STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LABORERS INTERNATIONAL UNION OF ) NORTH AMERICA, NO. 666, )

)

Petitioner, )

)

vs. ) CASE NO. 76-710

) PERC NO. 8H-RC-763-0049

CITY OF ROCKLEDGE, )

)

Respondent/Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for bearing before the Division of Administrative Hearings' duly designated hearing officer James E. Bradwell, on August 10, 1976, in Rockledge, Florida, based on an RC petition filed on or about April 14, 1976, with the Public Employees Relations Commission (hereinafter referred to as PERC).

APPEARANCES

For Petitioner: Kenneth Cisco, Business Agent

29 Belair Arcade Cocoa, Florida 32922

and

Dennis Quebec, Vice President Public Employees Stewards Council

For Public John Hipp, City Manager Employer: Post Office Box 488

Rockledge, Florida 32955

Jim Gilliard, Assistant City Manager Post Office Box 488

Rockledge, Florida 32955

and

Mrs. Dorethia Hamilton, City Clerk City Hall

Rockledge, Florida 32955

1. The Petitioner seeks a unit designated as follows: including all employees in the service trades classification, excluding all elected or appointed officials, supervisory and management personnel who have the authority to hire, fire, or discipline employees, all employees of the police and fire departments, and the confidential employees within the meaning of the Public Employees Relations Act, also excluding all office and clerical personnel.

   
   

2. There is no history of collective bargaining for the employees that the petitioner seeks to represent. During the course of the hearing, the parties stipulated that within the meaning of Chapter 447, F.S., the City of Rockledge

   is a public employer; that the Petitioner is a labor organization and is properly registered and that in view of PERC's determination that the petition was accompanied by the requisite showing of interest, its administrative determination would be adhered to. At the outset of the hearings, the parties were able to stipulate that within the public works department, the following job descriptions should be properly included within any unit found to be appropriate by PERC. They are as follows: Heavy Equipment Operator, Light Equipment Operator, Mechanic, Laborer, Refuse Collector I, II, III, and IV and Parts/Records Clerk. The parties were also able to stipulate that within the waste water treatment department, those employees occupying the following job description/classification should also be included in any unit found to be appropriate by PERC. They are as follows: lift Station Supervisor, Plant Maintenance, Life Maintenance, Lead Operator, Plant Operator Trainee, Mechanic/Painter and Parts/Records Clerk and the Chief Mechanic. The parties also stipulated that within the waste water treatment department the superintendent and the assistant superintendent of construction should be excluded from any unit deemed to be appropriate by PERC. Additionally, the parties stipulated that the superintendent and assistant superintendent of construction in the public works departsment and the supervisor and assistant superintendent of construction, ground maintenance, should be excluded from any unit deemed to be appropriate by PERC. This leaves for decision by PERC, a determination as to whether or not the construction maintenance foreman and the truck drivers within the public works department are supervisory and should be excluded from any unit deemed to be appropriate and within the waste water treatment department, those individuals occupying the classifications of maintenance supervisor, lead operator, utility maintenance foreman, and chief mechanic. Since these were the only classifications in dispute, evidence was taken on these positions such that PERC could reach its determination as to whether or not the disputed employees should be properly included within any unit found to be appropriate.

   
   

3. The Employer declines to recognize the Petitioner as the exclusive bargaining representative of the employees petitioned for until such tine as it is certified by PERC.

   
   

4. The Employer would exclude, while the Petitioner would include the truck drivers in any unit found to be appropriate. The record evidence reveals that truck drivers are responsible for the vehicle which they drive and its operation. They have a route and are assigned two employees that "they are in charge of". The City Manager testified that truck drivers have a right to discipline and recommend firing, but not to hire or fire employees. He added further that they have absolute authority as far as discipline, "because it is their responsibility". It is worthy to note that he testified that in every instance, he makes an independent investigation and "thoroughly checks out the situation to determine whether or not an employee is disciplined". As far as the record reveals, the extent of the disciplinary action that can be taken by a truck driver is that of issuing an oral reprimand and when that fails to remedy the problem, the employee is either transported or asked to return to the "maintenance barn" and report to the superintendent of public works who according to the evidence, has the ultimate responsibility for any disciplinary action. When this occurs, Hewett, superintendent of public works, conducts an independent investigation and based on the recommendation, determines what, if any, disciplinary action is to be taken. Absent emergencies, the superintendent is the person ultimately responsible for any disciplinary action.

   
   

5. The next employee classification in dispute is Jesse Mann, construction maintenance foreman. The City Manager testified that Mann "runs a crew of

   people". He installs water and sewer lines, and storm and drain connections. He spends the bulk of his day working along with the crew of employees that he is "in charge of". Broken down to a percentage, it appears that he spends roughly 75 percent of his time preforming actual manual work whereas the remaining 25 percent is spent directing his fellow employees. There is record evidence that he has the authority to recommend disciplinary action for those employees who fail to carry out their assigned duties. Mann has the authority to recommend or issue written letters of reprimand. He cannot hire or fire employees. Evidence reveals that when an employee refused to follow his assigned duties. Mann "sends him to the barn and tells the superintendent or assistant superintendent that he no longer wants him because he [refuses to] work for him." When asked whether or not Mann has the authority to fire employees, the City Manager testified that he had the authority to do so indirectly. Essentially what he stated was that he has the authority to recommend that an employee be released if he fails to follow oral or written directives and when that situation is checked into by Hewett, Mann's recommendation weighs heavily into the determination as to whether or not the employee is ultimately terminated. This responsibility, as far as the record reveals rests with either the superintendent or the assistant superintendent of construction. He has no authority to grant time off or to suspend employees.

   
   

6. The employer takes the position that the truck drivers and the refuse drivers should be excluded while the Petitioner takes the position that they should be included in any unit found appropriate by PERC. The employer places Johnny Woodberry, foreman, in the same category as that of employee Jesse B. Mann, discussed above. According to the City Manager, Johnny Woodberry "runs a crew of about seven or eight men - varying from six to eight". He "takes care of the ground maintenance, directs them as to where they will go, what they will do, how far they will cut into properties and keeps them off of private property." He further testified that he is in charge of a big van that is used to carry most of the construction equipment. He has the same authority as Construction Maintenance Foreman, Jesse B. Mann. He testified that when an employee abuses equipment such as running it over concrete sidewalks without lifting the blades or dropping wheels off curbs, he issues an oral reprimand. When this procedure fails, the employee is directed to Hewett or Woodberry who take ultimate disciplinary action after the situation is investigated independently by either of them.

   
   

7. The record is unclear as to whether or not the Petitioner seeks to represent maintenance supervisor Richard Moffit. In explaining Moffit's duties, James Gilliard, a superintendent stipulated by the parties to be excluded from the unit, testified that Moffit spends approximately 70 percent of his time engaged in supervisory duties. His basic responsibility is supervision and to insure that other employees who are assigned to him carry out their responsibilities in the proper manner. Gilliard testified that Moffit has greater disciplinary authority than most of the other employees in the public works department. Specifically, he indicates that he issues letters of reprimand and suspends employees. He does not, however, have absolute hiring and firing authority. Moffit can exercise his authority without first checking with Gilliard if the situation requires prompt action.

   
   

8. The next classification in dispute is that of lead operator. The Employer would exclude while the Petitioner would include lead operators. Gilliard testified that the primary duties of a lead operator are greater than those of a working supervisor in that he spends more than 50 percent of his time supervising and the remainder performing manual labor. His responsibility is that of insuring that the other operators perform their tasks properly and as

   assigned. His disciplinary authority is similar to that of the maintenance supervisor. He has the added responsibility of training new operators.

   Gilliard testified that he had absolute disciplinary authority but could not hire or fire an employee. He maintains the plant operation records and determines what changes are necessary to assure that the plant operates properly. He has input into the budgetary needs of the department.

   
   

9. The Employer would exclude the utility maintenance foreman, Ivey Kiser, on the basis that he is a supervisor. Gilliard testified that he has disciplinary authority, probably not as great as the lead operator discussed above. Gilliard testified that he requests that the utility maintenance foreman check with him before he grants time off but that he had the power to issue verbal and written reprimands. Any further disciplinary action must be first checked and approved by superintendent Gilliard.

   
   

10. The Employer would exclude chief mechanic, Lawrence Beck, on the basis that he is a supervisor with the authority to hire, fire or discipline employees. The chief mechanic has two mechanic helpers as his assistants. According to Gilliard, he disciplines those employees and suspends them if, in his opinion, such disciplinary action is necessary. He has no absolute hiring or firing authority but according to Gilliard, has the authority to recommend that an employee be discharged. He spends approximately 70 percent of his time performing manual labor with the remaining 30 percent performing supervisory duties. He has the authority to grant overtime and to purchase equipment up to

    $25 without a purchase order. In addition to the two helpers, the parts records clerk also works under the guidance of the chief mechanic.

    
    

11. In accordance with PERC Rule 8H-3.23 this report is submitted to PERC without any recommendation as to appropriateness of the unit petitioned for. 1/

DONE and ENTERED this 11th day of October, 1976, in Tallahassee, Florida.

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

(904) 488-9675

ENDNOTE

1/ During the course of the hearing the Public Employer requested that it be notified when this case is to be considered before the full PERC Commission such that it can appear.

COPIES FURNISHED:

Kenneth Cisco, Business Agent

29 Belair Arcade Cocoa, Florida 32922

John Hipp. City Manager Post Office Box 488 Rockledge, Florida 32955

Dennis Quebec, Vice President Public Employees Stewards Council

29 Belair Arcade Cocoa, Florida 32922

Jim Gilliard, Assistant City Manager Post Office Box 488

Rockledge, Florida 32955

Mrs. Dorethia Hamilton, City Clerk City Hall

Rockledge, Florida 32955

Leonard Carson, Chairman

Public Employees Relations Commission 2003 Apalachee Parkway

Suite 300 Tallahassee, Florida 32301

Docket for Case No: 76-000710

Orders for Case No: 76-000710