STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CUSTODIAL )

UNION #1221, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1590

) PERC NO. 8H-CA-762-0097 SCHOOL BOARD OF PINELLAS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on October 14, 1976, in Clearwater, Florida.

The following appearances were entered: Austin F. Reed, Tallahassee, Florida, for the Acting General Counsel of the Public Employees Relations Commission; Ed Draper, Tampa, Florida, for the Charging Party, Pinellas County Custodial Union #1221; and B. Edwin Johnson, Clearwater, Florida, for the Respondent, School Board of Pinellas County.

On or about June 9, 1976, the Pinellas County Custodial Union #1221 of the International Brotherhood of Firemen and Oilers ("Charging Party" hereinafter) filed an Unfair Labor Practice charge against the School Board of Pinellas County ("Public Employer" hereinafter) with the Public Employees Relations Commission. A copy of the charge was received in evidence as Hearing Officer's Exhibit 1. It is therein alleged as follows:

"Since on or about March 17, 1976, the employer has refused to bargain collectively with or to recognize the below-named labor organization as the duly certified bargaining agent for an appropriate unit of the employer's employees.

Because of the aforementioned unfair labor practices by the employer the below-named labor organization is and will continue to suffer injury which is substantial and irreparable, if the below named labor organization is not granted temporary relief. The below-named labor organization requests the Commission to petition the Circuit Court for appropriate injunctive relief pending

the final adjudication by the Commission with respect to the aforementioned unfair labor practice charge.

On September 15, 1976, the Acting General Counsel of the Public Employees Relations Commission filed a Complaint And Notice Of Hearing (Hearing Officer's Exhibit 2). The Complaint is based upon the same matters alleged in the charge, and expands on the allegations. The Public Employer filed an Answer And Affirmative Defenses on October 4, 1976 (Hearing Officer's Exhibit 5). The hearing was originally scheduled to be conducted on September 29, 1976. The Public Employer moved for a continuance (Hearing Officer's Exhibit 3), which was granted by Order entered September 23, 1976 (Hearing Officer's Exhibit 4). The final hearing was rescheduled by Notice dated September 30, 1976 (Hearing Officer's Exhibit 6).

At the hearing the Public Employer moved to amend its Answer so as to challenge the appropriateness of the unit as determined by the Public Employees Relations Commission, and alleging that the certification setting out the unit was inappropriate. The Motion To Amend was granted at the hearing, without any finding being made as to the legal sufficiency of the defense.

The General Counsel called the following witnesses: Edward Draper, an International representative of the Charging Party; and Paul Soper, the Public Employer's personnel supervisor for supporting services. Hearing Officer's Exhibits 1-7, General Counsel's Exhibits 1-6, and Respondent's Exhibits 1-8 were received into evidence. The General Counsel and the Public Employer have filed posthearing memoranda of law.

FINDINGS OF FACT

1. The School Board of Pinellas County is a public employer within the meaning of Florida Statutes Section 447.203(2).

   
   

2. The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10).

   
   

3. During December, 1975, the Charging Party filed a representation petition with the Public Employees Relations Commission seeking to represent a unit of employees of the Public Employer. Proceedings were conducted in accordance with the petition, and on February 2, 1976, the Public Employees Relations Commission, through its chairman, issued a Direction Of Election. A copy of the Direction was received into evidence at the hearing in this case as Respondent's Exhibit 1. The appropriate collective bargaining unit is therein described as follows:

   
   

   "Included: All eligible employees of the Pinellas County School Board employed in the ground maintenance, transportation, plant operations, warehouse and food-service departments.

   
   

   Excluded: All other non-instructional, instructional, and clerical employees; and all managerial/confidential employees of the Pinellas County School Board.

   See Attachment A."

   
   

   The election as conducted on or about March 11, 1976, and a majority of the employees in the unit described in the Direction of Election voted in favor of representation by the Charging Party for purposes of collective bargaining. The Public Employer thereafter filed objections to the conduct of the election

   (Respondent's Exhibit 4). The chairman of the Public Employees Relations Commission entered a report on objections on March 31, 1976 (Respondent's Exhibit 5). The chairman dismissed the objections on the grounds that they were not timely filed. On May 12, 1976, the Public Employees Relations Commission certified the Charging Panty as the exclusive bargaining agent for the unit of employees described in the Direction of Election and in the Erratum issued by the chairman of the Commission on February 26, 1976 (Respondent's Exhibit 3).

   
   

4. The Public Employer filed a request for review of the chairman's dismissal of the objections (Respondent's Exhibit 6). By decision issued September 7, 1976, the Commission dismissed the objections (Respondent's Exhibit 7). The Public Employer thereafter filed a Petition For Re-Hearing. Further proceedings respecting certification of the bargaining unit were not made a part of the record in this case; however, it is assumed for the purposes of this Recommended Order that the Public Employer is in the process of appealing the Commission's decisions.

   
   

5. Following the election, on April 2, 1976, the Charging Party wrote to the Public Employer requesting that negotiations be opened (General Counsel's Exhibit 1). The Public Employer responded by letter dated April 27, 1976 (General Counsel's Exhibit 2), as follows:

   
   

   "As you know, the school board, through the superintendent and my office, has taken appropriate steps to appeal certain procedures relating to the election held in the above matter. Until that procedure has been finalized before the Commission, we will not be in a position to enter into negotiations.

   
   

   It is further noted that you have not received an official notice that you are now the bargaining agent on behalf of a segment

   of the supporting services of the school board. Until such time as all the proper procedures have been taken before the Commission and a final determination has been made by the

   courts of the State of Florida, and you have been recognized by the school board as the bargaining agent on behalf of the supporting services employees, we would respectfully deny your request at this time."

   
   

   Following its certification as the collective bargaining representative, by letter dated May 17, 1976, the Charging Party again requested that negotiations be opened (General Counsel's Exhibit 3). Further requests were made by letters dated August 5, 1976, and August 26, 1976 (General Counsel's Exhibits 4, 5).

   The Public Employer has not responded either in writing or verbally to the requests to open negotiations, other than through its letter of April 27, 1976.

   
   

6. The Public Employer has refused to enter into collective bargaining negotiations with the Charging Party, and continues to refuse to enter into negotiations until a final determination is made by the courts respecting the Charging Party's certification, and until the school board has recognized the Charging Party.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Florida Statutes Section 120.57(1).

8. Florida Statutes Section 447.501 provides in pertinent part as follows: "(1) Public employers or their agents or

   representatives are prohibited from:

   * * *

   (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon by the certified bargaining unit for the public employees in the bargaining unit."

   
   

9. An unfair labor practice case is not the appropriate proceeding for a public employer to attack the appropriateness of a collective bargaining unit previously certified by the Public Employees Relations Commission. A. full and complete avenue for obtaining review of a certification by the Public Employees Relations Commission exists. Certification of a collective bargaining unit by the Commission constitutes final agency action from which an appeal may be had to the appropriate district court of appeal. The City of Panama City, Florida

   v. Public Employees Relations Commission, 333 So.2d 470 (1 DCA Fla. 1976); The School Board of Sarasota County, Florida v. Florida Public Employees Relations Commission, 333 So.2d 95 (2 DCA Fla. 1976). Nothing in the Public Employees Relations Commission Act, Florida Statutes Ch. 447, Part II, provides that a public employer may collaterally attack the appropriateness of a bargaining unit by raising the issue in an unfair labor practice action brought after the public employer has refused to bargain with the unit certified by the Commission. In construing Section 8(a)(5) of the National Labor Relations Act, a provision which substantially corresponds with Section 447.50l(1)(c), the National Labor Relations Board has held that relitigation of representation issues in an unfair labor practice case is inappropriate. In Pony Trucking, Inc., in NLRB 686 (1972), enforced, 486 F 2d 1039 (6 Cir. 1973), the Board stated:

   
   

   "It is well settled that in the absence of newly discovered or previously unavailable evidence or circumstances, Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to re-litigation issues which were or could have been litigated in a prior representation proceeding."

   
   

   In the instance case the Public Employer has not raised newly discovered evidence in support of its contention that the bargaining knit certified by the Commission is inappropriate, and has, or is presently asserting arguments in opposition to the unit in proceedings seeking review of the Commission's certification.

   
   

10. A public employer is obliged to engage in collective bargaining with the certified bargaining agent of a unit of public employees. The fact that the Public Employer is appealing a certification, contending that the unit is inappropriate, does not absolve the Public Employer of the responsibility to :5 engage in good faith collective bargaining. Florida Statutes section

    447.501(1)(c). The fact that a Public Employer has appealed the certification of a bargaining unit by the Public Employees Relations Commission does not operate to stay enforcement of the Public Employer's obligations. Panama City v.

    Florida Public Employees Relations Commission, supra. The Commission and the courts have the authority under appropriate terms to grant a stay upon application of the Public Employer. Florida Statutes Section 120.68(3), Rule 5.5, Florida Appellate Rules. On rehearing of the Panama City case, the court stated:

    
    

    (333 So.2d at 47)

    PERC's order certifying an employee organization as exclusive collective bargaining representative of employees in a designated unit is final for purposes of judicial review of that order and all prior interlocutory orders. Should PERC then refuse to stay bargaining pending a review, we have authority to grant that relief in order to make our jurisdiction affective."

    
    

11. The Public Employer by failing and refusing to enter into collective bargaining negotiations with the Charging Party has committed an unfair labor practice. The Public Employer should be required to cease and desist from refusing to engage in collective bargaining negotiations, and to forthwith recognize and deal with the Charging Party as the exclusive bargaining agent of the unit certified by the Public Employees Commission, and to enter into good faith collective bargaining negotiations with the Charging Party. It is also appropriate that the Public Employer advise the Commission in writing as to what steps it takes to comply with its obligations to engage in a collective bargaining process.

RECOMMENDATION

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

That the Public Employees Relations Commission enter an order requiring the School Board of Pinellas County to recognize the Pinellas County Custodial Union, #1221 as the exclusive bargaining agent of the unit of employees certified by the Public Employees Relations Commission; that the School Board of Pinellas County cease and desist from refusing to engage in collective bargaining negotiations with the Pinellas County Custodial Union, #1221; that the School Board of Pinellas County forthwith enter into good faith collective bargaining negotiations with the Pinellas County Custodial Union, #1221; and that the School Board of Pinellas County advise the Public Employees Relations Commission in writing of what steps it has taken to comply with the final order of the Public Employees Relations Commission between 30 and 45 days following entry of an order by the Commission.

RECOMMENDED this 16th day of December, 1976, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518

Austin Reed, Esquire

Public Employee Relations Commission Suite 300 - 2003 Apalachee Parkway

Tallahassee, Florida 32301

Edward Draper

5400 West Waters Avenue Tampa, Florida

Docket for Case No: 76-001590

Orders for Case No: 76-001590