STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADISON CITY EMPLOYEES, )

A.F.S.C.M.E., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1764

) PERC #8H-RC-753-0216

CITY OF MADISON, )

)

Respondent. )

)

HEARING OFFICER'S REPORT

Pursuant to notice the above styled cause was heard before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the Chambers of the City Hall, 109 S.W. Rutledge Street, Madison, Florida, commencing at 11:00 a.m. on December 2, 1975, and continuing at 1:00 p.m. on February 17, 1976.

APPEARANCES

On December 2, 1975

For Petitioner: Richard Cox, Esquire

Michaels and Patterson 2007 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: David Bembry, Esquire

Davis, Browning and Hardee Post Office Box 652 Madison, Florida

On February 17, 1976

For Petitioner: Ben Patterson, Esquire

Michaels and Patterson 2007 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Edward B. Browning, Jr., Esquire

Davis, Browning and Hardee Post Office Box 652 Madison, Florida

INTRODUCTION

By a representation petition the Madison City Employees, American Federation of State, County and Municipal Employees, Local Union 2865, AFL-CIO, seeks a certificate of representation as the exclusive bargaining agent for all

full time employees of the City of Madison, Florida, except professional employees, managerial employees and confidential secretarial employees.

At the first hearing: The petition was marked Exhibit I, the affidavit of compliance for required showing of interest was marked Exhibit 2, the affidavit of compliance for registration of employee organization was marked Exhibit 3 and entered without objection.

The parties stipulated that Petitioner is an employee organization as defined in Chapter 447, Florida Statutes, and that the City of Madison is a Public Employer as defined in Chapter 447, Florida Statutes. The parties stipulated that Petitioner had made a request for recognition and the Public Employer had refused to grant the request. An opportunity was presented for certification of consent election, but was rejected. A list of names and positions prepared by the Public Employer was submitted and marked Exhibit 4. A recess was granted while Counsel for the parties studied Exhibit 4 to determine whether there could be stipulations as to those positions which could be included as am appropriate party in a unit. There was no meeting of the minds as to the validity of the job descriptions and Exhibit 5 was presented to the City, a salary survey questionnaire distributed by the Florida Association of Civil Service and Personnel Agencies in Florida, Inc., for the purpose of showing how the City arrived at the categories and salaries listed in Exhibit 4. The City testified that Exhibit 5 was used as a guideline to establish a salary precedent for the employee of the City of Madison as an updating technique and to categorize and make distinctions between job classifications. The Petitioner objected to the introduction of Exhibit 5 stating that the guideline was irrelevant unless it had been enacted by the City Commission which it had not been and was used merely as a guideline by the City Planner in presenting job descriptions and recommended salaries to the City Commission. It was admitted with objections noted in December transcript, pp. 31-35.

The hearing appeared to be at an impasse inasmuch as the Public Employer testified that the entire set of job descriptions and salary scales was under reorganization by the City Commission and that a plan would not be presented and ultimately voted on until the first part of February, 1976. Only two witnesses were called by the parties: Mr. Duke Schultz, the area coordinator, A.F.S.C.M.E. representative from Tallahassee, Florida, and Mr. Thomas Moffes, the City Manager of the City of Madison, Florida. The City moved that the cause be continued until after the reorganization was completed and the City Commission had approved the various salaries and job descriptions. The Counsel for the Petitioner objected on the ground that it had already been a long time since the presentation of the matter and that it should not be postponed.

However, no other witnesses were called and no other evidence was presented and it appeared that a record could not be made so that a determination as to an appropriate bargaining unit could be determined by the Commission without further testimony and evidence being presented. The Motion for Continuance was thereupon granted and the record for that day was closed. Shortly after the record was closed and the parties were leaving the room it was learned by the Hearing Officer that persons sitting in the audience were City employees and could have testified had they been called by either the Petitioner or the Public Employer. This Hearing Officer would have and could have called such City employees to testify had she known that these persons could have testified as to the subject of the hearing.

At the continuation of the hearing on February 17, 1976, the parties were both represented by different Counsel. Mr. Ben Patterson of the firm of Michaels and Patterson represented the Petitioner and Mr. Edward B. Browning of

the firm of Davis, Browning and Hardee represented the City of Madison at the hearing on February 17, 1976. At the previous hearing, Mr. Richard Cox of the firm of Michaels and Patterson represented the Petitioner and Mr. David Bembry of the Davis, Browning and Hardee firm represented the Public Employer. A Motion to Dismiss and/or Strike Petition for Certification was submitted by the Public Employer and marked Attachment "A". The attorney for the Petitioner moved to quash the Motion to Dismiss and/or Strike Petition for Certification filed by the City of Madison, Public Employer. He cited Chapter 28 of the Florida Administrative Code, Rule 28-5.25(3) of the Model Rules, contending that a memorandum is required and had not been submitted. Counsel for the Petitioner also cited Commission Rule 3H-3.16, indicating that this was an administrative matter to be determined only by the Public Employees Relations Commission.

(Page 11 of the transcript of February 17, 1976.) Counsel stated that there was no showing as to any sufficient reason for the Public Employer to believe that the cards were obtained improperly under Section 447.307(2), and that a proper predicate for an inquiry into the validity of the cards had not been layed.

Counsel for the Public Employer contended that the statute is very clear that when there is any ground or belief on the part of the Public Employer they have the right to come froward upon discovering these things and go into the validity of the signature cards. He stated that the information was recently learned and that he was prepared to go forward with the testimony to back up the motion and he contended that the statute gave the Public Employer the right to raise and present the issue. He stated that some members of management went out organizing union activities contrary to the statutes.

Thereupon the Hearing Officer denied the oral motion to quash in the interest of preparing a complete record, and allowed the Motion to Dismiss and/or Strike Petition for Certification to be presented allowing limited information relating to the fact whether there had been coercion, conclusions, intimidations or misrepresentation to signing the cards, but stated that it must be clearly understood that any doubts would be resolved in favor of conducting an election as opposed to not. Testimony on the Motion to Dismiss and/or Strike Petition for Certification followed.

The Public Employer called Mr. David Parsons who had been an employee of the City of Madison from April 14, 1974, until termination date on January 3, 1976. Mr. Parsons had been employed as Street Superintendent testifying he was in charge of Labor and Sanitation Department having some twenty-three (23) people under his supervision and control and that he had budgetary influence.

The witness testified that he had been nominated temporary president of the local unit and that he had signature cards but that he had at no time influenced anybody to sign then; that he did pass cards out to members in his department and other departments and that he had the cards and passed them out to those who were not at the meeting. He testified that he did not ask anyone to sign them after the meeting. He testified that he gave cards to those who worked under him who were not at the meeting, if they were interested.

Further testimony was taken as to the managerial status of Mr. Parsons' job position. He stated that at times people who worked in the Sanitation Department were discharged without his knowledge. The City Manager, Mr. Moffes, had terminated Mr. T. J. Bass about two weeks before Christmas 1975, and the City Planner did direct, at different times and for special projects, those employees of Mr. Parsons' department to perform certain duties without consulting Mr. Parsons. Relative to the control over the budget, Mr. Parsons testified that he could use his independent judgment on small items. Large purchases were defined as anything costing over $750.00. A requisition was not required for the making of purchases under $750.00.

It appears that the City Manager, Mr. Moffes, could and at times did direct some of the employees in Mr. Parsons' department to do some work, but that on the whole, Mr. Parsons was in charge of his department, directing the employees and their work and having control of budgetary items that were under $750.00 and could order such without having a requisition signed. His immediate supervisor was the City Manager.

The Public Employer called a witness, Mr. Otis Revels, who had worked approximately two and one half years for the City and had worked until he was terminated May 30, 1975. The witness testified that they had a meeting at the College Inn and that a majority of the cards were signed at that meeting and that Mr. Parsons was his immediate supervisor. The witness testified that the immediate previous City Manager, Mr. Herman Cherry, did at one time come to the City Barn and "was talking about a union". (February transcript, p. 66) He testified that Mr. Cherry talked to the employees concerning the need for a union. The witness testified that Mr. Parsons was also there and that the attorney representing the Petitioner, Mr. Patterson, was at the meeting carrying the cards in a brief case. The witness, Mr. Brown, testified that Mr. David Parsons suggested that there should be but one union to represent the employees. Mr. Revels testified that he had been fired May 30, 1975. The witness stated that he was appealing the decision of PERC on an unfair labor charge and that the appeal is pending. Mr. Revel testified that he could get no representation from the union so he went to the labor board. He said he had asked Mr. David Parsons to represent him when he was fired by Mr. Tom Moffes. (Mr. Patterson pointed out that Rule 8H-4.02 dealing with the process of charge which indicates that if the General Counsel dismisses the charge, he shall notify the charging party who shall within ten working days of the date of issuance of the General Counsel's determination appeal or the charge automatically becomes final. There was testimony from witness Revel that he had not filed the appeal within ten working days of the date of the issuance of the General Counsel's determination to dismiss.) The Motion is attached hereto and marked Attachment No. 3. The merits of the Motion are referred to PERC for final action.

Counsel for the Petitioner, Mr. Patterson, stated that the union and the employer agreed that the unit should consist of all personnel excluding managerial and confidential employees and indicated chat Petitioner was willing to rest the case. Mr. Browning, however, requested opportunity to present testimony in regard to twelve employees.

Mr. Patterson contended that the Public Employer failed to make an application for designation of managerial and confidential employees and therefore the matters involving the designation of managerial and confidential employees were not heard by PERC. Whether this was a necessary steep is left for determination by PERC. (February transcript, pp. 80-82) Counsel for the Public Employer wanted to present evidence whereby it could be determined which employee should be in the group and which should not be in, but at this point renewed his objection to the establishment of a unit on the grounds stated in the Motion heretofore entered in Attachment "A" and the evidence introduced in support of the Motion. (February transcript, pp. 82-83)

In the event that the Motion in Attachment "A" is overruled by PERC, the following testimony about job-descriptions and particular employees was taken:

There was a discussion as to twelve job descriptions that had been prepared by the City of Madison. The list was objected to by Mr. Patterson as being secondary evidence, the people in the job being the best evidence. The

objection was noted. An organization chart marked Employer's Exhibit 2 was offered and entered into evidence without objection. Exhibit 2 is a pencil sketch of the chain of command organizational structure. Job descriptions were prepared pertaining to the particular positions were presented and were approved by the City Commission. Employer's Exhibit 3 was entered into evidence entitled: (a) Special Project Supervisors; (b) Fire Chief; (c) Construction Supervisor; (d) Executive Secretary; (e) Gas Supervisor; (f) Sewage Plant Supervisor; (g) Water Supervisor; (h) Grounds Keeper; (i) Shop Superintendent- Mechanic; (j) Warehouse Supervisors; (k) Police Chief. The list was composed of

11 positions and Exhibit 3 included 11 pages.

The following stipulations were agreed upon: The parties agreed to exclude from the unit (d) the Executive Secretary to the City Manager as a confidential employee under the act. Employer's Exhibit 3(i) Shop Superintendent-Mechanic was stipulated by the Employer as not being a managerial position.

Job descriptions for positions were presented and were marked with letters

1. through (k), one job description for each page; the Petitioner's attorney objected to the designation of these nine (9) positions as managerial and confidential employees and the City Manager was therefore questioned as to each position.

   
   

   Employer's Exhibit 3(a), Special Projects Supervisor, duties in addition to that shown on exhibit 3(a) testified to in the February transcript on pages 160 to a portion of page 165.

   
   

   Employer's Exhibit 3(b), Fire Chief, duties in addition to that shown on Exhibit 3(b) testified to in the February transcript on pages 165 to a portion of page 174.

   
   

   Employer's Exhibit 3(c), Construction Supervisor, duties in addition to that shown on Exhibit 3(c) testified to in the February transcript on pages 174 to a portion of page 179.

   
   

   Employer's Exhibit 3(e), Gas Supervisor, duties in addition to that shown on Exhibit 3(d) testified to in the February transcript on pages 152 to a portion of page 160.

   
   

   Employer's Exhibit 3(f), Sewage Plant Supervisor, duties in addition to that shown on Exhibit 3(f) testified to in the February transcript on pages 124 to a portion of page 137.

   
   

   Employer's Exhibit 3(g), Water Supervisor, duties in addition to that shown on Exhibit 3(g) testified to in the February transcript on pages 110 to a portion of 1age 124.

   
   

   Employer's Exhibit 3(h), Grounds Keeper, duties in addition to that shown on Exhibit 3(h) testified to in the February transcript on pages 99 to a portion of page 110.

   
   

   Employer's Exhibit 3(j), Warehouse Supervisor, duties in addition to that shown on Exhibit 3(j) testified to in the February transcript on pages 137 to a portion of page 142.

   
   

   Employer's Exhibit 3(k), Police Chief, duties in addition to that shown on Exhibit 3(k) testified to in the February transcript on pages 145 to a portion of page 151.

   FINDINGS OF FACT

   
   

   Based on the evidence received at the hearing, the following facts are found:

   
   

   1. The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation.

      
      

   2. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected.

      
      

   3. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action.

      
      

   4. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees.

      
      

   5. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only.

      
      

   6. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination.

      
      

   7. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget.

      
      

   8. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis.

      
      

   9. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures.

      
      

   10. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and

       maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary.

       
       

   11. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager.

       
       

   12. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager.

       
       

   13. (d) Executive Secretary. Excluded as managerial employee.

       
       

   14. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager.

       
       

   15. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance.

       The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager.

       
       

   16. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager.

       
       

   17. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote,

       demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager.

       
       

   18. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee.

       
       

   19. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager.

       
       

   20. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law.

In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted.

DONE and ENTERED this 30 day of April, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway

Tallahassee, Florida 32301

David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida

Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway

Tallahassee, Florida 32301

Edward B. Browning, Jr., Esquire Davis, Browning and Hardee

Post Office Box 652 Madison, Florida

Chairman

Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 75-001764

Orders for Case No: 75-001764