STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COMMUNITY COLLEGE )

FEDERATION OF TEACHERS, )

FEA/UNITED, AFT, AFL-CIO, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1444

)

BREVARD COMMUNITY COLLEGE )

BOARD OF TRUSTEES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 15, 1976, in Cocoa, Florida.

APPEARANCES

For Respondent: Jane Rigler, Esquire

Staff Attorney for

William Powers, General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

For Petitioner: Joe D. Matheny, Esquire

Henderson, Matheny & Jones, P.A.

302 South Washington Avenue Titusville, Florida 32780

and

W. Reynolds Allen, Esquire

Hogg, Allen, Ryce & Norton, P.A.

225 Alcazar Avenue

Coral Gables, Florida 33134 STATEMENT OF THE CASE

On February 24, 1976, the Brevard Community College Federation of Teachers, FEA/United, AFT, AFL-CIO, Local no. 1847 filed an unfair labor practice charge with PERC, alleging that the Brevard Community College Board of Trustees (herein called Respondent) had committed several unfair labor practices in violation of Section 447.501, F. S.

On October 29, 1976, the Acting General Counsel of PERC issued a complaint and notice of hearing alleging in pertinent part that on or about January 27, 1976, and continuing, the Respondent, by and through its agent, Mike Merchant, discriminatorily denied the Charging Party the use of the Brevard Community

College Bulletin Board System and that on or about January 21, the Respondent discriminatorily denied the Charging Party the use of the college communications organ, the INTERCOM and that thereby the Respondent interfered with, restrained and coerced employees in the exercise of their rights guaranteed in Section 447.301(1), (2) and 447.501(1)(a) of the Public Employees Relations Act (herein called the Act).

Respondent, during the course of the hearing, denied the commission of any unfair labor practices. Based upon my observation of the witnesses and their demeanor while testifying and on the basis of all the evidence introduced and upon consideration of briefs filed by the General Counsel and by Respondent, I make the following:

FINDINGS OF FACT

The Business of Respondent

1. The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes.

   
   

   The Labor Organization Involved

   
   

2. The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act.

   
   

   The Alleged Unfair Labor Practices Background

   
   

3. Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus.

   
   

4. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom.

5. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings.

   
   

6. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system.

   
   

7. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent.

   
   

8. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was

   not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement."

   
   

9. To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were:

   
   

   1. The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours.

   2. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members.

   3. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements.

   4. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24).

   5. Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all

      members of the bargaining unit. (See Public Employer's Exhibit #26).

   6. The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc.

   7. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)).

      
      

10. Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any

    circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over he subject matter and the parties to this action.

    
    

12. The Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act.

    
    

13. The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act.

    
    

14. At all times material herein, the following named persons occupied the positions set opposite theirs name and have been, and are now, agents of the Respondent acting on its behalf, and/or managerial employees within the meaning of Section 447.203(4) of the Act.

    
    

    Pat Smith Director of Public Relations Mike Merchant Manager of the Student Center Dr. King President of the College

    Dr. Kosiba Provost of the Cocoa Campus

    
    

15. The burden of proving that the Respondent engaged in an unfair labor practice, or in conduct which would justify the issuance of a remedial order lies with the Charging Party, the objecting party, and the General Counsel. (See for example N.L.R.B. v. Burnup and Sims, 379 U.S. 21).

    
    

16. The Respondent, by denying the Charging Party the use of the Intercom and its bulletin boards did not commit an unfair labor practice in view of the record evidence which establishes that the Charging Party had access to the public mails and had other alternative means of access to communicate with and did in fact communicate with employees in which it was seeking to organize. (See for example N.L.R.B. v. United Steel Workers of America, 357 U.S. 357(1958)).

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That the unfair labor practice charge filed herein be dismissed in its entirety.

DONE AND ENTERED this 21st day of February, 1977, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

Jane Rigler, Esquire Staff Attorney for

William Powers, General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Joe D. Matheny, Esquire Henderson, Matheny & Jones, P.A.

302 mouth Washington Avenue Titusville, Florida 32780

W. Reynolds Allen, Esquire

Hogg, Allen, Ryce & Norton, P.A.

225 Alcazar Avenue

Coral Gables, Florida 33134

Docket for Case No: 76-001444

Orders for Case No: 76-001444