STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PUBLIC EMPLOYEES RELATIONS COMMISSION )

)

Petitioner, )

and )

) LAUDERHILL FIRE FIGHTERS ASSOCIATION, )

LOCAL 2332, I.A.F.F., ) CASE NO. 77-430

) PERC NO. 8H-CA-776-1182

Charging Party, ) PERC NO. 8H-CA-776-1026

)

vs. )

)

CITY OF LAUDERHILL, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on May 17, 1977. The Public Employees Relations Commission (PERC) made no appearance. The charging party, Lauderhill Fire Fighters Association, Local 2332, I.A.F.F. (the union) appeared through its vice-president, Alfred J. Scheiblich, and its secretary-treasurer, Richard Schwartz. Respondent appeared through counsel,

Mr. Anthony J. Titone, Esq. 6299 West Sunrise Boulevard Sunrise, Florida 33133

By letter dated February 25, 1977, Mr. William E. Powers, Jr., general counsel for PERC, forwarded a copy of a complaint numbered 8H-CA-766-1182 to the Division of Administrative Hearings, requesting in a cover letter that a hearing be set "as soon as possible." The same day Mr. Powers also wrote Mr. Robert A. Sugarman, Esq., counsel for the union, and advised Mr. Sugarman that he had "determined to assume the burden of presenting the evidence in support of the allegations set forth in the Complaint."

On March 31, 1977, Mr. Powers forwarded a second complaint, Case No. 8H-CA- 776-1026, to the Division of Administrative Hearings, together with a direction of consolidation. The direction of consolidation was treated as a motion for consolidation pursuant to Rule 28-5.07, F.A.C.; the motion was granted at the final hearing.

On April 11, 1977, the undersigned hearing officer wrote the parties that he intended to set this matter down for final hearing on May 17, 1977, unless the proposed date would create a conflict for one of the parties. On April22, 1977, PERC issued a notice of hearing, and on April25, 1977, notice of hearing issued from the Division of Administrative Hearings. Both notices set the final hearing for May 17, 1977.

On May 11, 1977, PERC's general counsel filed a motion for continuance with PERC's chairman, which the chairman purported to grant. The grounds recited in the motion for continuance addressed to PERC's chairman were that a decision by PERC in a related case, which would have a bearing on the present case, was "expected in the near future." When apprised of this development by Ms. Jane Rigler, assistant to the general counsel, the hearing officer indicated his willingness to entertain a motion for continuance, but the general counsel declined to file a motion for continuance with the Division of Administrative Hearings. On May 12, 1977, the hearing officer entered an order making clear that the final hearing would take place on May 17, 1977, as previously scheduled. Also on May 12, 1977, and again on May 16, 1977, the hearing officer communicated to counsel by telephone that the hearing would take place as scheduled; this message was left at Mr. Sugarman's office because he was not in.

PERC made no appearance at the final hearing. Mr. Sugarman sent word that he was participating in another hearing, a conflict that was presumably scheduled in reliance on PERC's assurance that it would assume the burden of presenting evidence at the final hearing in the present case. Messers.

Scheiblich and Schwartz, officers of the union, appeared and moved for a continuance, ore tenus, citing the absence of Ms. Rigler, PERC's general counsel, and of Mr. Sugarman. This was the first and only motion for continuance ever addressed to the hearing officer. The motion was denied because witnesses had already gathered in response to subpoenas and because otherwise PERC would have accomplished indirectly, by its nonparticipation, what it had not succeeded in accomplishing directly, viz., granting itself a continuance.

The reason that PERC cannot grant itself a continuance, once it has referred a matter to the the Division of Administrative Hearings, is that the model rules give the hearing officer the final say on continuances. Rule 28- 5.27, F.A.C. The rules give this responsibility to the hearing officer, rather than to one of the parties, because otherwise one party would have an unfair advantage. The Division of Administrative Hearings is designed to function as a central pool of neutral fact finders. However, neutral the hearing officer, the neutrality of the fact finding process would be comprised if the referring agency could insist that facts be found on the basis of evidence adduced at a time established by the agency unilaterally, since the outcome of a case may well turn on the availability of key witnesses.

PERC filed with the Division of Administrative Hearings a motion to strike a motion of respondent's answer, which motion was granted. The prehearing motion to strike raised questions of substantive law, while the motion for continuance was, of course, entirely a case-handling or procedural matter.

By stipulation of the parties, respondent put on its case at the final hearing first. After the hearing, counsel for all parties were furnished transcripts of the proceedings and were invited to submit written argument and/or a proposed recommended order. Counsel for respondent and counsel for the union each submitted proposed recommended orders, but counsel for PERC elected not to.

After receipt of the transcript, counsel for the union filed a motion to reopen record. On the basis of a stipulation entered into between counsel for respondent and counsel for the union, which was filed with the Division of Administrative Hearings on July 14, 1977, the motion was granted.

FINDINGS OF FACT

1. In the fall of 1976, James McKnight was fire chief for respondent City of Lauderhill. At that time there was a vacancy in respondent's fire department for a fire lieutenant. Respondent's mayor gave Chief McKnight a list of three names which had been given to the mayor by the civil service board. The mayor told the fire chief to pick a person from the list for the fire lieutenant position and said "that he had been advised that the lieutenants were not eligible or allowable to belong to the union." (R17) The names on the list were those of Messrs. Scheiblich, Farmer and Schwartz, in that order, all of whom worked for respondent as firefighters.

   
   

2. On September 30, 1976, Chief McKnight summoned Mr. Scheiblich to his office and discussed promoting him to fire lieutenant. The fire chief told Mr. Scheiblich that he could not be active in the union while service as a fire lieutenant and that he would have to resign from the union at the conclusion of his probationary period as a fire lieutenant. Mr. Scheiblich answered that he was under the impression that, although he would have to leave the bargaining unit, he could remain an active member of the union, but that, if a promotion would require his leaving the union, he would rather forego the promotion and remain a member of the union. Chief McKnight said he would consult the city attorney for his advice on whether Mr. Scheiblich's promotion would require his resignation from the union.

   
   

3. Chief McKnight telephoned the city attorney, Mr. Titone, who told him that Mr. Scheiblich's serving in the rank of fire lieutenant would necessitate his resigning from the union. This advice was based in part on PERC's decision in its Case No. 8H-RC-756-1240. In that case, On June 23, 1976, PERC voted two to one to exclude fire lieutenants from the bargaining unit; because, as was subsequently explained, in the written order entered in Case No. 8H-RC-756-1240 on October 4, 1986, "the lieutenants manage the men on a day-to-day basis and will provide the basic input for promulgating and evaluating collective bargaining proposals submitted during negotiations." Although the record does not reflect that respondent had made a separate application for determination of the managerial or confidential status of fire lieutenants, respondent's attorney acted in good faith in advising Chief McKnight that Mr. Scheiblich would not be eligible for promotion to fire lieutenant if he was unwilling to resign from the union; and Chief McKnight acted in good faith in following Mr. Titone's advice.

   
   

4. Acting on instructions from the mayor, whom he had apprised of the situation, Chief McKnight next interviewed Mr. Farmer. Among the questions he asked Mr. Farmer was one "about having to get out of the union in order to be able to accept lieutenant's promotion; and he said, it was all right with him" (R19) After this interview, Chief McKnight recommended Mr. Farmer's promotion, just as he had earlier recommended Mr. Scheiblich's promotion. The mayor was pleased with Mr. Farmer's selection. He nevertheless told the fire chief to interview the only other person listed, Mr. Schwartz, which Chief McKnight did even though he "couldn't see the necessity." (R29) The question of fire lieutenants' union membership came up in the Schwartz interview, too, and Chief McKnight indicated he was relying on what he had been told by the mayor and by the city attorney.

   
   

5. At the time of these events, Mr. Scheiblich was union president and Mr. Schwartz was secretary-treasurer of the union. Chief McKnight and Mayor Cipolloni were aware of this because a letter from Mr. Schwartz, dated August 16, 1976, had so informed them. After Chief McKnight had interviewed Mr. Scheiblich for the fire lieutenant's job, he saw for the first time and read a

   petition signed by most of the firemen in respondent's employ, including all three persons listed as possibilities for promotion to fire lieutenant. This petition was critical of the management of the fire department, and "was a pretty strong petition. It was ultimately very successful. It got [Chief McKnight] fired." (R18) After reading the petition, Chief McKnight was unsure how long he would remain fire chief, and he told Mr. Scheiblich "to just sit tight [because Chief McKnight] wasn't going to do anything about promoting somebody to lieutenant until [he] was sure whether [he] was still working [for the fire department himself]." (R18-19)

   
   

6. The firemen's petition upset Chief McKnight, but did not influence his recommendations for fire lieutenant. Chief McKnight withdrew his recommendation that Mr. Scheiblich be promoted to fire lieutenant, because Mr. Scheiblich would not agree to resign from the union, which respondent's mayor and city attorney had advised Chief McKnight would be necessary. Chief McKnight recommended that Mr. Farmer be promoted to fire lieutenant because his name was next on the list and because Mr. Farmer had no objection to resigning from the union at the end of a probationary period as fire lieutenant. Chief McKnight did not recommend that Mr. Schwartz be promoted to fire lieutenant because he had already recommended Mr. Farmer for the position, and Mayor Cipolloni had indicated he was going to accept the recommendation that Mr. Farmer be promoted. Mr. Farmer was in fact promoted to fire lieutenant, while Messers. Scheiblich and Schwartz were not.

   
   

7. The case file reflects that the union filed unfair labor practice charges against respondent and mailed a copy to respondent's counsel on October 8, 1976. In addition to alleging that the circumstances surrounding the promotion of Mr. Farmer amounted to an unfair labor practice, the union alleged that respondent's mayor, Eugene Cipolloni, had sent two letters and made a public statement that constituted unfair labor practices.

   
   

8. On or about October 13, 1976, Eugene Cipolloni, respondent's mayor, gave Chief McKnight a verbal directive to change the fire department's temporary shift exchange policy, effective November 1, 1976. Even though respondent's city council had adopted the policy on August 13, 1976, as its Resolution No. 572, the mayor felt a memorandum under the fire chief's signature should suffice to alter the policy. Before the change, the procedure was that a fireman who wanted another fireman to fill in for him made his request in writing and secured the signature of the proposed substitute. These requests then went up through the chain of command and were routinely granted. On one occasion, a fire lieutenant failed to report as a substitute, after agreeing to do so.

   Since the change in policy, temporary shift exchanges have only been allowed in cases of illness or in other emergencies. This change in policy was ordered by Mayor Cipolloni in retaliation for the filing of the unfair labor practice charges, although ensuring a full complement on each shift was the ostensible reason for the change in policy.

   
   

9. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.

   
   

   CONCLUSIONS OF LAW

   
   

10. Respondent City of Lauderhill, a municipality, is a public employer within the meaning of Section 447.203(3), Florida Statutes (1975). Mayor

    Cipolloni and Fire Chief McKnight acted as agents of respondent at all times pertinent to these charges.

    
    

11. The charging party is an employee organization within the meaning of Section 447.203(10), Florida Statutes (1975), because, at all times pertinent to these charges, the charging party was a union seeking to represent firefighters employed by respondent.

    
    

12. Respondent discriminated against Mr. Scheiblich by not promoting him to fire lieutenant on account of his unwillingness to relinquish his union membership, but this was done in the good faith belief that fire lieutenants were managerial and/or confidential employees, within the meaning of Section 447.203(4) and (5), Florida Statutes. (1975).

    
    

13. No public employer can obtain an official determination of the confidential or managerial status of its employees, without voluntarily applying to PERC for a ruling on the question. Section 447.203(3)(d), Florida Statutes (1975). In keeping with the decision in School Board of Marion County v. Public Employees Relations Com'n, 330 So.2d 770 (Fla. 1st DCA 1976), respondent does not claim that PERC had officially decided that respondent's fire lieutenants should be classified as managerial or confidential employees. But respondent understandably and justifiably relied on PERC's determination in Case No. 8H-RC- 756-1240 that fire lieutenants should be excluded from the proposed bargaining unit. That decision "Impinge[d] the statutory initiative granted to public employees in the identification of managerial and confidential employees . . . [because PERC explicitly took] care that no managerial or confidential employees

    . . . [be] included in the proposed unit . . ." School Board of Marion County

    v. Public Employees Relations Comm'n , 330 So.2d 770, 777 (Fla. 1st DCA 1976) (Smith, J., dissenting). The discussion at the June 23, 1976, hearing before PERC in Case No. 8H-RC-756-1240 centered on the managerial duties performed by fire lieutenants, and the decision in Case No. 8H-RC-756-1240 amounted to an unofficial determination that respondent's fire lieutenants are managerial employees. Chief McKnight was justified in relying on the advice of Mr. Titone, the city attorney, whom he knew to have been present at the hearing held on June 23, 1976.

    
    

14. According to PERC's motion for continuance, an official determination as to whether respondent's fire lieutenants are managerial employees "is expected in the near future." The motion for continuance recites that an "evidentiary and fact finding hearing was held in February, 1977, in PERC Case Nos. 8H-RC-776-1126 and 8H-MC-766-1002 (involving parties identical to those in the present cases), in order to determine whether the lieutenants of the Lauderhill Fire Department are managerial employees as defined in Section 447.302(4), Florida Statutes (1975)." Whatever the final decision in Cases Nos. 8H-RC-766-1126 and 8H-MC-766-1002 may be, respondent did not have the benefit of having them to refer to at the time Mr. Farmer was promoted to fire lieutenant. Although passing Mr. Scheiblich over in favor of Mr. Farmer may have had the effect of "discouraging membership in [an] employee organization," Section 447.203(1)(b), Florida Statutes (1975), PERC should be estopped from finding respondent guilty of an unfair labor practice based on a course of action respondent took in good faith reliance on PERC's decision in Case No. 8H-RC-756- 1240.

    
    

15. By ordering the fire chief to change the temporary shift exchange policy in retaliation for the filing of unfair labor practice charges, respondent's mayor violated Section 447.501(d), Florida Statutes (1975).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent restore and reestablish the temporary shift exchange policy which obtained before the memorandum posted on October 13, 1976, changed the policy, effective November 1, 1976.

DONE and ENTERED this 29th day of July, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

William E. Powers, Jr., Esq. General Counsel

Public Employees Relations Commission 2003 Apalachee Parkway

Suite 300

Tallahassee, Florida 32301

Anthony J. Titone, Esq. City Attorney

City of Lauderhill

6299 West Sunrise Boulevard Ft. Lauderdale, Florida 33313

Robert A. Sugarman, Esq. Post Office Drawer 520337 Miami, Florida 33121

APPENDIX

The charging party's proposed findings of fact have been adopted, in substance, insofar as relevant, with these exceptions: There was only one opening for fire lieutenant. Chief McKnight had the authority to select the person for promotion only in the sense that he had authority to recommend somebody for promotion. Some of the details of the temporary shift exchange policy set forth in the last paragraph of page four of the charging party's proposed fact findings were recited by Mr. Schwartz in the course of examining witnesses but were not established as part of the evidence adduced at the hearing.

Respondent's proposed fact findings Nos. 1, 3(b), 3(d), and 3(f)-(h), have been adopted, in substance. Respondent's proposed fact findings Nos. 2(a)-(e) have been rejected because the evidence as a whole persuaded the hearing officer that the change in temporary shift exchange policy was in retaliation for the

filing of unfair labor practice charges. Both the mayor and the fire chief testified that the change was ordered by the mayor himself and that the fire chief merely carried the mayor's order out. The procedure by which the previous policy had been adopted was not followed in amending the policy. The change came at a time of upheaval, after a period of "rumors and commotion," (R19), and at a time when the mayor had just been accused of personally committing unfair labor practices. The mayor's demeanor at the hearing and the evasive manner in which he answered Mr. Schwartz's questions contributed significantly to the hearing officer's conclusion: In testifying, the mayor essentially took the tack that there had been change in the temporary shift exchange policy. The only credible testimony concerning shortcomings under the original policy concerned a single instance in which a fire lieutenant had failed to show up for a shift he had agreed to work, for which dereliction he had been disciplined.

Respondent's proposed fact findings No. 3(a) and 3(c) have been rejected because the evidence showed that respondent failed to promote Mr. Scheiblich because he would not agree to resign from the union at the end of a probationary period as fire lieutenant. Respondent's proposed fact finding No. 3(e) has been rejected because Chief McKnight had also been advised by the mayor and the city attorney on the question of the fire lieutenants' managerial status.

Docket for Case No: 77-000430

Orders for Case No: 77-000430