified that Rydzik was very active in the union's organizational drive. Elkins testified that she had a son who was one of Rydzik's students end he rated Rydzik as the "top teacher" of the school. She testified that she taught some of the same students as Rydzik and she heard favorable comments from several students regarding his teaching ability. She testified that she observed Rydzik's plan book and it was more thorough then many others whose plan books were approved and she was accordingly led to believe that Rydzik was about to be "axed." She also testified that it was probably true that Rydzik should not have played an active role in the union drive. She testified that since the discharge of Rydzik, most employees without continuing contracts status are afraid to participate in collective activities. On cross examination, she testified that several employees informed her that inasmuch as they were on annual contracts they would not sign the petition supportive of Rydzik. She testified that over 100 students commended Rydzik on his teaching abilities. Elkins testified that she was late and she received a note cautioning her to not be late again. She reiterated the fact that morale seemed to drop after Rydzik's separation.
Donald W. Livesey, an employee for approximately 5 years was called and examined as follows: Livesey testified that Rydzik assisted him in trying to bring an affiliate of AFT into the school. He testified that Rydzik solicited him to join the union and that Rydzik got along with most employees. He testified that Rydzik "could have had a problem with his department head, Monique Lefebre." He testified that Rydzik asked to borrow his plan book which he loaned to him. He testified that Rydzik took his plan book home and based on his observation of Rydzik's plan book, it was better than most teachers. He testified that Rydzik was one of the "better dressed teachers in the school," end the parents often expressed a desire to have him teach school there based on his good rapport with kids. He testified that Rydzik was very active in all the plans and extra curricular activities end that his plan beak was very good. He expressed the opinion that Rydzik was a "superior teacher" and does not remember Rydzik not being on bathroom duty. He testified that during early 1975, the tension mounted after the commencement of collective bargaining negotiations.
He also testified that a co-employee, a Mrs. Snell, did not sign a petition supportive of Rydzik until she was informed that she would be recommended for employment for the coming school year. He stated that it is common knowledge throughout the school that employees fear reprisals for testifying and they are expressing tenseness due to Rydzik's separation. He expressed his opinion that Rydzik was terminated due to his union activities. On cross examination he reiterated basically the same testimony that he testified to on direct.
Barbara Snell, an employee at Hudson High School for approximately 3 years was called next and examined as follows: Snell testified that she had been tardy approximately 6 times during the period from July 1, 1974 thru April 1, 1975. She testified that she arrived earlier on numerous occasions, approximately 10 minutes and she on occasions remained late. She testified that she shared bathroom duty with Rydzik and that because she knew that they were being watched, she made a special effort to avoid being remiss in her bathroom duties. She testified that she could overhear Mr. Rydzik's class lectures because their planning periods were staggered and in her opinion Mr. Rydzik was "one of the best teachers she had seen". She testified that she feared reprisals from her employer due to the fact that she is an annual contract teacher. She voiced her opinion that the atmosphere around the campus has been somewhat tense and the employees fear being critical of the principal, Mr. Campbell. She testified that she signed the petition supportive of Mr. Rydzik after she had been rehired for the current school year.
Bruce Bluebaum, a math teacher of approximately 4 years was called and testified that he knew Mr. Rydzik and that their homerooms were on opposite sides of the hall facing each other. He testified that on numerous occasions he observed Mr. Rydzik on bathroom duty and he was always in and around the bathroom during the class period changes. He testified that students liked Rydzik very much and always "flocked around him". Bluebaum testified that Rydzik worked diligently about his planbook and in his opinion, his plan book was excellent. He testified that Rydzik's planbook would always be turned down based on the dislike that existed between Mrs. Lefebre, his department head, and he. He opined that Mrs. Lefebre would search to find a way of "axing him". He testified that Rydzik was regarded as the "leader in the school". As to Rydzik's teaching abilities, he related an incident wherein he put on a mock trial and he also generally stated that Rydzik was "very innovative and a very good teacher". He gave the opinion that Rydzik was dismissed because he was "too vocal" in union activities and due to the dislike of him by his department head. On cross examination, he also opined that the teachers around the campus felt that the principal, Mr. Campbell, was led astray and made the wrong decision with regard to discharging or, that is, not rehiring Rydzik. He
testified that when a union meeting was announced, Mr. Campbell would make the announcement in a manner which tended to show that he somewhat disliked having union meetings held on the campus facility whereas employees were asked or "forced" to sit through meetings regarding sales of "pot and pans". He indicated this same procedure with regard to insurance sales. Bluebaum testified that grievances were not well accepted around Gulf High School.
Ruth J. Morris, a community school manager and employed at Gulf Junior High for approximately 9 years testified that she has known Fred Rydzik for approximately 2 years. Morris is presently the school's building representative. She testified that she had dealt with the principal, Mr. Campbell, on numerous occasions and she has assisted in the development of evaluation forms. She testified that evaluations tend to lose their worth because "different standards are used" nor do principals place much reliance on evaluations but that a new teacher will tend to feel that if they are not evaluated highly, it will play some important role in whether or not they will be rehired the next year. She testified that she evaluated Mr. Rydzik's planbook and told him that it was excellent. She testified that the employees in her opinion were afraid of criticizing Mr. Campbell but in cross examination she also testified that complaints were received satisfactorily by him. Campbell, she noted, was rated very good in an evaluation conducted by PCTA.
Respondent's Defense to CA-1041
Monique Lefebre, Department Chairman, Social Science at Crawford Junior High School, has served in that capacity for approximately 5 years. She was the alleged discriminatee, Fred Rydzik's department chairman. Lafebre testified that Rydzik turned in his planbook only once or twice and that she did not talk to him about not timely turning in his planbook. She testified that initially Rydzik failed to perform his bathroom duty but that after warning him, he fulfilled his duties in that regard. This was noticed by her particularly after Rydzik received his mid-term evaluation.
Lefebre also testified that she noted certain deficiencies in Rydzik's planbook percentages and that based or the manner in which she criticized them, there was no way that he could correct the deficiencies inasmuch as the time period had passed wherein such deficiencies could have been corrected. She testified that during a faculty meeting at the early part of the school year, male instructional personnel were told to wear a tie during school hours and to refrain from walking out of the faculty lounge with coffee. She testified that she observed Rydzik not wearing a tie for a period of approximately 15 days after this rule was announced and when she spoke to him about not wearing a tie and he failed to heed her advice, she then spoke to the principal. She testified she was aware that other teachers violated the coffee rule also although she did not personally see them. She testified that this was an unwritten rule and to the best of her recollection Rydzik was not present when the principal announced the rules regarding males wearing a tie or that they were not to walk out of the faculty lounge with coffee. She testified that the problem with regard to Rydzik not performing his bathroom patrolling occurred during the early part of the year, perhaps in late August or early September but that after he was evaluated during the early part of the year she did not notice him failing to perform his bathroom duty.
James Campbell, the principal at Gulf, indicates that the sign in sign out sheets have been in effect for quite some time at the school. Respondent's exhibit no. 9 reflects inter alia, the sign in - sign out records of Rydzik and other instructional personnel at the school. He testified that he noted on a
few occasions Rydzik would write in or drawn in a "smiling face" in the spot where he was to sign in. Campbell testified that based on his calculation Rydzik was late on approximately 51 occasions during the school year and that 3 occasions his secretary called him and he was late for as much as one hour.
Campbell was rated by PCTA and on that evaluation form he was rated 3.6 of a possible 5. (See Respondent's exhibit no. 10, received in evidence). Campbell testified that union activities played no part in his decision to not rehire Rydzik nor did he have any knowledge as to Rydzik's serving as a building representative or running for any union office. On cross examination, Campbell testified he evaluated Rydzik on or about September 22 and his final evaluation came approximately 3 weeks later. He testified that in his opinion, 3 weeks was sufficient for Rydzik to correct any deficiencies noted on his evaluation.
Campbell testified that school officially starts at 6:30 and homeroom begins approximately 6:45 a.m. He also testified that during the early part of the school year the time clock was not working and a small clock was used to apprise the employees of the correct time. A casual or cursory look at the time sheets indicates that there were a number of instructors who were late and that the correct time was not always adhered to nor was there any rigid policing of the time sheets. That is to say that instructors would often record that they would come in at say 6:30 a.m. whereas they might in fact arrive at 5:30 a.m. or on the other hand they might arrive at 6:45 a.m. and the same is true for signing out. Specifically employees may sign out at 2:00 and leave the building at say 1:30 or they may leave as late as 4:00. Campbell testified that he did net regard the fact that employees signed in when in fact they arrived earlier than that period as being violative of the "sign-in" rule and that the only objection he had to such procedure was a situation where for example a faculty member would leave the school say at 1:40 and sign out at 2:00. The records reflect that other employees were late a number of times. One case in point is Lucia Adkinson. Her time sheet reflects that she was late as much as 27 times during the past school year for a total of 665 minutes. The record also reflects that there was no method whereby one could determine whether employees were late or whether they were out on school business. Campbell's testimony regarding the sign-in, or time sheets reflect that a number of employees were late and this can be established by looking at the time sheets for Gene Lydman, Debbie Snyder, Mrs. Fisk, William Lynch, and a number of other employees, too numerous to recite herein. It was also noted that the time sheets are recorded in pencil and are easily distorted and difficult to determine if in fact an alteration has been made. Testimony was also heard by Campbell that on the PCTA evaluation form his lowest rating was in the area of "evaluating objectively after sufficient observation".
Dr. Ferguson was called and testified that based on an examination after the hearing in the subject case commenced, he was able to determine that 5 employees were promoted to managerial or non-unit positions after Mr. Weightman was nominated. He testified that one employee was put on 4th year continuing contract and served as a building representative rather than on annual contract. He testified that throughout the county, approximately 19 annual contract teachers were not rehired and that 7 teachers were put on 4th year annual contracts. He testified that an examination of the school boards records indicate that on June, 1975, there were approximately 590 employees on dues check off and that on July 28th the number was 429 employees and the 429 figure does not reflect those employees who were serving on D track. Ferguson testified that the only alleged discriminatee that he knew was Ron Eckstein and this knowledge came from observing his picture in the collective bargaining agreement which is charging parties exhibit no. 3 received in evidence. At the conclusion of case numbers 1037; 1040 and 1041, counsel for Respondent asked the hearing officer to take official notice of the official regulations of the
Department of Education and official notice of Florida Statutes 447. Thereafter Respondent rested as to cases 1037; 1040 end 1041.
General Counsel end Charging Party's rebuttal in cases 1037, 1040 and 1041
Ronald Claybeck, an unemployed male teacher who served the previous school year at Hudson Senior High testified that his prior experience included serving as a teacher in New York State's school system for approximately 12 years. Claybeck testified as to conversations preceding the election and subsequent to the election of the social studies chairmen at Ronald Eckstein's school. Claybeck testified that there were conversations regarding the number of possible ballots to be cast regarding the recommendation to the principal for the social studies chairmanship and there was some discussion as to whether two deans who were working in the social studies or other departments would be permitted to vote. Those individuals are a Mr. Carvealis and a Mr. Menticus.
He said the conversation was generally that the two deans would be permitted to vote in the election. He testified that Carvealis indicated that he would vote for Potts who in fact received the chairmanship due to a personality clash that Carvealis had with Eckstein. Clayback expressed a reluctance to testify end in fact testified under subpoena because he "feared his wife's job (an elementary teacher at Hudson Elementary School)." Claybeck testified that he and Potts are neighbors and that Potts told him that Eckstein was "a competent teacher end that he (Potts) indicated as much to the principal, Coy Pigman". He testified that Potts indicated to him that he was called in by Pigman and asked if he wanted the chairmanship. Clayback testified that Potts remained neutral as to the chairmanship because Eckstein was a good teacher although he differed with him regarding his teaching methods. Clayback testified that it was obvious that Carvealis and Eckstein did not agree with each other. Clayback testified that another factor leading to his reluctance to testify was occasioned by the fact that he was called approximately two days before his appearance and he had an unlisted phone number. He testified that he was told that if he testified, "his wife's job would be in jeopardy". On redirect examination Clayback testified that he attended the union hall and was given a subpoena by Mr. Matthew, charging parties' attorney and he also gave his phone number to Larry Smith, union president.
Fred Rydzik was also recalled and testified that he was not given a new school book by his department head, Mrs. Lefebre. Rydzik also testified he was not evaluated by Lefebre, nor did she assist or advise him of his duties nor did she tell him that he was deficient. Rydzik testified that he turned his planbook in approximately 12 times at 3 week intervals as per the schedule and that to the best of his recollection he failed to turn the planbook in only on two occasions meaning that he in fact turned the planbook in approximately 10 times. He testified that his planbook was never approved by Mrs. Lefebre. He testified that he was unaware of any dress code relating to males wearing a tie. He also denied that he failed to wear a tie on 15 occasions as testified to by Mrs. Lefebre. Mr. Rydzik also denied taking coffee to areas other than the yearbook planning and production area and that he served his bathroom duty daily. Rydzik testified that the schedule relating to patrolling the bathroom and the hall was "a loose schedule". Rydzik testified that on 3 occasions the office secretary called and informed him that he forgot to sign in and in those instances, his entry for signing in remained blank. He testified that he was late on no more than seven occasions and this was for a period of 5 minutes or so. He testified that there were approximately 3 times that he was late as much as 1 hour and that his examination of the time sheets indicate that there were approximately 12 alterations. On redirect examination, Rydzik testified that
sometime in January, 1975, Campbell told the employees that they would not sign others out and that he obeyed this mandate.
Josephine Lofland was also called to testify and testified that it was common practice to sign in at the proper time even though employees did not always arrive at the time recorded. She testified that on example of this was Art Engle, a curriculum coordinator who was late on several occasions according to a Mrs. Williams. This concluded the evidence taken in cases 1037, 1040 and 1041.
Case Number Ca-1062 and Case Number CA-1082
Larry Smith, the union president was called and testified that he assisted in the negotiations for end ratification of the current collective bargaining agreement. (Charging Parties' exhibit no. 3). Smith testified that both parties were pleased to ratify the contract and they discussed the amiable relationship that existed based on the contract. Smith testified that good faith bargaining existed through November, 1974, end that the union supported the incumbent superintendent, Ray Stewart, actively. Smith testified that he started working with the newly elected superintendent Weightman, late in November, 1974. Smith testified that in late January or early February, 1975, the negotiations and the atmosphere appeared to, in his opinion, "breakdown." He testified that he requested voluntary recognition and that he presented to Dr. Ferguson, the Respondent's designated collective bargaining agent, approximately 90 percent of the employees who had executed authorization forms.
He testified that Dr. Ferguson recommended recognition be granted on a voluntary basis. Accordingly, PCTA was certified by PERC on April 17, 1975. Negotiations for a collective bargaining agreement began on or about April 24, 1975, and a mediator was assigned approximately 60 days thereafter, after the parties had reached an impasse. Smith testified that he contacted a mediator and the mediator indicated that he would be pleased to assist the parties at arriving at a settlement but based on his experience in the mediation field, it would be fruitless to do so unless he was requested jointly by both parties. Smith testified that a special master was assigned sometime in early July, 1975.
Smith testified that he received a written authorization from Mr. Weightman designating Ferguson as the school board's agent for collective bargaining. Smith testified that he was present at all the negotiations and acted as the union's chief spokesman. The proposal submitted by the union included salary and increment proposals, planning days etc. Smith testified that at a school board meeting on or about May 6, 1975, the school board, over his objection, adopted the proposed schedule as provided in the old collective bargaining agreement i.e., (Charging Parties' exhibit no. 3). Smith indicated that this objection came through oral objection and by a letter sent to Mr. Ferguson prior to May 6. Smith testified that Ferguson was not prepared to and did not present salary proposals, based on a claim that the parties or the school board did not know its true financial condition. Smith testified that at no time did the union waive its right on salaries, planning days or salary increments. He testified that increments were cut by approximately 5 percent and instructional personnel salaries were frozen at the old rate. Smith recalls making an objection after he was shown charging parties' exhibit no. 33 which was received in evidence. Smith testified that he had no indication that check off authorizations would be revoked prior to the cut off by the school board.
Charging parties' exhibit no. 33 received in evidence is a reflection of the evidence regarding dues check off. Smith testified that he advised Ferguson that the dues authorizations were continuous in nature and that article 2, section 2, page 3 of charging parties' exhibit no. 3 in fact provides for continuous check off. Smith testified that he was afforded a short period i.e.,
from July 28th thru August 5th to sign the D Track teachers and this is evidenced by charging parties' exhibit no. 34 received in evidence. He testified that he expressed concern about the short period of time to Dr. Ferguson. The testimony indicated that D Track teachers were off duty during the period In question and therefore they had to be contacted either at their homes or through other means. Smith testified that he thereafter contacted PERC regarding the dues check off problem and PERC indicated its opinion which in essence is an advisory opinion indicating that in its opinion the dues check off authorizations were not in violation of Florida Statutes, 74, Chapter 100. On cross examination Smith reiterated the fact that after Mr. Weightman took office the bargaining relation ship appeared to "breakdown." Smith testified that on July 2, Dr. Ferguson advised him that if employees were not signed by the date indicated in his letter i.e., August 5, they would not be deducted.
ANALYSIS
Respondent bases the reasons for the dismissal of alleged discriminatee Disabato based on the fact that she was "insubordinate, that she was unwilling to talk with the principal, that she voiced a negative attitude toward the school end was uncooperative to new teachers as well as the fact that she was disruptive at faculty meetings." The stated reasons for the demotion of alleged discriminatee, Eckstein, from the chairmanship of the social studies department and his placement on annual contract employment status was grounded on the fact that: (a) he was not recommended by his fellow workers in his department for the chairmanship and (b) that to place him on a one year employment as an annual contract teacher would "be good for him." The principal also indicated that he had this "feeling" about Eckstein which he could not put on paper but that he thought by placing him on an annual contract it would "be good for him." He also indicated that there were a number of employee separations due to Eckstein's mannerisms. The principal, however, indicated that Eckstein possessed outstanding teaching abilities and techniques and that his mannerisms were not irrational. He testified that Eckstein was "over zealous" and that he knew of his union activities. The testimony of Kenneth Sennholtz is generally corroborative of Eckstein in major areas end to that extent it is credited. James Campbell, Rydzik's principal, indicated that Rydzik was not renewed for employment at the school because he showed no improvement in the areas that he noted that he was deficient i.e., that he was late turning in his plan hook and that he reported for duty tardy on numerous occasions.
In proving that a respondent unlawfully or discriminatorily discharged, demoted or otherwise discriminatorily acted in its employment practices toward an employee, It must first be shown that the employee engaged in some union or other concerted protected activity; that the employer had knowledge, or belief of such and that the discriminatory acts were based on such concerted activities or that the employer believed that said employee engaged in or attempted to engage in such activities.
Motive plays a major part in a number of cases of this type inasmuch as the discrimination will in most instances be subtle. Section 447, Florida Statutes, grants to public employees the rights of organization and representation and generally requires, upon appropriate request, that the public employer negotiate with the certified bargaining agent. The mechanism has also provided for the creation of PERC to assist in resolving labor-management disputes. Included also In said statute is a provision which prohibits strikes by public employees and remedies are provided for violation of the express prohibition against strikes. This being the status of the law, the undersigned
will quickly look at the employment records of the alleged discriminatees in light of Section 447, Florida Statutes. The evidence indicates and the record is replete with incidences wherein the employment records of all of the alleged discriminatees, that is, Sharon Disabato, Ronald Eckstein and Fred Rydzik are depicted. The evidence shows that Ms. Disabato enjoyed a good work record throughout her employment with the Respondent. The Evidence also shows that she was a spokesman for other employees regarding differences ever the policies of the school's administration and that she frequently voiced criticisms during school board meetings and in the presentation of grievances on behalf of other employees. Based on her presentation of grievances on behalf of other employees, it is clear that the employer knew of her activities which under the statute are protected. The same can be said as to the employment record of alleged discriminetees Ronald Eckstein and Fred Rydzik. Thus for example the principal at Eckstein's school indicated that he "possessed outstanding teaching abilities and techniques" and that if he (the principal) was a teacher, he would employ some of the same techniques as used by Eckstein. Fred Rydzik also, based on the record was an employee who engaged in numerous activities on behalf of the union end such activities were well known to his principal, Mr. Campbell.
The record also demonstrates that he engaged in numerous activities both during school hours and after school hours which were over and above his normal work duties. Campbell testified that Rydzik was terminated for inter alia, his failure to speak or listen to his department head and due to the fact that he was late in turning in his plan book. Another reason cited was the excessive number of times that he reported to work tardy and/or late. However, the evidence also shows that the personnel cutback to which Campbell alluded to was more a factor of attrition, that is approximately 6 employees were separated and only 3 were rehired. Testimony also indicates that one employee was rehired in industrial arts, although Campbell testified that Rydzik was not considered for the vacancy in industrial arts because he was not certified by the state. In this regard, evidence also shows that Rydzik had in fact taught industrial arts at another school and it is commonplace within the school system to place employees in temporary positions until such time as a vacancy occurs in the position to which the employee is qualified. Based on Rydzik's work record and the fact that he was engaged in other union or other concerted protected activities which are guaranteed to him by Florida Statutes, at a minimum, the Respondent should have considered him for such position and this is especially true since the record reveals that one employee, Ronald Claybeck, was given a one year contract to teach at one school in the Pasco County School System.
Therefore all of the alleged discriminatees work records were as good as or better than most employees and it is also common knowledge and the Respondent admits that such activities were well known throughout the school administration. Since their work records were good and since their participation in union or other protected activities were well known, the Respondent, in such circumstances owed them more consideration than it would a normal employee prior to dismissal. It is common knowledge in the labor area that an employer can discharge an employee for any reason or no reason at all, however, he cannot discharge an employee for engaging in any activities protected by rights guaranteed to such employee by statute. Thus, for example an employer is free to discharge an employee when he engages in protected activity and there is just cause and the just cause is the sole reason which prompts the dismissal. However, when part of the dismissal is remotely related to such employee's participation in union or other protected activities, the stated reasons of just cause take on an air of being a "pretext" and the entire action is subject to reversal. An employee's participation in union activities does not insulate him from discharge "for cause" however, when such employee engages in such activities, and when that activity is well known by the employer, care must be taken by the employer to be sure that he does not run
afoul of the labor laws. The labor laws favor uninhibited, robust and wide open debate in labor disputes. The basic provisions of Florida Statutes 447 are like those of the National Labor Relations Act, 29 USCA 151, et seq., and similarly afford wide latitude for union freedom of speech. Employees' use of epithets and open criticism of schools administration's policies when such policies are taken for the betterment of the employment relationship of all the employees is regarded as protected activities and such employees cannot be discharged for engaging therein. For example, the use of words like "liar, scab" and "traitor" cannot be construed as representations of fact when such is voiced during presentations of grievances or other criticisms of school policies when their use is done in a figurative sense to manifest the union's strong disagreement with the views of, for example, workers opposing unionization or to management. The use of such language is regarded as protected. cf. Greenbelt Co-operative Publishing Association v. Breslar, 90 S.Ct. 153), 398 U.S. 6. Similarly the fact that employees used abusive language and called a supervisor a liar during a grievance session did not take the proceeding outside the protection of the NLRA. Although the court stated that the employee's conduct cannot be condoned, it was not so opprobrious as to remove the protection. The very nature of a grievance proceeding cells for a frank exchange of views. Accordingly, an employer's action in disciplining employees for engaging in said conduct constitute unlawful interference under the NLRA, Section 8(e)(1) which is almost a carbon copy of 447.501(a), Florida Statutes. See for example Crown Central Petroleum Corporation v. NLRB, 1970, C.C.H. NLRB par. 11,062 U.S.C.A., 5th cir. 28124. Turning to the discharge of Rydzik, Campbell testified that he afforded employees an opportunity to correct any deficiencies however, he later testified that he did not give Rydzik a list of written deficiencies because in his opinion such was "discretionary" and even if he had given Rydzik a list of deficiencies, in view of the period in which he was rated i.e., in March, 1975, until the time that Campbell indicated that he had determined that he would not recommend Rydzik for non-renewal in April was a very short time to correct such deficiencies. The record further reflects that other employees testified that Rydzik was a good teacher; that large numbers of students commended him and parents indicated that they wanted him in the school due to his "good rapport with kids." Testimony also reveals that employees expressed fear of reprisals for engaging in statutorily guaranteed rights after the separation of alleged discriminatee Rydzik. Campbell's other reasons which, according to him, prompted his discharge of Rydzik also tend to indicate some disparity of treatment centered around the separation of Rydzik in that other employees were late. In fact one employee testified that when she was late, a note was left in her box warning her not to be late again. No such alternative, as far as the record reveals, was afforded to alleged discriminatee Rydzik. Accordingly the record shows in this regard that disparate treatment was meted out to alleged discriminatee Rydzik. The record is also replete with testimony that alleged discriminatee Rydzik, diligently prepared his plan book; that he was regarded as a leader in the school; that he was innovative and a good teacher; and that other employees who were more senior to him, after observing his plan book indicated that his plan book was one of the better plan books in the school.
See for example the testimony of employee Bluebaum and Miss Ruth J. Morris who has been an employee for approximately 9 years and at present is a community school manager. Respondent's exhibit no. 9,the sign-in sign-out sheets for the school years in question, indicates that there were numerous teachers who reported late end all that can be said from an examination of said exhibit is that a sign-in sign-out sheet was used; that a number of employees reported late and that although the employer used the sheet to record the attendance of instructors, in the case of alleged discriminatee Rydzik, it appears that some disparity of treatment was utilized. An employer may not discriminatorily enforce its work rules to rid itself of union activists.
With regard to the Respondent's request and/or demand that the PCTA obtain and submit properly executed and signed dues check-offs authorizations, the undersigned would only take official notice of 447.303 which summarily indicates that dues authorization forms are continuous in nature until such time as the employee who desires to revoke such authorization do so and when this occurs, a 30 day written notice to the employer and employee organization is required. The only area for negotiation on this matter is with regard to the amount that the employee organization must pay to the employer for the administrative cost for the collection. The statute on its face indicates that the deduction authorizations are continuous in nature despite the absence of an existing collective bargaining agreement. This appears to be the law because in the private sector, during the period in which an employer and an employee organization is in the process of negotiating a new contract, the employer is not at will to unilaterally change existing terms of employment and working conditions. Thus, he must maintain the status quo.
The Respondent requested that the undersigned take official notice of
447 and Section 236, Florida Statutes, in considering and analyzing the record in the subject case. The basis of the subject request was due to the fact that inasmuch as the Department of Education's Rules and Regulations and appropriate dictates in Section 235, Florida Statutes, indicate that a school board must give employees a written contract with a definite salary schedule within 30 days prior to commencement of the school year and that due to its somewhat unusual school term, it was not in a position to deal with the PCTA with regard to salaries inasmuch as it did not knew its true financial picture and secondly that it wanted to comply in all respects to the Department of Education's Rules and Regulations and appropriate statutes. After a close examination of Section 236, Florida Statutes, and a contrast of Section 447, Florida Statutes, both provisions could have been lawfully complied with by the Respondent. Respondent's financial agent, Mrs. Hall testified that she was aware of and made known to the appropriate officials, the bleak financial picture for the County. Therefore the Respondent could have bargained with PCTA as early as the Spring of 1975 and would not have run afoul of Section 447, Florida Statutes. The Respondent could have also requested an extension of time from the Department of Education for its budget submission date. Also, the Attorney General has recently opined that salaries negotiated subsequent to the beginning of the school year which increases the amount of compensation end which was entered into by end between the parties through collective negotiation is not violative of the Department of Education's Rules and Regulations. See A.G. opinion no.
75-224. Accordingly, the Respondent could have continued to bargain with PCTA subsequent to its budget submission date.
Pursuant to PERC rule 8H-4.15(h), the undersigned recommends 5/ that the allegations in the complaint be sustained based on the testimony, the briefs end the entire record in this case.
DONE end ENTERED this 24th day of December, 1975, In Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
ENDNOTES
1/ Unless otherwise noted, all dates are in 1975.
2/ The grievances are contained in charging party's exhibit no. 13 received in evidence over objection of the Respondents counsel.
3/ References in each case are based on the last four digits of the case number.
4/ The seeming inconsistency in his testimony rests in the fact that lateness, in his opinion, occurred if the instructor was not on campus by the time that the homeroom period commenced.
5/ In view of this recommendation, end since the record was not developed as to the award of backpay, reinstatement rights end other relevant data which would be germane prior to issuance of an order requiring Respondent to make the alleged discriminatees whole, the undersigned recommends that this issue be determined in a subsequent proceeding which should be held as expeditiously as possible after the Commission makes its final determination.
COPIES FURNISHED:
Joe A. McClain, Esquire Sidney L. Matthew, Esquire Jack L. McLean, Esquire Pat Renovitch, Esquire
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PASCO CLASSROOM TEACHERS ) ASSOCIATION, )
)
Charging Party, ) CASE NO. 75-1127; 1128;
) 1129 and 1347
and ) PERC CASE NOS. 8H-CA-754-1037;
) 1040; 1041;
SCHOOL BOARD OF PASCO COUNTY, ) 1062 and 1082
)
Respondent. )
)
SUPPLEMENTAL DECISION AND RECOMMENDED ORDER
On November 16, 1977, the First District Court of Appeal issued its decision in the subject case. 353 So.2d 108 (Fla. App., 1977) Therein, the court vacated that portion of the Public Employee Relations Commission's (PERC) order which sustained the Hearing Officer's recommendation that an unfair labor practice occurred as it affected the actions taken by the School Board toward its employees, Sharyn Disabato, Fred Rydzik and Ronald Eckstein and remanded the
matter to the Hearing Officer for an appropriate determination as to whether or not the Board would have reached the same decision as to these employees' employment relationship in the absence of their protected concerted conduct.
Mt. Healthy City School District v. Doyle 97 S.Ct. 568 (1977).
Based on my examination of the briefs and memorandums submitted by the Charging Party and the Respondent on March 10, 1978, including a reexamination of the entire record compiled herein, I conclude that the Respondent would not have failed to rehire employees Sharyn Disabato and Fred Rydzik nor withheld tenure from Ronald Eckstein and demoted him from the chairmanship of the Social Studies Department absent their protected activities for reasons set forth hereinafter. In resolving this question, the undersigned undertook an analysis of the employer's stated reasons for its actions as it related to these employees and contrasted those reasons with the entire record.
SHARYN DISABATO
According to Respondent, Sharyn Disabato created dissension among other faculty employees; her tone and mannerism toward Principal Larry Robison (Robison) was one of hostility and she gained the reputation of being overly harsh with her students. Based thereon, Robison decided not to renew her probationary contract inasmuch as he felt that he could hire as competent a teacher without the problems he encountered with Disabato. During his testimony, Robison acknowledged that he did not mention that dissension existed as a "motivating factor" in his decision to not renew Disabato's contract.
Robison also did not alert her that this was a problem of any significance and in any event he considered that the problem was resolved. The problem respecting Disabato's rudeness and mannerisms centered around her speaking up at faculty meetings. It is true and the record bears out the fact that Disabato was very vocal at faculty meetings however, as attested to by numerous witnesses, these so called outbursts came during times in which she was attempting to lend aid and assistance to her fellow teachers and for the overall improvement of working conditions for the entire teacher complement. The creditable evidence reveals that she was more cooperative than most teachers and that she did everything that Principal Robison asked her to. (Testimony of witness Jeanie Lusczc). Ms. Disabato's congeniality was further exemplified by the fact that during the 1973 to 1974 school year, she was selected by her fellow teachers as teacher of the year.
Principal Robison testified that when teachers were experiencing difficulties either in their teaching methods or any other acts which affected their employment relationship, it was his policy to allow them the opportunity to correct any problems and/or deficiencies by alerting them of such problems in either their performance evaluations or via conferences. This appears to be in compliance with Chapter 231.29, Florida Statutes, and Chapter 6B Subsections
4.04 and 4.08, Florida Administrative Code (F.A.C.). In Disabato's case, such an opportunity was not afforded her even assuming for the sake of argument that a problem existed with her methods. The undersigned considered the fact that Principal Robison testified that during the 1974 - 75 school year, he made, "mental notes" concerning his observations rather than reducing them to writing. Principal Robison's failure to comply with his own policy and county and state policies of issuing evaluations and notices respecting non renewals 1/ lend support to the earlier stated conclusion by the undersigned that the stated grounds by Respondent for non renewing Disabato's contract were based solely on her concerted protected activity. I therefore conclude that Disabato would have been retained on the faculty at Shrader Elementary School but for her protected activities. It is so concluded.
FRED RYDZIK
Fred Rydzik was evaluated as effective during the 1973- 74 school year and in February, 1975, he was evaluated as needing improvement in the areas of daily planning, timely reporting for work and performing bathroom duties as assigned. However, during his testimony, Principal James Campbell (Campbell) admitted that Rydzik was an outstanding teacher and that all of his teachers had areas in which they could improve (Tr. 170 Vol. VIII). Rydzik's Department Chairman, Moniquie Lefebure (Lefebure) testified as to the problems which Rydzik experienced with his plan book. Lefebure testified essentially that he was often late turning his plan book in and when he did so, it was almost always rejected. Other teachers in Rydzik's department testified that they reviewed Rydzik's plan book and in most instances, Rydzik's plan book was superior to theirs. Other teachers characterized his plan book as being excellent and in one instance one teacher categorically stated that Rydzik's plan book was better than his. (Testimony of Donald Livesey). It was also noted that no less than three of the eight employees within Ms. Lefebure's department experienced problems of timely turning in their plan book. The problems respecting Rydzik's alleged failure to fulfill his bathroom duties of timely reporting for work is strikingly similar to the testimony respecting his plan book problems. In this regard a fellow teacher stationed next to Rydzik's classroom (Barbara Snell) testified that he (Rydzik) performed his bathroom duties as assigned. The record also reveals a disparity in treatment as it relates to Rydzik inasmuch as the record evidence reveals that several employees were late as many as eighteen days during the school year. As best as the record reveals, all of these teachers were rehired with no disciplinary action taken against them. In fact Campbell admitted that excessive absences from duty would not prevent him from renewing teachers' contracts. (Tr. Vol. XII at P. 146). It was also noted that Campbell had no first hand knowledge of the problem to which he testified concerning Rydzik's alleged failure to fulfill his assigned bathroom duties.
Finally, it is also noted that Rydzik's peers had high praise for his teaching abilities and his active role in extra curricular activities. Some teachers who testified, rated him "excellent". In this regard, there were no deficiencies cited respecting Rydzik's classroom teaching abilities.
RONALD ECKSTEIN
Ronald Eckstein was demoted from the chairmanship of the Social Studies Department and his principal, Coy Pigman (Pigman) of Hudson High School recommended that he be retained on a fourth year annual probationary contract instead of being granted tenure under a continuing contract. The stated reasons included Pigman's assertion that at least four other teachers were forced to resign due to their inability to work with Eckstein and a steady decline in the relationship between Eckstein and other faculty members concerning Eckstein's personal teaching philosophies. Eckstein, like Rydzik and Disabato, problems began to mount when his protected activities increased. An examination of the record compiled herein forces the undersigned to conclude now as I did in my earlier recommendation that the grounds cited by the Respondent are uncreditable and not worthy of belief. Significantly and apart from Pigman's evasive testimony when asked of the specifics for his reasons for denying Eckstein tenure, he (Pigman) cited that he had a "feeling" about Eckstein and that he failed to meet the "community educational requirements". Pigman, like principals Robison and Campbell, failed to provide Eckstein with a written list of deficiencies as is required. He also admitted that he did not consider the so called problems attributable to Eckstein as being severe. This is apparently
true since even he failed to cite the "personality problem" in denying Eckstein a continuing contract.
Rose Dejong, one of the teachers who allegedly resigned due to difficulties she experienced getting along with Ronald Eckstein cited health as the reason she resigned. Thomas Kratochvil was equally evasive when asked whether he resigned due to his inability to get along with Ronald Eckstein.
Principal Pigman indicated that the demotion of Ronald Eckstein from the chairmanship of the Social Studies Department was prompted based on departmental in fighting and problems Eckstein encountered with other department members including his teaching methods and philosophies. Faced with such problems, he ordered an advisory election for the purpose of selecting a department chairman. However, in view of the procedures utilized and the pre-polling conducted by Pigman of those voters eligible to cast ballots in the election, the results thereof are at best, suspect. For these reasons, I conclude that the demotion of Eckstein from the department chairman and the denial of tenure was based solely on his union and other protected concerted activities.
Respondent makes much ado of the fact that it was necessary to reduce its staff and that there were no new openings in the area in which Fred Rydzik was certified. However, record evidence reveals that a net gain of three new teachers were hired at Gulf Junior High, one of which was hired to teach in an area that Rydzik was experienced.
The Respondent also points out that the three discriminatees herein were not the only teachers within the system whose contracts were not renewed, adding that the total approximated 19, of which 10 were and 9 were not union members.
Mindful of the fact that union membership bestows no favoritism with respect to a teacher's employment stature, it is noteworthy that Respondent failed to argue or otherwise suggest in its brief on remand that included among those teachers whose employment was terminated were teachers whose level of protected activities were equal or close to that of the subject discriminatees. For all of the above reasons, including the fact that the stated reasons advanced by Respondent as supportive of its action respecting the subject discriminatees failed to withstand close scrutiny and the disparity of treatment meted out to the discriminatees herein, I conclude that the Respondent would not have taken any disciplinary action against employees Sharyn Disabato, Fred Rydzik or Ronald Eckstein in the absence of their protected concerted activity.
Based on the foregoing findings and conclusions I hereby recommend that the Public Employees Relations Commission enter an order finding that the actions by Respondent, as set forth above and more specifically in the subject administrative complaints, constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), Florida Statutes, as alleged.
RECOMMENDED this 28th day of April, 1978, in Tallahassee, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
ENDNOTE
1/ See Chapter 6B-4.04; 4.08, Florida Administrative Code.
COPIES FURNISHED:
Sidney L. Matthew, Esquire
208 West Pensacola Street Tallahassee, Florida 32304
Joe A. McClain, Esquire Post Office Box 4
Dade City, Florida 33525
Leonard A. Carson, Chairman
Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300
Tallahassee, Florida 32301
John-Edward Alley, Esquire Daniel H. Kunkel, Esquire Post Office Box 1427 Tampa, Florida 33602
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Final Order filed. |
| Dec. 28, 1975 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 12, 1978 | Agency Final Order | |
| Dec. 28, 1975 | Recommended Order | Respondent discharged active union memebers with good work performance and retained worse non-union workers. Relations Commission hearing to find damages for union hires. |
