STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL BROTHERHOOD OF ) FIREMAN AND OILERS, LOCAL NO. 5, )

)

Petitioner, )

)

vs. ) CASE NO. 76-668

) PERC NO. 8H-RC-762-0042

CITY OF TARPON SPRINGS, )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:30 A.M. on June 30, 1976, in the conference room of the Public Works Department at 115 South Rings, Tarpon Springs, Florida.

APPEARANCES

For Petitioner: Mr. Edward R. Draper

5400 West Waters Avenue, B-4 Tampa, Florida 33614

For Public Mr. Allen M. Blake, Esquire Employer: Marlow, Mitzel, Ortmayer and Shofi

607 South Magnolia Avenue Tampa, Florida 33606

INTRODUCTION

By a representation petition, the International Brotherhood of Firemen and Oilers, Local No. 5 (petitioner) seeks a certificate of representation as the exclusive bargaining agent for certain employees of the City of Tarpon Springs. The original RC petition described the unit claimed to be appropriate as including all City employees with the exception of management and confidential employees, employees of the Police and Fire Departments and all elected officials. At the hearing, it was the petitioner's position that an appropriate unit would exclude part-time employees who work less than thirty (30) hours per week, the Public Works Director, the City Manager, the City Manager's secretary (as a confidential employee), the librarian (as a professional employee), the Recreation Director, the Chief Engineer, the City Clerk, the Mayor, Commissioners, and employees of the Police and Fire Departments. To be included in the unit, according to petitioner, would be all other City employees, including the foremen of the various departments and employees under the Comprehensive Employment Training Act (CETA).

The City agrees with the Union's position with respect to the exclusion of the Public Works Director, the City Manager and his secretary, the librarian, the Recreation Director, the Chief Engineer, the Mayor and the Commissioners.

The City would further exclude CETA employees and the foremen of the various departments. Part-time employees who work ten (10) or more hours per week should be included in the unit, according to the City.

Thus, the dispute in this case concerns three classes of City employees -- the foremen of the various departments within the Public Works Department, part- time employees and CETA employees. Petitioner claims that foremen should be included for the reason that there is no distinctiveness in supervisory responsibility between foremen and other workers. The City claims that foremen occupy a supervisory and managerial status and that a conflict of interest would ensue were they to be included. Petitioner feels that CETA employees should be included for the reason that they are on the regular City employee salary scale and that the items of fringe benefits and pay rate progression for such employees would be appropriate for collective bargaining. The City's basis for exclusion of CETA employees is that they are temporary and irregular employees and do not share the fringe benefits or salary progression scale which regular employees have, thereby lacking a substantial community of interest with other employees. Petitioner would exclude part-time employees who work less than 30 hours per week on a regular basis because they are excluded from participation in the hospital benefit plan and other benefits are prorated. The City would include part-time employees who work ten or more hours per week on the grounds that they basically have the same job duties, working conditions and prorated fringe benefits as full-time employees and are entitled to representation.

The parties stipulated that the City of Tarpon Springs is a public employer and that the petitioner is an employee organization within the meaning of F.S. Sections 447.203(2) & (10). It was stipulated that the petitioner requested recognition as the bargaining agent from the City and that no contractual bar to holding an election nor prior bargaining history between petitioner and the City exists. It was further stipulated that petitioner is properly registered with the Public Employee Relation Commission and has filed the requisite showing of interest.

The only witness presented at the hearing was Mr. Charles H. Barnes, presently Acting City Manager, of Tarpon Springs and formerly Director of Public Works for a period of seventeen years.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships.

   
   

2. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His

   position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling.

   
   

3. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them.

   
   

4. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance.

   
   

5. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times.

   
   

6. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved.

   
   

7. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees.

   
   

8. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements.

   
   

9. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through

   September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee.

   
   

10. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases.

In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted.

Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Curtis Mack Chairman

Public Employees Relations Commission Suite 300

2003 Apalachee Parkway Tallahassee, Florida

Mr. Edward R. Draper

5400 West Waters Avenue, B-4 Tampa, Florida 33614

Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer

& Shofi

607 South Magnolia Avenue Tampa, Florida 33606

Docket for Case No: 76-000668

Orders for Case No: 76-000668