STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMUNICATION WORKERS OF AMERICA, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1162

) PERC NO. 8H-RC-754-2173 ST. PETERSBURG JUNIOR COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing before the undersigned on October 6, 1975, in St. Petersburg, Florida. Communication Workers of America (hereinafter called Petitioner) filed an RC Petition with the Public Employees Relations Commission (hereinafter called PERC), seeking certification as the exclusive bargaining agent in a single unit of all "Blue Collar" employees of St. Petersburg Junior College (hereinafter called Employer). Based on amendments to the RC Petition at the hearing, the Petitioner seeks to represent employees occupying the classifications of Supervisor of Custodians, Supervisor of Grounds, Director of Purchasing, Construction Crew Chief, Construction Crew Members, Mover, Receiving Clerk, Custodian, Evening Plant Manager, Custodian Crew Chief I and II, Grounds Keeper, Mail Carrier, Mail Clerk, Printer and Tradesmen I, II, III, and IV.

APPEARANCES

For Petitioner: Larry G. Turner, Attorney

Goldin, Turner, and Cates Post Office Box 1251 Gainesville, Florida 32602

For Respondent: James M. Blue, Attorney

Brown Smith, Young, Blue, Pelham, and McDonnell, P.A.

Post Office Box 1883

Suite 740, Barnett Bank Building Tallahassee, Florida 32302

At the outset of the hearing, the parties stipulated that the Petitioner is a properly registered labor organization within the meaning of Florida Statutes, Chapter 447; that the Employer is a public employer and that the Petitioner is properly registered.

The parties also stipulated that Linda Lambrecht and Mrs. Reinphler are confidential employees and therefore, should not be included in any unit found to be appropriate by PERC.

POSITION OF THE PARTIES

The Employer takes the position that the only appropriate unit would include all career service employees, excluding managerial, confidential, supervisory, and instructional personnel. The Employer further takes the position that if supervisory employees are to be represented, they should be in a separate bargaining unit from the career service employees. The Petitioner takes the position that the unit as petitioned for is a proper and appropriate unit and is therefore entitled to certification as such by PERC. 1/

The Employer is engaged in the operation of a junior college at three separate locations within a distance of approximately forty five miles. The Employer employs approximately 300 employees in three groupings i.e., career service, administrative and instructional employees. Approximately 100 employees fall within the "blue collar" classification. There is no history of collective bargaining for the employees in question. According to the Petitioner, there are approximately 90 employees in the included classifications. The evidence revealed that all career service employees are covered by a uniform set of personnel policies and fringe benefits. The Employer argues that the Petitioner failed to demonstrate that there was any conflict of interest within the "blue collar" and "white collar" employees.

Additionally, the Employer takes the position that there was no evidence of any clearly defined grouping of "blue collar" and "white collar" employees. Therefore, the Employer argues that the only appropriate unit would be an overall career employee unit excluding supervisors, managerial, confidential, and instructional employees.

The non-academic "career" employees are included on one of two employee schedules. The schedules are divided between the 37- 1/2 hour per week employees and the 40 hour per week employees.

2/ While initially pointing to the fact that the "blue collar" and "white collar" employees are receiving the same fringe and other benefits, the Employer also urges that the only difference between a grade 3 mover and a grade 3 custodian or groundskeeper lies in the number of hours that they work i.e., 37-1/2 hours per week as opposed to a 40 hour week. The Employer also makes the claim that all employees go through the same procedure to become reclassified and to substantiate such, references are made to the "request for non-academic position classification." 3/ To further substantiate the claim that a unit consisting of all career service employees is the only appropriate unit, the Employer points to the fact that the employees both within and without the unit classifications requested by the Petitioner do a substantial amount of clerical work such as maintaining work orders, schedules and work etc. The Employer also points to the considerable interchange of duties by employees such as the Director of Physical Planning and the science technician regarding the removal and installation of equipment in the general purpose laboratory. Additionally, the Employer cites the similarity of work performed by the receiving clerk and secretaries as well as other employees in the mail room. This includes mail carriers, movers and receiving clerks who all fall under the Director of Purchasing. Regarding job interchange, the Employer cites the fact that mail carriers cover for secretaries when they take their lunch break.

THE SUPERVISORY ISSUE

The Employer contends that the following individuals are supervisors and should therefore be excluded from any bargaining unit that included non-supervisory employees: Supervisor of Custodians (Clearwater); Evening Plant Manager (St. Petersburg); Supervisor of Grounds; Central Services Supervisor; Campus Bookstore Supervisor (Clearwater); Camp Bookstore Manager (St.

Petersburg); Business Office Supervisor; Payroll Supervisor; and Campus Operations Supervisor. There was testimony on several of the above classifications and on others the Petitioner stipulated that if testimony was given, it would be substantially the same if record evidence was taken on all classifications.

The evidence reveals that those employees occupying the above named classifications supervise from 3 to 20 employees. They have authority to and have fired probationary employees; have effectively recommended that an employee be accorded permanent

status; have extended probationary periods an additional 90 days; have assigned vacation time; have granted time off during emergencies; assigned work to crew chiefs; have authority to reject applicants for employment and have exercised said authority in the past. Based on this broad sphere of authority of the supervisory employees, it is suggested that the above named employees not be included within a group of non-supervisory employees due to the conflict of interest that is likely to occur with other bargaining unit employees. See PERC Rule 8H-3.31 4/

ANALYSIS

The record reveals that the so called "blue collar" and "white collar" employees are on a uniform salary and fringe benefit schedule. There is also frequent job interchange and job contact among the two groups. Employees of both groupings follow the same procedure to become reclassified. Based on the above, it is suggested, that the appropriate unit should include all career service employees since their community of interest is similar throughout the career service classifications and there was no record evidence to justify a single grouping of "blue collar" employees. Further, in view of the broad sphere of authority exercised by supervisors that the Petitioner seeks to represent, it is suggested that they not be included within a unit of non- supervisory employees due to the possible and clear likelihood of conflict of interests arising among the two groups. In conclusion, I therefore suggest that there should be two units defined as follows:

Unit 1: All career employees at St. Petersburg Junior College, excluding supervisory employees, managerial employees, confidential employees and instructional employees.

Unit 2: All supervisory employees employed by St.

Petersburg Junior College, excluding managerial employees, confidential employees, non-supervisory career employees and instructional employees.

DONE and ENTERED this 26th day of April, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ At the outset of the hearing, the Petitioner amended its petition to include the evening plant manager and the printer and the parties stipulated that the evening plant manager is a supervisor.

2/ See Employer's Exhibit 2 which is incorporated herein by reference.

3/ See Exhibit 4 which is incorporated herein by reference.

4/ At the close of the hearing, the Employer agreed to submit information regarding managerial employees which might also encompass employees within the above named classifications.

COPIES FURNISHED:

James M. Blue, Esquire Post Office Box 1883

Tallahassee, Florida 32302

Larry G. Turner, Esquire Post Office Box 1251 Gainesville, Florida 32602

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

=================================================================

STATE OF FLORIDA

PUBLIC EMPLOYEES RELATIONS COMMISSION

COMMUNICATIONS WORKERS OF AMERICA,

Petitioner,

and CASE NO. 8H-RC-754-2173

DOAH CASE NO. 75-1162

ST. PETERSBURG JUNIOR COLLEGE,

Respondent.

/

CHAIRMAN'S AMENDED REPORT ON OBJECTIONS

Rodney W., Smith, Gainesville, attorney for petitioner. James M. Blue, Tallahassee, attorney for Respondent.

THE COMMUNICATIONS WORKERS OF AMERICA (herein, CWA), filed a

Petition for Certification pursuant to Section 447.307(2), Fla. Stat., and Fla. Admin. Code Rule 8H-3.02.

Pursuant to an Order of the Public Employees Relations Commission dated October 27, 1976, an election was conducted on November 19, 1976, among the employees in the following described unit:

INCLUDED: Employees in the Positions of Mover, Receiving Clerk, Custodian, Grounds- keeper, Custodian Crew Chief I, Mail Carrier, Custodian Crew Chief II, Tradesmen I, II, III, and IV, Con- struction Crew Chief and Construction Crew Members, Mail Clerk and Printer.

EXCLUDED: Supervisors of the included employees not specifically included and all other employees of St. Petersburg Junior College.

The verified tally of ballots issued after the election shows that of approximately 90 eligible Voters, 81 cast ballots, of which 36 were cast for CWA and 45 were against representation. No ballots were void and 6 ballots were challenged, the numbers thus being to affect the results of the election.

On November 30, 1976, CWA timely filed Objections to conduct affecting the results of the election.

Pursuant to Rule 8H-3.28, Fla. Admin. Code, and after a thorough investigation of the Objections the following findings and conclusions are made.

OBJECTIONS

The Objections are as follows:

1. In July, 1976, PERC, after an unexplainable delay, ordered an election among the blue-collar employees of the above-named Public Employer, On October 27, 1976, after another three-month delay, the Commission directed an election among said employees which was held November 19, 1976, at the four campus sites comprising St. Petersburg Junior College. The election results were verified and indicated that CWA lost the Representation Election by a very narrow margin. CWA hereby objects to the

   Employer's conduct during the Representation Campaign by alleging the Employer to have the following improper practices:

   
   

   1. The Employer by and through both its managerial and supervisory Personnel during the last few days of the Election Campaign, did induce, intimidate and coerce individuals

      in the bargaining unit to vote for the Employer by handing to known Union supporters the day. before the election "job descriptions" for

      them to "look over". The Personnel Director of the Junior College who handed the Union

      supporters these job descriptions had just two hours earlier had (sic) been confronting unit members asking for a no union vote on November 19.

      
      

   2. The Employer, by and through its managerial and supervisory employees did confront one unit individual and threaten and intimidate that individual with loss of basketball game overtime on the basis of that individual's supporting

      the Union in the Representation Election.

      
      

   3. The Employer did, by and through the acts of its supervisory and/or managerial employees induce another unit employee the day of the Representation Election to vote against the Union by indicating that the individual could only have time off to visit an acquaintance

      in the hospital if that person would "take care of us when you vote today"

      
      

   4. The Public Employer did, by and through the acts of its supervisory and/or managerial employee, induce another individual to vote against the Union by indicating to that in- dividual that if he voted against the Union and helped out management, that individual would be awarded the next job opening in the maintenance department.

      
      

   5. The Employer did, by and through the acts of its managerial and/or supervisory employees falsely represent and state to unit employees that once the CWA had won an election the

      employees would never be able to "get them out", When employees tried to argue that the CWA had them that any election was only binding for

      one year, the managerial employee replied

      that once they get in you will never be able to get them out. This conversation took place November 18, 1976.

      
      

   6. The employer did on numerous occasions during the critical period prior to the election, up to and including the day of the election represent in its literature that a vote for the CWA would result in strikes and

      a lack of steady work clearly implying that CWA would neither bargain in good faith nor comply with the laws of Florida. Such statements by the employer were absolutely groundless in that CWA, by and through its PERC Registration, has agreed to comply with all laws in the State of Florida. Addi- tionally, the Employer's literature implied that a vote for CWA would lead to "constant uncertainty" in employment, thereby indi- cating that employees' jobs were insecure if the Union prevailed in the election.

      
      

   7. In addition to the literature mentioned above, the employer circulated campaign literature which indicated that a vote for management assured "no time loss through strikes" in spite of the fact that Public Employees cannot strike in the State of Florida and CWA has sworn to comply with the laws of this State.

      
      

   8. The Public Employer did, on the day of the election, include literature in an envelope ac- companying each paycheck which clearly implied that the Union dues of the employees would be

      $10.39 per month or $124.68 per year plus assessment, which is clearly a distortion of CWA's current dues structure. In fact, the dues paid by Union members voluntarily in the Local closest to St. Petersburg Junior College is $6.00 per month and in fact a maximum dues paid by any Public sector CWA local statewide is $7.00 per month. This election day literature circulated by the Employer amounts to a 40 percent distortion in the amount of dues charged by the Communications Workers.

      
      

   9. In addition to the above misrepresentation the literature circulated the day of the election by the Employer indicated that all City Workers in the City of St. Petersburg paid Union dues. The implication of the literature was that if the Union won an election, all employees would have to pay Union dues which is clearly inconsistent with

      F.S. 447.203. Because of the timing of the circulation of this literature the CWA representative did not have an opportunity to clarify any misrepresentations contained therein.

      
      

   10. The Public Employer, by and through the acts of its supervisory and/or managerial employees did tear down and destroy election literature posted by CWA in direct contra- vention of its agreement to allow said literature to be posted. These improper acts by the Employer took place during the week immediately preceding the election and made it impossible for CWA to repost some of the destroyed literature.

   
   

2. In addition to the above-specified improper campaign tactics of the Employer, the Employer did, during the pendency of the representation election commit the following improper practices in an effort to deteriorate the majority status of the Union.

1. In the Spring of 1976 the Employer implement a new grievance procedure. Prior to this time the Employer had not had an employee grievance procedure and this had been a major organizing issue used by the CWA. Immediately prior to the election the Employer circulated literature stating that the Union could not give a grievance procedure to the employees because the Employer had already done so. This action by the Employer constituted a rendering of new benefits during the pendency of a representation case in an effort to "buy employees" votes.

   
   

2. In September, 1976, the CWA charged the Employer with an unfair labor practice on the basis of the Employer's denying equal access to college facilities to the CWA representative MARCIA WARDEN. The Commission in October, 1976, issued a letter of probable cause indicating that the Employer's action was an unfair labor practice in violation of

   F.S 447.501(a). In addition, during the entire time of the representation campaign the CWA representative was constantly surveilled when trying to individually contact unit employees and explain the position of CWA, notwithstanding the fact that these contacts were attempted during the employees' non-working time.

   
   

3. In the Spring of 1976, the Employer announced for the first time the implementation of a reclassification plan which increased by 30 percent to 40 percent the earning potential of employees in the bargaining unit. This plan was implemented October 1, 1976, and resulted in immediate new benefits to some employees in the bargaining unit as well as a new increase in earning potential to the remaining employees. Once again, this was an effort by the Employer to "buy votes in a representation election.

   
   

4. In Spring of 1976 the Employer announced a new 6 percent wage increase to employees in the bargaining unit without in any way, or at any time, indicating that this wage increase was related to any earlier decisions. This action constituted the granting of new benefits during the critical period prior to a representation election in an effort to "buy" employee votes.

   
   

5. In March, 1975, immediately after the filing of the representation petition by the CWA the Employer announced that it would take "emergency measures" to seek a wage increase for employees in the bargaining unit. This was after the Employer had indicated to the employees that there would be no wage increase for the 1975/1976 fiscal year. This action was totally separate from the 1976 6 percent wage increase given to employees in the bargaining unit. The totality of the Employer's conduct during the representation campaign resulted in the employees being granted during the

representation campaign an increase of nearly 30 percent in actual earning, a new

grievance procedure, a new job classification and an increase of 30 percent to 40 percent in earning potential in grade. Such conduct cannot be countenance by the Commission since it is a clear effort to interfere with the employees free choice in a representation election.

OBJECTION NO. 3A

In support of Objection No. 3A, CWA asserts that on November 18, 1976, the day before the election, Carl Alan Fraze, Respondent's Employees Relations Officer, handed to known union adherents job descriptions to "look over". The CWA contends that since Fraze, just a few hours before, had asked unit members for a "no union" vote, these actions. constituted intimidation and coercion.

According to a sworn affidavit provided by CWA, the day before the election Fraze handed William J. Goatz, an air conditioning maintenance man, a position description, telling him to look it over and let Fraze know if any duties described should be removed or others added. Fraze added that he was busy and would get back to Goatz in January or February, 1977. Goatz then left and nothing more was said. The CWA affiant further testified that Fraze in no way acted threatening.

Fraze admits in his sworn affidavit that beginning in November 1976, he started handing out finalized position descriptions to all career service personnel. He states, however, that because of the time requirements of his pro-management campaign efforts, which he freely admits, he suspended such distribution two days before the election. Fraze further denies that he told Goatz to "look over" the description with the exception of the day of the incident, and whether Goatz was told at that time to review the position description, the affidavits of both Goatz and Fraze are in agreement.

There is no demonstration by CWA as to how such a statement interfered with the election process or its results. It must be presumed that in a Commission conducted election the ballots cast under the safeguards of the Commission represent the true wishes of the employees. The burden is on the objecting party to show that certain conduct was so pervasive as to affect the fairness of the election. See Teamsters Local 991, 1 FPER 34 (1975) PERC Case

No. 8H-RC-752-0001 (Order No. 75E-484) (October 2, 1975);

Southwestern Portland Cement Co. v NLRB, 407 F. 2d 131 (5th Cir. 1969). In the present case there is insufficient evidence to prove that the Respondent did "induce, intimidate and coerce individuals in the bargaining unit to vote for the Employer. . ." Therefore, this Objection is without merit.

OBJECTION NOS. 3B, 3C, and 3D.

Objections 3B, 3C, and 3D involve similar factual allegation by CWA against managerial and/or supervisory employees of the Respondent, and therefore will be treated together.

In Objection 3B, CWA contends that the Respondent confronted a unit member and threatened him with the loss of overtime as a result of that individual's support of CWA. Unit member Barry Scott Aldrich testified by sworn affidavit that during the 1975-76 basketball season he regularly was assigned all of the overtime necessary to clean the College gymnasium after basketball games.

He testified that during the CWA campaign he was active in organizing, handing out authorization cards and campaign materials. He believed that both Delmos Arnold, his night supervisor, and Leon Cooney, Director of College Physical Plant, were aware of his union activities.

Aldrich testified that at the beginning of October, 1976, he asked for basketball overtime during the upcoming season. Arnold allegedly put him off until November 18, 1976, the night before the election. At than time, according to Aldrich's testimony, Arnold, while still evasive about the overtime, complained that he had been "so good" to Aldrich and that now Aldrich was going against me, voting for the union." Subsequently the overtime was split up among various employees.

By contrast, Arnold stated by sworn affidavit that in 1975-76 Aldrich had gotten all the basketball overtime because no one else had asked. He was evasive in saying who would get it in 1976-77 because he was unsure if this situation would continue. He testified that at about 10:30 p.m. the night before the election Aldrich again asked him about the overtime and he replied that the time would be split up since this year other employees had requested it. Arnold admits that he knew Aldrich wads active in the union but claims that the subject of the union never came up. Arnold further claimed that another unit member was also present at this meeting. This unit employee swore by affidavit that he was present at the meeting until both he and Aldrich left and that he heard neither Arnold nor Aldrich mention the union. This

employee further testified that he had asked for basketball overtime this year and was informed he would receive one day of basketball overtime.

Objection 3C alleges that the Respondent, did, by the acts of its supervisory and/or managerial employees, attempt to induce a unit member to vote against CWA by saying that the unit member could only have time off to visit an acquaintance in the hospital if "[you] take care of us when you vote today."

Investigation reveals that an employee states he overheard Jacques Mickenzi, Assistant Director of the Physical Plant on the Respondent's Clearwater campus, speak to James (Buc) Brown at approximately 1:30 - 1:45 p.m. on November 19, 1976. Mickenzi allegedly asked Brown how it was going. Brown replied he needed the day off because of family problems. Mickenzi then replied "take care of me" at the polls and I'll get you paid today.

Mickenzi, by contrast, states that, while he told many employees to "take care of us at the polls," he does not specifically remember saying this to Brown. In any case, while Mickenzi admits granting Brown time off to take his wife to the hospital, he states he never tied the granting of this request to the vote taking place.

Brown states that while he was given time off by Mickenzi, nothing about the union was discussed and he in fact had already voted.

Objection 3D states that the Respondent did, by the acts of its managerial and/or supervisory personnel, induce a unit member to vote against CWA by promising that unit member a promotion.

Investigation reveals that Jacques Mickenzi, Assistant Director of the Clearwater Physical Plant, took an active. role in the CWA representation election. That role consisted of talking individually with employees about benefits they enjoyed with the College. Mickenzi spoke to 33 or 39 employees.

Regarding Objection 3D, Mickenzi admitted that he spoke to a Charles Cowart. Cowart, although a daytime custodian, had shown an interest in air conditioning maintenance and had voluntarily worked part-time in this area for training and experience.

Mickenzi testified that he pointed out that under a union contract Cowart might not be allowed to work out of classification without pay. Mickenzi denies, however, promising advancement or promotion to any employee.

Cowart, by contrast, swore by affidavit that Mickenzi told him "we've done you favors" but "if the union comes in we have no choice but to put you back doing custodial work." Mickenzi is further alleged to have said "I'd like you to help me out . . . the first possible job opening in maintenance, I'll give you a shot at it."

Objections 3B, 3C, and 3D all contain factual questions which can only be resolved after the credibility of the various witnesses has been evaluated. Therefore, a hearing will be conducted wherein the underlying facts can be determined.

OBJECTION 3E

In support of Objection No. 3E it is alleged that the Respondent through its managerial and/or supervisory employees did falsely represent to unit members that if CWA won the employees would never be able to "get them out".

A CWA witness testified by means of sworn affidavit that Carl

1. Kuttler, College Dean of Administration, spoke to him individually in the grounds office on November 18, 1976, the day before the election. The affiant alleges that Kuttler said "once you got them in you could never get them out."

   
   

   In rebuttal, Kuttler states in his sworn affidavit that while he took an active management role in the campaign, he never said unions could "never" be decertified, but only that decertification was statistically rare.

   
   

   However, CWA's contentions, regarding the degree of misrepresentation contained in the statement, even if true, are not persuasive The National Labor Relations Board has held that an election should only be set aside because of misrepresentation when there has been a substantial departure, from the truth at a time which prevents the other party from making an effective reply. Hollywood Ceramics, 140 NLRB 221, 51 LRRM 1600, at 1601-2 (1062).. The test has been adopted by the Public Employees Relations Commission. See Edison Community College Faculty Federation, Local #3513, PERC Case No. 8H-RC-764-4003- (Order No. 77E-80) (February 14, 1976).

   
   

   The test adopted by the New York Public Employees Relations Board is three pronged:

   
   

   1. a material misrepresentation (which would impact on the election); [b] made at a time

so shortly before the scheduled date of the election so as to preclude an effective reply, and [c] the employees could not rea- sonably be expected to themselves evaluate the truth or falsity of the statements.

New York State Thruway and Local Union No. 445, IBT, 2 PERB 4007 (1969).

In this case the CWA has failed to adequately demonstrate how such a statement interfered with the election process or its results. It must be presumed that in a Commission ordered election, the ballots case under the safeguards of the Commission represent the true desires of the employees. The burden is upon the objecting party to establish that objectionable conduct was so pervasive as to affect the fairness of the election. See Teamsters Local 991, 1 FPER 34 (1975), PERC Case No. 8H-RC-752-

0001 (Order No. 75E-484) (October 2, 1976); Southwestern Portland Cement Co. v. NLRB, 407 F. 2d 131 (5th Cir. 1969).

Kuttler's statement even if true, would not constitute a material misrepresentation sufficient to justify overturning the election.

OBJECTION NOS. 3F, 3G, 3H, and 3I

Objection Nos. 3F, 3G, 3H, and 3I refer to written campaign material distributed by the Respondent and therefore will be considered together. The CWA asserts that the Respondent made substantial and material misrepresentations of law and fact which affected the result; of the election. The investigation reveals that these objections refer to three pieces of campaign material.

Two documents refer to strikes. One contains the statement "If you want STEADY WORK and don't want STRIKES VOTE NO." The other document asks "Can the union get these for you?" One of eighteen answers listed is "No time lost through strikes." The CWA argues that under Florida law such statements are "absolutely groundless" and "clearly imply" that the CWA would neither bargain in good faith nor comply with the laws of Florida."

In addition, CWA objected to a campaign notice of the Respondent which compared benefits of St. Petersburg municipal employees, who are organized, to St. Petersburg Junior College employees. The notice contains the statement "Plus - the City workers: Pay union dues as follows: $10.39/month, $124.68/year, and assessments." The CWA alleges that the document falsely

implies (1) that CWA dues would be as high as $10.39/month, and

(2) that all City employees pay union dues. CWA claims that it was distributed in pay envelope's the day of the election. The sworn affidavit of Carl Allen Fraze, College Employees Relations Officer, states that it was distributed the day before the election and was not put in pay envelopes.

The passages objected to in these examples of campaign literature are nothing more than Campaign puffing which is to be expected in an election. See Hollywood Ceramics, 1410 NLRB 221,

51 LRRM 1600, 1601-2 (1962). CWA has failed to show that this pre-election conduct by the Respondent was so egregious as to warrant overturning the election. See Teamsters Local 991, PERC Case No. 8H-RC-752-0001 (Order No. 75E-484) (October 2, 1975); Southwestern Portland Cement Co. v NLRB, 407 F.2d 131 (5th Cir. 1969).

OBJECTION NO. 3J

In Objection 3J it is alleged that the Respondent by the acts of its managerial and/or supervisory employees, and in contravention of an agreement between the parties, tore down and destroyed election material posted by CWA. Investigation reveals that the Objection refers to the removal of two pieces of literature.

Marcia Warden testified by affidavit that the week before the election she posted a campaign notice on a "large board on which the time clock was mounted." It was not a bulletin board. Warden further testified that when she returned five minutes later, the notice was gone. Delmos C. Arnold, night supervisor of the physical plant, admitted that he removed it because it was not on an employee bulletin board.

The second incident occurred on the Clearwater campus.

Warden placed a campaign flyer on a bulletin board on November 16, 1976. She was informed the next day it was no longer there.

The Respondent answers that it has a strict rule that no outside campaign material of any kind is to be posted on the College grounds. Warden had complained, both in her affidavit and in the formal objections, that the Respondent had failed to follow an agreement between the parties. The text of this agreement was provided by CWA during the investigation and permitted the CWA to "post notices of union meetings at appropriate, campus locations so long as the posting was limited to bulletin boards . . ." In the first incident, the notice was not on a bulletin board; in

neither instance was the notice in reference to a union meeting. Consequently, the Respondent did not violate its agreement by their removal. The objection is overruled.

OBJECTION NO. 4A

In support of objection 4A it is alleged that in the Spring of 1976 the Respondent implemented a grievance procedure in an attempt to "buy" votes and deprive CWA of a key campaign issue.

Investigation reveals that a new grievance procedure, instituted by the President of the College, was adopted by the Board of Trustees in January, 1976. The faculty forum had initiated the study which led to its adoption in late 1974. As adopted, the new grievance procedure covered not only members of the CWA unit, but all other career service employees, all teaching personnel, and all administrative personnel. The plan consists of three steps ending in a decision by a five man committee. All committee decisions are appealable by "the grievant(s) or other party" directly to the President of the College, "in which case the decision of the President is final."

The federal courts and the NLRB "disapprove of an employer's unilateral conferring of economic benefits upon his employees, immediately prior to a representation election." See NLRB v.

Tennessee Packers, Inc., 379 F.2d 172, 180 (CA 6 1967). In the present case the Respondent adopted the grievance procedure in January 1976, 10 months prior to the election. Thus the facts of this case vary from those private sector cases where the employer instituted an economic change in working conditions immediately prior to an election.

Additionally, the NLRB has held, that an employers initiated change during this period is not necessarily violative of the NLRA, and that to hold otherwise "would be to hold that all wages band other working conditions must remain fixed from the time a petition is filed, or a campaign instituted, until the petition is ultimately disposed of." See Champion Pneumatic Machinery Co., 152 NLRB 300 (1965).

Moreover, in the present case the grievance procedure, while instituting a committee of employees peers, nevertheless left ultimate discretion in the hands of the College President. The binding grievance arbitration which a certified bargaining agent would be entitled to under Chapter 447 would represent a major departure from the Respondent's plan. Consequently, there is no evidence that the event vitiated a CWA campaign issue or had a

significant impact on the election which ultimately took place 10 months later.

OBJECTION NO. 4

Objection 4B is based in part on the Respondent's refusal to rent a classroom to CWA on or about June 30, 1976. CWA filed an unfair labor practice charge on August 2, 1976. Although General Counsel issued a probable cause letter in response to this charge, 1/ it did not affect the election so as to necessitate overturning the election. There is no evidence that CWA was precluded by the objectionable conduct from taking its campaign message to the voters, even, though the Respondent's action might have made this more difficult.

CWA further alleges in Objection 4B that during the entire period of the representation campaign the CWA representative was constantly surveilled by managerial employees when trying to contact unit members. The issue as to whether this constitutes objectionable conduct on the part of an employer has been answered in the private sector. In Food Employees, Local 347 v. NLRB, 71 LRRM 2397 (CA DC 1969), the court said "the union also contends that the Board erred in refusing to find additional violations by the employer of Section 8(a)(1) of the Act. We agree with the Board, however, that the G. C. Murphy Company acted within its rights in keeping a non-employee union organizer under observation. . . ." See also Local 455, Retail Clerks International Association, AFL-CIO, 81 LRRM 1323 (1966). The above rationale is persuasive in the presents case and consequently it is concluded that this objection is without merit.

OBJECTION 4C

Objection 4C alleges that on October 1, 1976, the Respondent implemented a new classification plan, which resulted in wage increases for some employees and in an increase in wage earning potential for the remaining employees. These allegations formed the basis for an unfair labor practice charge which was dismissed by the General Counsel following investigation on November 18, 1976. 2/

That investigation revealed: that the College has reclassified its employees on a 3-year sequential basis beginning in 1966; that no evidence indicated that the reclassification was motivated by anti-union animus; that only 4 or 5 unit members had their wages affected.

Consequently, there was not a scintilla of evidence, aside from the pendency or the representation hearing, that the change was in any way affected by the presence of CWA. Under these circumstances the implementation of the new classification plan does not justify overturning the election results.

OBJECTIONS 4D and 4E

Objection 4D and 4E both alleged that the Respondent, during the representation campaign, granted unit members substantial wage increases. These allegations formed the basis for an unfair labor practice charge which was dismissed by the General Counsel on November 18, 1976. 3/ The investigation of that case revealed that the increases granted were either planned before the Respondent became aware of CWA, or were part of an established past practice of the Respondent. An employer does not interfere with an employee's choice in a representation election by granting benefit it had already decided to give. Similarly, it has been held that an employer did not interfere with an election by granting wage increases not out of line with increases granted in past years. See Court of Common Pleas of Crawford County, 6 PPER 217 (1975).

Consequently, since the wage increases were planned before CWA began its representation campaign, and in the absence of any unlawful motive one the part of the Respondent, this objection is without merit.

On January 5, 1977, CWA attempted to amend its original objections "to allege certain post-election conduct" as a violation of the act. Conduct which occurs after the close of balloting in a representation election does not constitute grounds for an objection since such conduct could not have affected the results of the election. See Dumont Electric Co., 97 NLRB 94 (1951). No finding is made as to whether such conduct on the part of the Respondent would or would not have violated any relevant sections of the Act.

CONCLUSIONS AND RECOMMENDATIONS

Objections 3B, 3C and 3D involve factual questions which can only be resolved by an evaluation of the credibility of various witnesses. Consequently, pursuant to Fla. Admin. Code Rule 8H- 3.28, a hearing shall be held where the underlying facts can be determined prior to ruling on the merits of those objections and the remainder of CWA's Objections are dismissed.

It is so ordered.

LEONARD A. CARSON CHAIRMAN

77E-207

THIS IS TO CERTIFY that on

April 21st, 1977, this

document was filed in the office of the Public Employees Relations Commission at Tallahassee and a copy served on each party at its

last known address by certified mail. PUBLIC EMPLOYEES RELATIONS COMMISSION

BY:

Judy N. Collins Deputy Clerk

ENDNOTES

1/ Trial of the unfair labor practice charge is set for Much 14, 1977.

2/ CWA appealed this dismissal. The appeal was heard by a panel of the Commission and the dismissal was affirmed on January 24, 1977.

3/ CWA appealed this dismissal. The appeal was heard by a panel of the Commission and the dismissal was affirmed on January 25, 1977.

Docket for Case No: 75-001162

Orders for Case No: 75-001162