vs. ) CASE NO. 76-1782
Respondent. )
12 and continued on February 28, 1977, in the conference Room, City Hall, Eustis, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon an unfair labor practice charge filed against the City of Eustis by the General Counsel of the Public Employees Relations Commission (PERC). This case was referred by PERC to the Division of Administrative Hearings to conduct the formal hearing pursuant to Chapter 447 and Chapter 120, Florida Statutes.
The issue is whether the City of Eustis violated Section 447.501, Florida Statutes, in discharging Gordon C. Barton.
For Petitioner: Ben R. Patterson, Esquire
For Public C. Anthony Cleveland, Esquire Employees Public Employees Relations Commission Relations 2003 Apalachee Parkway, Suite 300 Commission Tallahassee, Florida 32301
For Respondent: Norman F. Burke, Esquire
Van Den Berg, Gay & Burke, P.A.
Prior to April 21, 1976, Gordon C. Barton had been employed by the City of Eustis Police Department for approximately six (6) years. At the time of his discharge in May, 1976, he had attained the rank of sergeant. As a sergeant, he was responsible for one of three patrol shifts, each consisting of three patrolmen.
The City of Eustis Police Department consists of twenty-one (21) certified law enforcement officers and other support personnel. Authority over the department rests in the city manager under the city charter, while administration of the police department is the responsibility of the chief of police. The procedures governing, the employment relationship between and employee of the city and the city are set forth in the city charter (Respondent's Exhibit 14), the rules and regulations governing conduct, duties and procedures of Eustis Police Department (Respondent's Exhibit 13), and city ordinance 409 (Union's Exhibit 2).
In February, after some discussion with his patrol sergeants, the chief of police had adopted a modification of the department's radio procedures. In early March, 1976, after some experience with the new procedures, Sergeant Barton discussed the subject of problems arising out of the change in radio procedures with Assistant Chief Horner. Horner suggested that Barton reduce his comments to writing because the chief was out of town and that Horner would present the matter to the chief upon his return. Barton authored the memorandum to the chief on March 3, 1976. The memorandum expressed concern with the safety and efficiency of the modified radio procedures. On the date the memorandum was prepared, Barton showed the memorandum to the sergeant relieving him who expressed to Barton the fact that he concurred in Barton's observations and wished to co-sign the memorandum. Barton assented to this and eventually the signatures of thirteen (13) additional police officers were placed on the back of the memorandum.
On March 12, 1976, Sergeant Barton was called into Chief Burrows' office. Burrows asked Barton to express his views concerning the modified communications procedure. Sergeant Barton explained the problems that he and other were having with it. The chief criticized Barton for having publicized the contents of the memorandum by making it available to other officers for their signature. The chief's criticism of Barton for having allowed others to sign the memorandum caused an emotional exchange between the men.
In late March, the chief learned from other police officers in the department that Sergeant Barton had solicited fellow police officers who were on duty in behalf of the West Central Florida Police Benevolent Association.
In late March, the chief advised the city manager and city attorney that he desired to discharge Barton. He was requested by the city manager and city attorney to provide them with information on Barton's conduct upon which the termination was to be based. The chief prepared a memorandum to the city manager (General Counsel's Exhibit 3), and several meetings were held between the chief, city manager, and city attorney. Their evaluation of the grounds asserted by the chief for Barton's discharge resulted in a letter of discharge dated April 20, 1976, which was signed and delivered to Barton by the chief of police, prepared by the city attorney, and approved by the city manager. This letter was delivered to Barton on April 21, 1976, while Barton was waiting to go on duty at 3:00 P.M. When asked for some justification of his termination, Barton was told by Burrows that if Barton requested in writing the grounds for the discharge that Burrows would look it over. Notations on the memorandum prepared by the chief and submitted to the city manager and city attorney and the testimony of the city manager indicate that four of the paragraphs in the letter of discharge relate to the memorandum authored by Barton and signed by his fellow officers. Police Chief Burrows freely admitted that the preparation and submission of the memorandum signed by the police officers was one of she reasons for the termination of Barton.
The City of Eustis is a public employer as defined by Chapter 447, Florida Statutes. The Charging Party, West Central Florida Police Benevolent Association, is a labor organization as defined under the act. The Charging Party was not the "organization", however, with which the public employer interfered. The organization which was interfered with was the group which signed the memorandum. It was not the group which was interfered with which brought the unfair labor practice charge.
CONCLUSIONS OF LAW
The General Counsel has charged that the public employer has violated Section 447.501(1)(a), Florida Statutes, by restraining and interfering with the rights of public employees guaranteed in Sections 447.03 and 447.301(1) and (2), Florida Statutes, and Section 447.501(1)(b) by encouraging or discouraging membership in an employee organization by discriminating in regard to hirings, tenure, or other conditions of an employment. Specifically the General Counsel alleged that the public employer had interfered with the employee's right to join, assist, support or favor an employee organization or engaged in concerted protected activity for the purpose of collective bargaining or other mutual aid or protection.
The provisions of Section 447.501(1)(a), Florida Statutes, make it a violation of the statute to interfere with the rights of employed guaranteed to them under the act (Chapter 74-100, Laws of Florida). Section 1 of Chapter 74- 100, supra, amends Section 447.03 by the addition of the language emphasized below:
"Employees rights of self-organization.-- Employees shall have the right to self- organization, to form, join, or assist labor unions or labor organizations or to refrain trom such activity, to bargain collectively through representatives of their own choosing, and to engage in con- centrated activities, for the purpose of collective bargaining or other mutual aid or protection." (Emphasized language added by amendment)
Section 447.301 was newly enacted as a part of the Public Employees Relations Act. This section is entitled "Public Employee's rights; organization and representation," and provides in pertinent part as follows:
"(1) Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or partici- pating in any employee organization of their own choosing.
(2) Public employees shall have the right to be represented by any employee organi- zation of their own choosing, to negotiate collectively through a certified bargaining agent with their public employer in the de- termination of the terms and conditions of their employment, and to be represented in
the determination of grievances arising thereunder. Public employees shall have the right to refrain from exercising the right to be represented."
It will be noted that Section 447.301(1) and (2) restate as rights of public employees all the rights stated in Section 477.03 with the exception of the right to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. Section 447.03 is in Part I of Chapter 447 which is applicable to the private sector, while Section 447.301 is in Part II of Chapter 447 which is applicable to the public sector. The General Counsel asserts that Section 447.03 creates in public employees the right to engage in concerted activity. While this right exists in employees in the private sector, the specific deletion of the right, to engage in concerted activity in the provision specifically applicable to the right of public employees is indicative of the clear legislative intent not to extend that right to public employees. See Fla. Jur., Statutes, Section 390, Expressio Unius Est Exclusio Alterius Further, the legislative intent may be gleaned from the purpose of Part II which establishes the scheme of regulation and control of employee organization seeking to represent public employees as bargaining agents. Any process which would circumvent regulation and control would be contrary to the part's specific purpose. If as argued by General Counsel, any employee or group of employees may exercise a right to engage in concerted activity for the purpose of collective bargaining, then the regulatory scheme may be defeated, and the public employer may be required to negotiate with anyone representing any group, no matter how constituted, concerning subjects of collective bargaining. Clearly, Part II does not permit this because specific requirements are established in the part for registration of employee organizations, certification of bargaining units and agents, and the process for collective bargaining between the certified bargaining agent and the public employer. Section 30, Fla. Jur., Statutes, Section 104, Purpose of Statute. Lastly, Section 447.03 is a general provision, while Section 447.301 is a provision specifically applicable to public employees. The provisions of Section 447.501(1)(a) relate specifically to the interference with rights guaranteed public employees. Section 447.301, as the portion of Part II relating specifically to public employees, sets forth the rights of public employees. See 30 Fla. Jur., Statutes, Section 121, General and Specific Statutes or Provisions.
As stated above, the legislature's specific deletion of the right of public employees to engage in concerted activity for the purpose of collective bargaining is clearly intentional because the same legislature having amended Section 447.03, clearly was aware of its provisions. This deletion was necessary to prevent a means of avoiding the regulatory provisions of Part II. Based on the foregoing, the Hearing Officer concludes that the right to engage in concerted activity is not extended to public employers by Section 447.03, Florida Statutes.
The provisions of Section 447.501(1)(a) and (b), Florida Statutes, protect the public employee from interference by the public employer with the free exercise of his rights guaranteed under the act. Section 447.301, Florida Statutes, guarantees to public employees the following rights:
"(1) Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or partici-
pating in, any employee organization of their own choosing."
The public employer's interference with the rights stated above would constitute an unfair labor practice.
Whether the public employer in this instance violated Section 447.501(1)(a), Florida Statutes, depends on whether the group signing the memorandum was an employer organization and whether Barton's discharge was based upon his participation in the drafting and submission of the memorandum. The facts clearly establish that Barton was discharged in part because of his participation in drafting and submitting the memorandum. Whether the group was an employee organization is a key question to be answered. If the signers of the memorandum constitute a group, then the public employer has interfered with Barton's right to form, join, or participate in an employer organization.
An employer organization is defined by Section 447.203(10), Florida Statutes, as follows:
" . . . any labor organization, union, association, fraternal order, occupational or professional society, or group, however organized or constituted, which represents or seeks to represent any public employee
or group of employees concerning any matters relating to their employment relationship with a public employer.
In the instant case the relevant group was the signers of the memorandum. The signatures indicate that Barton and thirteen (13) other Eustis police officers signed the memorandum. By signing the memorandum, all of the police officers indicated they agreed with the comments contained in the memorandum drafted by Barton. Their dissatisfaction with the radio procedure was their point of agreement around which they came together. By signing the memorandum they set themselves apart from the other police officers of the department, and joined together to seek a change in the radio procedures.
The subject of their dissatisfaction was more than mere compliance with the procedure of the Eustis Police Department which was unpleasant or tedious. Their dissatisfaction related substantially to the effect the radio procedures had on their safety while in the field on patrol. The memorandum states in part as follows:
"Acknowledgement from the base station allows for an orderly transmission method and assures the officer his message has been received by allowing the dispatcher time to stay in control his thoughts.
The extra amount of time used to insure your message is understood is quite im- portant when you consider your very life just might depend on this factor. . ."
Had the subject of their coalition not been related to safety or some other condition of their employment, it would not relate to their employment relationship. However, a clear relationship to employee safety is presented in the memorandum.
By presenting the memorandum to the chief of police, Barton sought to represent the views of the signers regarding the radio procedure to the chief. Based on the foregoing, the facts clearly establish there was an employee group organized to express opposition to matters which related to their safety on the job which is an aspect of their employment relationship. The group sought to change the radio procedure to increase their safety. Therefore the group was an employee organization, and Barton was discharged for joining, forming, and participating with the employee organization in drafting and submitting the memorandum to the chief of police. It should be noted that while the employees have the right to informally organize, there is no obligation on the public employer to negotiate with any organization except when certified as a bargaining agent.
Although Barton was discharged in part because of his activities regarding the memorandum, the facts show that Barton did solicit membership in the West Central Florida Police Benevolent Association during the working hours of an employee on duty. This is a specific violation of Section 447.501(1)(a), Florida Statutes. This violation constitutes good cause for disciplinary action. Therefore, the ultimate question becomes whether Barton was discharged because of impermissible organizational activities or whether he was discharged for impermissible motives. If the facts presented by the General Counsel prove by the greater weight of the evidence that Barton was discharged because of impermissible motives, then a violation has been established. Where both permissible and impermissible motives for discharge exist, the General Counsel must show more than evidence of an improper motive, but must also demonstrate that the employer acted because of an improper motive and not because of the proper motive. The burden of proof remains with the General Counsel in presenting evidence that the employer acted because of an improper motive.
The evidence indicates that the chief of police became disenchanted with Barton over the memorandum on radio procedure. This was about the same time that Barton became involved with the organizational effort of the West Central Florida Police Benevolent Association. Subsequently, the chief went to the city manager, Mr. Hoppe, and the city attorney and declared his desire to discharge Barton. At their request, the chief provided them with all the derogatory information he possessed on Barton. This information was evaluated by the city attorney and manager and much of it discarded. The eventual grounds for discharge consisted of several charges which were described as conduct which was disrespectful to the chief and contrary to good discipline within the department. Much of this conduct related to the West Central Florida Police Benevolent Association organizational effort and directly or indirectly to submission of the memorandum. There was evidence introduced that the chief had spoken against unionization of the department, and had threatened to discharge any officer who joined. The evidence indicates that the grounds asserted for discharge were culled from the data provided by the chief to the city manager and city attorney as being the grounds most sustainable if Barton appealed his discharge.
The facts supporting the finding of a violation of Section 447.501(1)(a), Florida Statutes, are: (1) that Barton was discharged, (2) that the chief made threats to fire any policeman involved in any union, (3) that the chief's recommendation to discharge Barton came after Barton became active in the West Central Florida Police Benevolent Association, (4) that Barton was active in the, West Central Florida Police Benevolent Association organizational effort, (5) that Barton prepared and submitted the memorandum, (6) that the specific grounds for discharge were not important to the city manager and city
attorney if the grounds were sustainable on appeal, and (7) that the chief's dissatisfaction with Barton sprang forth immediately following his receipt of the memorandum.
Under the circumstances in this case, the General Counsel has presented substantial and competent evidence that Barton was discharged because of impermissible motives, and that the basis for discharge were not important as long as they were sustainable on appeal under the personnel rules. Under these circumstances, the public employer has violated Section 447.501(1)(a) and (b), Florida Statutes.
Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Public Employees Relations Commission enter its order directing the following:
DONE and ORDERED this 8th day of June, 1977, in Tallahassee, Florida.
STEPHEN F. DEAN
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
C. Anthony Cleveland, Esquire
Norman F. Burke, Esquire
Van Den Berg, Gay & Burke, P.A.
Ben R. Patterson, Esquire 1215 Thomasville Road
