and ) CASE NO. 75-1320
) PERC NO. 8H-RC-754-2193 SCHOOL BOARD OF MARTIN COUNTY, )
Respondent. )
The subject cause came on for hearing in Stuart, Florida, before the undersigned on September 26, 1975 1/ based on a RC Petition filed on or about July 24, by the Communication Workers of America (hereinafter the Petitioner) seeking to represent a unit designated as: All employees in the custodian and maintenance departments including head custodians, assistant head custodians, custodians, maids, groundsmen, maintenance men, laborers, utility men, painters, electricians, carpenters, plumbers, and plumbers helpers, excluding managerial and confidential employees. The total complement of employees as set forth in the petition is approximately 99.
For Petitioner: John J. Earley, Administrative Assistant 2147 First Avenue North
St. Petersburg, Florida 33713
At the outset of the hearing, the undersigned was hand delivered a "motion to continue" by counsel for the Public Employer alleging (1) that to conduct a hearing was "premature at this time" and (2) that the Public Employer is requesting a determination of substantial questions of law from the Public Employees Relations Commission including in essence whether or not the Petitioner has the right to bargain collectively whether it is properly qualified under Florida law to seek recognition; whether it has properly requested recognition, and that such prerequisites should be satisfied prior to conducting the instant hearing. Additionally, the Public Employer contends that inasmuch as the Petitioner's constitution and State laws prohibit public employees from striking and that the Petitioner asserts a right to strike in its constitution and bylaws, it does not have the right to collectively bargain on behalf of public employees in this state. In support thereof, the Public Employer cites the case of Local 532, American Federation of State, County, and Municipal Employees AFL-CIO v. The City of Ft. Lauderdale, 273 So.2d 441 (4th
D.C.A. Florida 1973). The undersigned denied the Motion to Continue inasmuch as the Public Employees Relations Commission hereinafter called PERC, has administratively determined that the Petitioner is, in fact, a properly registered employee organization and as such is properly qualified to seek and obtain certification based on compliance with its rules and regulations. The undersigned is of the opinion that he is without authority to question that administrative determination inasmuch as PERC's rules and regulations and the appropriate enabling statutes permit PERC to make that administrative determination. Furthermore, the undersigned is of the opinion that the very purpose of the representation hearing is to develop record evidence so that a determination may be made of the very issues raised by the public employer. Further, the undersigned took official notice of the Notice of Hearing which was served upon the Public Employer by PERC specifically indicating that those issues would be considered at the hearing. The undersigned also took official notice of the determination by PERC that the Petitioner had substantially complied with the Florida Statutory scheme as to all of the issues requested by the Public Employer as grounds for its continuance (see letter attached from Rod
W. Smith, Investigator for PERC dated September 16 and a copy of which was served on both the Employers's counsel and the Petitioner's administrative assistant). Accordingly, the Motion for a Continuance was denied. At the outset of the hearing the counsel for the Public Employer made a number of other preliminary Motions and the undersigned denied them for reasons hereinafter set forth. First, the Public Employer objected to the Petitioner's Administrative Assistant acting as counsel for the Petitioner inasmuch as he was not an attorney licensed to practice in this state. With regard to this motion, the Division has heretofore taken the position that a person seeking to act as counsel or agent need not be an attorney licensed to practice in the state.
(See Rule 28-5.03, D.O.A.H. Model Rules of Procedure, Rule 1.220 F.R.C.P. and Section 120.57, F.S., relative to Appearances, copy attached). 2/ The undersigned also received, over the Public Employer's objections, the formal registration file into evidence based on the fact that the receipt of such documents does not ipso facto bind the Public Employer but in fact merely serve as a guide to alert the Commission (PERC) what steps the Petitioner had undertaken to obtain certification and all of the accompanying memoranda. As to the Public Employer's objection as to whether or not the Petitioner was properly registered, the undersigned took official notice that the Public Employees Relations Commission has determined that to be an administrative matter which it has reserved to itself for determination and, in fact, such a determination had been made. (See PERC letter dated September 16, 1975, from Rod Smith, Investigator, copy attached). Counsel for the Public Employer also contended in its Motion to Continue that the Petitioner had not properly requested recognition from it and therefore a hearing on this matter was premature.
However, the record evidence shows that the Petitioner requested recognition of the Public Employer on or about June 17, and the Public Employer declined recognition on or about July 2. Based thereon this objection and ground urged in support thereof was deemed to be without merit. Counsel for the Public Employer also made an attack on whether or not the Petitioner was an employee organization based on the fact that it was not demonstrated that the public employee organization was an organization which could properly be recognized by the employer. That issue was raised and the Commission decided on September 16, that the Petitioner was, in fact, properly registered and that it met all the requirements as set forth in Florida Statutes, 447.203(10) and that PERC had accepted and registered the Petitioner as such in February. (See attached letter dated September 16, 1975).
THE UNIT POSITION
The Public Employer, through counsel, takes the position that a separate unit consisting of maintenance and custodian employees, i.e., two units would be appropriate inasmuch as the maintenance department services the county throughout, whereas the custodians serve or work at a particular location and they do not transfer or interchange with the maintenance department employees. The testimony reveals that there are approximately 80 employees in the custodian department and that there are approximately 28 employees in the maintenance department. The Petitioner, on the other hand, feels that the unit as petitioned for is an appropriate unit and that to order an election in two separate units would lead to fragmentation. Further, the Petitioner urges that inasmuch as the head custodian is charged with the responsibility of evaluating employees, their work habits and duties, etc., the head custodian can recommend dismissal and that as the evidence reveals, he would be somewhat instrumental in administering the contract in a supervisory position, and therefore the head custodian should not be included within any unit deemed appropriate by PERC.
The evidence reveals that there are approximately 10 head custodians, and that they, in the normal course of their duties, recommend the hiring, firing, scheduling of work, and assignment of overtime to employees. Mr. Milton, the County's Head Custodian, testified that all employees recommend policy, however, the input of such recommendations is minimal. Jack Smiles, the Assistant Superintendent for Maintenance Services testified that the job functions of the custodian and the maintenance personnel are unrelated and that their duty stations are entirely different; that the degree of interchange is minimal and that transfers are likewise uncommon. He also testified that all employees make recommendations regarding policy, however, such recommendations carry little, if any, weight. He testified that all employees receive the same fringes, all employees carry out their own duties and that they all receive the same fringe benefits. He testified that pay grades are based on an employee's length of service and that generally seniority is the decisive criteria for an employee's pay grade. Essentially what his testimony revealed is that an employee's seniority and ability generally determines the work assignments and his pay.
In determining whether a particular unit petitioned for is an appropriate one, the commission is vested with broad discretion. Section 447, Florida Statutes, which grants employees the right to self-organization and to representation through agents of their own choosing indicates that that representative selected for the purposes of collective bargaining shall be the "exclusive" representative. There are specific requirements in the statutory provision, however, and notably the representative must be chosen by a majority of the employees; those employees must be in a unit appropriate for collective bargaining and in compliance therewith, the commission is empowered to decide in each case whether in order to assure employees the fullest freedom in exercising the rights guaranteed by the act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof. There is nothing in the statute which requires the unit for bargaining to be the only appropriate unit or the ultimate unit, or the most appropriate unit; the act requires only that the unit be "appropriate" that is appropriate to assure to employees in each case "the fullest freedom in exercising the rights guaranteed by the act". See for example Morand Brothers Beverage Company, et al, 91 N.L.R.B. 409, ENFD 190 F. 2nd, 576 (C.A.7, 1951); Capital Bakers, Inc., 168 N.L.R.B. 904, 905. A union is, therefore, not required to seek representation in the most comprehensive grouping of employees unless "appropriate unit compatible with that requested does not exist". P. Ballantine and Sons, 141 N.L.R.B. 1103. It is also well settled that there is
more than one way in which employees of a given employer may appropriately group for purposes of collective bargaining. See, for example, General Instruments Corp. v. N.L.R.B., 319 F. 2nd, 420, 422, 423, Cert, denied 375 U.S. 966. The
presumption is that a plant wide unit is appropriate. However, a Petitioner's desires, as to unit, are always a relevant consideration. Mark's Oxygen Company of Alabama, 147 N.L.R.B., 228, 230. Also, 447, F.S., indicates that this consideration is relevant in determining unit appropriateness. Thus, where all maintenance and technical employees have similar working conditions, are under common supervision and interchange jobs frequently, a unit including only part of them is inappropriate. United State Steel Corp., 192 N.L.R.B., 58.
Obviously in this case, the evidence reveals that interchange is minimal and therefore that factor is missing herein. Also, there are many factors which enter into the ultimate unit determination and the absence of one factor does not mean that other factors relied upon do not carry decisive and/or significant weight. Because the scope of the unit is basic to and permeates the whole of the collective bargaining relationship, each determination, in order to further effective expression of the statutory purposes, must have a direct relevancy to the circumstances within which collective bargaining is to take place. For if the unit determination fails to relate to the factual situation with which the parties must deal, efficient and stable collective bargaining is undermined rather than fostered. The facts as relied upon as the statute reveals are; (a) community of interest, (b) history of collective bargaining, (c) specific unit rules including unit size, mode of payment, age, sex, race, union membership, territorial or work jurisdiction, and the desires of the employees involved.
Some of these rules can not be considered as a valid consideration in determining unit appropriateness. For example, age is not a valid consideration in the absence of a substantial difference of skills between male and female employees. Likewise, the race of employees is not a valid determination of the appropriateness of the unit. While the desires of the employees with respect to their inclusion into a bargaining unit is not controlling, it is a factor which the commission should take into consideration in reaching its ultimate decision and indeed it may be the single factor that would "tip the scales". See, for example, N.L.R.B. vs. Ideal Laundry and Dry Cleaning Company, 300 F. 2nd 712, 717 (C.A.10, 1964).
In this case as previously stated, the evidence reveals there is an infrequency of interchange among the employees for the two locations. However, the evidence reveals also that the conditions of employment and the ultimate supervision is one which is centralized and all employees are given the same fringes, all are paid in the same manner, and all are given the same employment benefits. Evidence also reveals that the job duties and working conditions of all employees are similar. Although interchange is minimal, evidence reveals that it does in fact occur and in those instances where interchange takes place, those employees work together at times in accomplishing a specific goal. Also it appears that the community of interest for all the employees petitioned for is a consideration which is operative in the appropriate bargaining unit criteria in this case and therefore is a matter which should be considered. In the private sector, the element of community of interest is consistently a vital element in determining unit appropriateness. Based on the fact that although there is no past bargaining history; there is some interchange of employees; the work contact exists among the two groups of employees; the integration of operations at times occur and this is so despite the testimony that the interchange or integration occurs only in emergencies and the fact that the skills or type of work required; the centralization of management and supervision, particularly in regard to labor relations and the fiscal and geographical location of the two plants, though situated separately are close in
that one division compliments the other as the need arises, the undersigned is of the opinion that a single unit is appropriate in this case.
Accordingly, the undersigned recommends that the Commission determine that a single unit for the custodian and maintenance employees as petitioned for be deemed the appropriate unit for ordering an election in this case. Also based on the fact that the evidence reveals that the head custodian possessed the power to hire, fire, recommend overtime, ect., that he be excluded from the unit along with the other exclusions, i.e. managerial and confidential employees as set forth in the Petitioner's petition.
DONE and ENTERED this 16th day of January, 1976.
JAMES E. BRADWELL
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
1/ All dates unless otherwise noted are in 1975.
2/ But see Employer's Exhibit #4, which is a letter dated March 21, from the then Acting General Counsel off PERC. The undersigned is of the opinion that she lacks authority to make decisions binding on this Division.
John J. Earley, Esquire 2147 First Avenue North
St. Petersburg, Florida 33713
Douglas K. Sands, Esquire Sands & Wackeen
