STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL BROTHERHOOD )

OF FIREMEN AND OILERS, )

LOCAL 35, AFL-CIO, )

)

Charging Party, )

)

vs. ) CASE NO. 77-965

)

CITY OF GULFPORT, )

)

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 cause on August 17, 1977, in Gulfport, Florida.

APPEARANCES

For Charging Party: Frank E. Hamilton, Jr., Esquire

Hamilton, Douglas & Bennett, P.A.

101 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: William E. Sizemore, Esquire

Shackleford, Farrior, Stallings & Evans, P.A.

Post Office Box 3324 Tampa, Florida 33601

Based upon a charge filed June 22, 1976, by International Brotherhood of Firemen and Oilers, Local #5, AFL-CIO, (herein sometimes called the Charging Party or the Union), the General Counsel of the Public Employees Relations Commission (herein sometimes called PERC or the Commission) issued a complaint on May 19, 1977 alleging that the Respondent has engaged in acts (set forth hereinafter in detail) which constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), of the Public Employees Relations Act (herein sometimes called the Act).

ISSUES

The issues posed for decision are:

1. Whether the Respondent, by its agent Lawrence McCarthy, unlawfully discharged Jerome Cilhar on June 21, 1976, in violation of Section 447.501(1)(b), of the Act.

2 . Whether the Respondent, by its agent and representative, Lawrence McCarthy, unlawfully interrogated and threatened employees on April 30, and May 4, 1976, within the meaning of Section 447.501(1)(a), of the Act.

Based upon my observation of the witnesses and their demeanor while testifying, including the entire record compiled herein) I make the following:

FINDINGS OF FACT

1. The Respondent, City of Gulfport, Florida, is a Florida municipal corporation located in Pinellas County, Florida. During times material to this proceeding, the City Manager was Mr. Harry Perkins (Perkins) who had the ultimate authority over personnel matters including hirings, discharges, levels of manpower, administration of federal employment assistance programs, as well as labor relations. During times material to this proceeding, Mr. Lawrence McCarthy (McCarthy) was employed by Respondent as Director of Public Works. As such, he had operational responsibility for sanitation, water and sewer, streets and parks among others. While McCarthy had the authority to manage his department, the hiring and discharge of employees and the general administration of budgets was handled by Perkins with some input and recommendation by McCarthy. During 1975, Gulfport contracted with Pinellas County, Florida to be a member of a consortium to receive federal supplemental employment assistance funds from the federal government under the Comprehensive Employment and Training Act (CETA). Under this contract, Gulfport was required to follow all federal rules and regulations adopted under the CETA program.

   
   

2. In March, 1975, Mr. Jerome Cilhar (Cilhar or the alleged discriminatee) had been unemployed for the requisite period of time to qualify for employment under the Pinellas County CETA program. Cilhar applied for a CETA position with Gulfport and, after the interview, was hired as a sanitation worker in the Public Works Department on March 3, 1975. He (Cilhar) was hired along with a Mr. Johnson who was also hired by Respondent under the CETA prograin as a sanitation worker, On July 17, 1975, an election was conducted by PERC among a comprehensive unit of Respondent's blue and white collar employees. The Petitioner therein did not receive a majority of the valid ballots cast. With these facts, both Perkins and McCarthy were under the impression that no union organizational campaign could begin until after the expiration of a one year period from the date of the election.

   
   

3. Respondent operates on a fiscal year basis from October 1, until September 30. For the fiscal year 1975 to 1976, Respondent had budgeted approximately 130 positions for employees. In April and May, 1976, testimony reveals that Perkins became concerned that estimated revenues from services and taxes would not be reached during fiscal year 1975 through 1976 and that expenses would exceed the amount estimated. In this regard, it was noted that Respondent realized an operating deficit of approximately $200,000 for the fiscal year 1975 to 1976. In response to projected deficits, Perkins began personnel cutbacks in May, 1976, since personnel costs represented the largest single budget expenditure. Between May of 1976 and September 30, 1976, Perkins trimmed the City's work force by approximately 20 percent or a net loss of 26 employees. (See Respondent's Exhibit #4). In this regard, the evidence revealed that the City operated the sanitation department without any upward manpower adjustments until February, 1977, when employees were transferred to that area.

   
   

4. Mr. Cilhar stated that he voluntarily informed Mr. McCarthy (the Public Works Director) of his desire for a union in late April, 1976. He testified

   that he and Barney White, a fellow employee in the sanitation department volunteered this information respecting their union activity because White was upset about the lack of pay raises. He testified that Barney White took the initiative in the conversation with McCarthy and in this regard, the evidence revealed that White who, as best as the record reveals, made all of the comments respecting their union activities. Cilhar testified that he noted no change in his relationship with the City and its employees during the six week interim between the date he and White made known their union activities to Respondent's agent (McCarthy) and the date of his discharge on June 21, 1976. Evidence reveals that Respondent made the decision (jointly by Perkins and McCarthy) to retain CETA employee Johnson, whose seniority was equal to Cilhar's, based on the fact that Johnson was more versatile in terms of his employment skills and Respondent was of the opinion that he would be of more assistance in that he could be assigned to a multitude of tasks.

   
   

5. Cilhar also advanced the position that Respondent terminated him because he was arranging to schedule a union meeting on the date that he was discharged. The testimony in this regard establishes, on balance, that the Respondent made its decision to terminate Cilhar on Friday, June 18, but could not locate Cilhar because he had left to go home when the final decision was made by Respondent. He was contacted and advised of the termination decision by Respondent early the following Monday, June 21, 1976. He was given an exit interview and advised that his job was being abolished due to the lack of CETA fundings for the next fiscal year. He was also paid for his accrued annual leave from CETA funds. In this regard, Respondent established that this was done to curb employment costs from municipal funds since the payment of Cilhar's leave would have come from municipal funds had the decision been postponed until the end of the fiscal year. It was also noted in this regard that in its effort to realize economy through personnel cuts, Perkins terminated Ryan Larison, a budgeted city employee in the Sanitation Department on June 16, 1976 and thereby realized an economic savings. Pertinent CETA rules and regulations as well as the Respondent's contract with Pinellas County required that the City utilize federal CETA funds only as supplemental to budgeted employment positions. Thus Respondent could not maintain CETA positions instead of budgeted positions under its contract and the regulations. See Respondent's Exhibit #2, Section 205(c)(8). With these facts, I conclude that the Respondent did no more than it was required to do or in fact was compelled to do based on the financial restraints that it was operating under and its regulations with Pinellas County under the CETA program. As Respondent aptly notes, union activity does not insulate an employee from discharge for cause. While there were some uncertainties in this record, and some suspicions automatically arise from the fact that a union adherent was discharged while an employee of equal seniority with, as best as can be determined by the record, little or no union sympathies, these suspicions provide no substitute for record evidence upon which a finding can be made that the Respondent discharged the alleged discriminatee based on his union sympathies or desires as alleged in the complaint. I shall therefore recommend that this allegation be dismissed.

   
   

   THE ALLEGED THREATS AND INTERROGATION

   
   

6. The complaints cite two instances in which the Respondent's agent, McCarthy, engaged in unlawful threats and/or interrogation. Witnesses testifying to these remarks during the hearing were Messrs. McCarthy and Rousseau. Both testified that in essence McCarthy warned that "they had a constitutional right to do any damn thing they wanted, but while on City property and on City time, solicitation of union activities was not condoned. Any one I heard would be subject to dismissal". McCarthy testified frankly and

   openly with respect to his remarks to employees respecting solicitation while on City time and property. Given all of the circumstances of this case and the complete absence of any evidence indicating that the Respondent engaged in any independent acts to unlawfully interfere with, restrain or coerce employees to exercise those rights guaranteed them in Chapter 447, I am of the opinion that the remarks given employees by McCarthy respecting solicitations for unions on City time on City property did not rise to the level of unlawful activity as defined in Chapter 447.501(1)(a), Florida Statutes. Accordingly, I shall recommend that the complaint allegations be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapters 120 and 447, Florida Statutes.

   
   

9. The authority of the Commission is derived from Chapter 447, Florida Statutes.

   
   

10. The Respondent, a public employer, has its principal place of business in the City of Gulfport, Pinellas County Florida, where it is engaged in the business of operating a municipality and during times material herein, was a public employer within the meaning of Section 447.203(2) of the Act.

    
    

11. 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.

    
    

12. Insufficient evidence was offered to establish that the Respondent, by its agent and representative, Lawrence McCarthy, threatened employees with discharge or other reprisals because of their union or other protected activities on April 30, 1976, or that it unlawfully interrogated two employees concerning employee organizational activity among its employees and threatened and/or coercively informed them that union activists might be discharged on May 4, 1976, as alleged in the administrative complaint.

    
    

13. Insufficient evidence was offered to establish that the Respondent on or about June 21, 1976, by its representatives, Harry Perkins and Lawrence McCarthy, discharged Jerome Cilhar from his employment with Respondent based on the belief that he had joined, assisted, supported or otherwise favored an employee organization or engaged in other concerted protected activities for the purposes of collective bargaining or for employees mutual aid and protection.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety.

RECOMMENDED this 3rd day of October, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Frank E. Hamilton, Jr., Esquire

101 East Kennedy Boulevard Tampa, Florida 33602

William E. Sizemore, Esquire Post Office Box 3324

Tampa, Florida 33601

Docket for Case No: 77-000965

Orders for Case No: 77-000965