vs. ) CASE NO. 76-599
) PERC NO. 8H-RC-763-0026
) CASE NO. 76-600
Employer, ) PERC NO. 8H-RC-763-0027
Intervenor. )
Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, K.N. Ayers, held a public hearing in the above- styled cause on June 2, July 21 and 22, 1976, in Miami, Florida.
At the beginning of the hearing, the original petition of Miami-Dade General Employees Association, Inc., the Affidavits of Compliance for Registration of Employee Organization, and the Affidavits of Compliance of the Required Showing of Interest were admitted into evidence as Exhibits 1-6. The parties stipulated that the City of Miami as a Public Employer, as defined by Chapter 447, Florida Statutes, but neither Petitioner nor Intervenor would
stipulate that the other is an Employee Organization, as defined by Chapter 447, Florida Statutes.
At the initial hearing on June 2, 1976, Petitioner and the Public Employer objected to the intervention of local #654 AFSCME on the grounds that Intervenor was not qualified to intervene because it had not filed a financial statement for the year ending December 31, 1975. The Intervenor offered a copy of a recently-prepared financial statement, but it was not accepted by the Hearing Officer. The Intervenor represented that it was sending the financial statement to PERC that day by air courier who would deliver it that day. On the basis of this representation , the Intervenor was allowed to continue as a party subject to PERC accepting the late-filed financial statement as restoring the Intervenor to good standing retroactive to the hearing.
The position of the Intervenor as to what constitute an appropriate bargaining unit is contained in Exhibit 7 as corrected in ink at the hearing. The position of the Petitioner and the Public Employer regarding the appropriate bargaining unit was submitted as Exhibit 8.
The Petitioner and the Public Employee both agreed that professional employees had not been in a separate unit in the past and that they should be afforded the opportunity to vote to be in the same unit as other employees of the city not otherwise excludable from the appropriate bargaining unit. The Intervenor did not oppose this position; and thereafter, no evidence was submitted regarding which employees wee professional employees or how these employees could be identified for the purpose of allowing them to vote on whether or not they desired to be in the same unit as non-professional employees.
Basically, the difference between the position of the Intervenor and the other parties is that the appropriate bargaining unit should include personnel in the Sanitation Department, as well as many of the other personnel proposed for exclusion from the unit by the Public Employer.
When it became evident that the Public Employer was unprepared to present any evidence regarding the job descriptions, duties, authority, and responsibilities of those persons proposed for inclusion and exclusion from the bargaining unit, all parties joined in the request for a continuance. This was granted and the hearing was scheduled to reconvene on July 21, 1976, with all parties advised to be prepared to present evidence pertaining to the appropriate unit at the continued hearing.
When the hearing reconvened on July 21, 1976, the Public Employer presented a recognition acknowledgment dated July 20, 1976, wherein it purports to recognize the Petitioner as the exclusive bargaining agent for all permanent status employees of the City of Miami within the classification as listed on Appendix A attached thereto. Those on Appendix B attached thereto are to be excluded as managerial or confidential employees. This was admitted into evidence as Exhibit 9. Thereupon, the Petitioner submitted copies of withdrawal requests for the two petitions under consideration. These were admitted into evidence as Exhibits 10 and 11. Motions by Petitioner and Public Employer to dismiss the proceedings on the grounds that the withdrawal of the petition left no issues for resolution were denied.
The position of the Public Employer and the Petitioner at this stage of the proceedings was that the appropriate bargaining unit was those job
classifications as shown on Exhibit 9. The Intervenor maintained its position that the appropriate bargaining unit was as shown on Exhibit 7.
The Public Employer declined to produce witnesses, and the Petitioner had no witnesses to call. Thereupon, the Intervenor called the City Manager to testify and presented a copy of the subpoena that had been served upon him the previous day. The Public Employer presented a petition to revoke subpoena upon which argument was heard. The Petitioner contended that since the subpoena had been issued by PERC, the Hearing Officer was without power to rule against the petition although they appeared to take the position that the Hearing Officer could grant the petition. The parties were advised that the Hearing Officer ruled on all motions made during the course of the proceedings and that he would rule on the petition. After considerable argument was heard, the Petitioner was advised that the subpoena would be quashed only if the Petitioner produced an alternate witness who could testify regarding the job descriptions, duties and authority of those job classifications proposed for inclusion and exclusion from the bargaining unit. The Public Employer tentatively agreed to do so.
The Public Employer advised that a recognition acknowledgment of a unit of sanitation employees had been submitted to PERC and contended that the inclusion of the Sanitation Department employees in the unit contended for by the Intervenor was inappropriate and all testimony regarding these employees should be excluded. Such testimony was admitted over Petitioner's and Public Employer's objections.
On the other hand, and to support its refusal to stipulate that the Petitioner was an employee organization, as defined in Chapter 447, Florida Statutes, The Intervenor attempted to present evidence that the Petitioner was under the supervision and control of city officials of the City of Miami. Objections to the admission of evidence on this collateral issue were sustained. The Intervenor then proffered that if such testimony was admitted, the information contained in the April 8, 1976 edition of the Miami Herald, accepted as Exhibit 13, would be proved.
The Intervenor then called 16 witnesses, and a total of 45 exhibits were offered into evidence. Objections to exhibits 16 and 17 on grounds of materiality were sustained.
Testimony was presented that both Petitioner and Intervenor have represented employees of the City of Miami in negotiating labor agreements with the City and that both currently represent city employees for the purpose of dealing with the City of Miami concerning hours of employment, rate of pay, working conditions, etc.
Near the close of the proceedings on July 21, the Hearing Officer requested the parties to correlate exhibits 7 and 9 and to advise specifically on which job classifications they differed. When the hearing reopened on July 22, the Intervenor listed those job descriptions it would agree to exclude from the proposed bargaining unit on Exhibit 9 either because they were managerial or because they were confidential. Those are marked with a check mark alongside each job description. In addition to those listed in Appendix B of Exhibit 9, it would also exclude from the appropriate bargaining unit the following:
Chief Accountant
All Administrative Aides Assistant Convention Manager Superintendent of Parks
Chief Plumbing Inspector Pools Superintendent Property Unit Supervisor Chief Right-of-Way Agent Systems Analyst I Telecom Division Manager
Building and Zoning Inspection Supervisor Golf Course Superintendent
Recreation Program Coordinator
Job descriptions of the above classifications were admitted into evidence as Exhibits 18-30.
In addition to those job descriptions (Exhibit 18-30), the Intervenor submitted job descriptions for various positions in the Sanitation Department which are proposed for inclusion in the bargaining unit opted for by the Intervenor. These were admitted as Exhibits 31-45.
The employees of the Sanitation Department work different hours than most of the other city employees, generally receive a higher pay for the same job than those in other departments, and transfers into the Sanitation Department are now closed to other departments.
Those working garbage routes, as opposed to trash collectors, work four days per week on what is called a 10-hour shift. When they complete their route and clean their equipment, they go off duty. As a result, they work five to six hours per day and receive pay for 10 hours. If sick for an entire day, they are charged with eight hours sick leave. Accordingly, if sick for a week, they would be charged only 32 hours sick leave.
All city employees receive the same leave and sick leave benefits, the same health insurance benefits, and except for the police and firemen, the same retirement benefits.
When neither the City Manager nor a surrogate witness was presented by the Public Employer, the Intervenor moved for a continuance to permit the Intervenor to take judicial action to enforce the subpoena or to allow PERC to impose sanctions or to take other action. Ruling on this motion was reserved by the Hearing Officer, as were the motions for continuance submitted by the Petitioner and the Public Employer to permit PERC time to rule on the Recognition Acknowledgment and Petition Withdrawals. Inasmuch as the attempt to enter into a recognition acknowledgment with the Petitioner occurred after the Intervenor became a party to the proceedings, such conduct appears to be violative of Section 447.503, Florida Statutes, and granting the motion for continuance would serve only to aggravate the offense. Similarly, granting the Intervenor's Motion for a Continuance to permit it to take judicial action to enforce the duly-issued subpoena, which the City Manager failed to honor, would serve to further delay the right of the public employees to be represented by the bargaining agent of their choice.
If other sanctions are available to remedy the wrong perpetrated by the refusal to honor the subpoena, then the motion should be denied. Since the Hearing Officer believes that such sanctions are available, the Motions for Continuance are hereby denied.
Upon completion of the testimony and exhibits presented by the Intervenor, the Public Employer declined to present any evidence and stood upon
its request for a continuance. The Hearing Officer requested the City to provide job descriptions for all positions contested by the Intervenor on Exhibit 9, which were to be accepted as a late-filed exhibit. These are attached as Exhibits 46-83.
Since the City Manager is the Chief Executive Officer of the City, the refusal to honor the subpoena served upon him is a delict that must be attributed to the Public Employer.
During the course of the proceedings, it was readily apparent that the Public Employer made a concerted effort to force further delays in these proceedings. Despite requests, entreaties, and exhortations from the Hearing Officer, no testimony to support the bargaining unit proposed by the Public Employer and the Petitioner was produced other than that produced by the Intervenor to show some of those job classifications on Appendix B of Exhibit 9 should be included in the appropriate bargaining unit. When the Hearing Officer reserved the ruling on the request for a continuance again made immediately prior to the time the hearing was adjourned, the Public Employer was advised that if it chose not to submit evidence relative to the managerial or confidential duties of those employees it proposed for exclusion, the Hearing Officer could well decide to present the case to PERC for determination on the evidence that was presented and that since it had been given full opportunity to present evidence, its refusal to do so would be at its own peril.
While the posture of the evidence presented at the hearing certainly leaves something to be desired, the sole responsibility for the absence of this evidence can be laid to the contumacy of the Public Employer. To allow parties to willfully delay representation, or other, hearings by refusing to present evidence readily available, would subvert the administrative process.
There is sufficient evidence attached to the record from which an appropriate bargaining unit can be determined. If the unit includes employees who would have been excluded had the Public Employer produced testimony relating to their duties and responsibilities, any harm resulting therefrom would appear to be only to the Public Employer and resulting directly from its deliberate acts. If serious harm would result from failure to exclude any of these employees from the appropriate bargaining unit, the Public Employer may file a petition for classification or amendment of certification in accordance with Rule 8H-3.11, Florida Administrative Code.
In addition to the job descriptions forwarded as late-filed Exhibits 46-83, the Public Employer also forwarded an 11-page document which has been marked Exhibit 84. This purports to contain the description of the duties of those personnel that the Petitioner and the Public Employer would exclude from the appropriate bargaining unit by reason of their managerial or confidential statutes. Although this document has been marked as an exhibit, for identification, it is to be noted that it is hearsay testimony in that it was not given under oath nor subject to cross-examination. Furthermore, it has many of the attributes of a self-serving declaration. In accordance with Section 120.58(1)(a), Florida Statutes, Exhibit 84 for identification, standing alone, would not be sufficient to support a finding that these personnel are properly excluded from the bargaining unit by reason of their managerial or confidential status. Furthermore, Exhibit 84 is an ex parte communication.
Also forwarded with the job descriptions was what purports to be a copy of $62.00 of the Miami City Code relating to the unclassified and classified service. This has been marked Exhibit 85, and may be considered in
determining whether or not those unclassified positions in dispute between the Intervenor and the Public Employer should be included in the appropriate bargaining unit.
In accordance with Section 447.307(3)(a), Florida Statutes, no recommendations are made.
DONE and ENTERED this 22nd day of October, 1976, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
