STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL EMPLOYEES, ) AFL-CIO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2225

) SCHOOL BOARD OF ORANGE COUNTY, )

)

Respondent, )

and )

) LABORERS INTERNATIONAL UNION OF ) NORTH AMERICA AND AMALGAMATED ) TRANSIT UNION, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, held a public hearing in this case on January 10, 1978, in Orlando, Florida.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

1215 Thomasville Road Tallahassee, Florida

For Respondent: John W. Bowen, Esquire

Rowland, Petruska, and Bowen

308 North Magnolia Avenue Post Office Box 305 Orlando, Florida 32802

For Intervenors: Richard R. Frank, Esquire

Mark F. Kelly, Esquire

Law Offices of Richard H. Frank

341 Plant Avenue Tampa, Florida 33606

Pursuant to a petition filed by the School Board of orange County, (Public Employer herein), the Division of Administrative Hearings was requested, on December 16, 1977, 1/ to conduct a proceeding herein pursuant to Section 120.57(1), Florida Statutes (1975), to assist the school board in making a decision as to:

1. What constitutes an appropriate unit for the purpose of collective bargaining, and

   
   

2. Determining whether or not the American Federation of State, County and Municipal Employees (AFSCME herein) enjoys majority status as an exclusive collective bargaining representative within an appropriate unit.

It was based on this request that the undersigned Hearing Officer issued an original Notice of Hearing on December 21, scheduling this matter for hearing on January 6, 1978, in Orlando, Florida. On or about January 5, 1978, the undersigned received telephonic conversations from the Intervenors' counsels and representatives seeking a continuance of the above referenced hearing based on their stated claim of failure to receive notice of the proposed hearing.

Additionally, the Intervenors counsel questioned the Division of Administrative Hearings' jurisdiction to conduct such hearings, pointing out that the matters to be considered in the instant proceeding were matters resting exclusively within the domain of the Public Employees Relations Commission citing Florida Statutes Sections 120.57(1)(a) and (7), 447.307 and 447.207(6). The Intervenors' motion to continue the hearing herein was granted and rescheduled for hearing on January 10, 1978.

At the outset of the hearing, the undersigned was hand delivered motions filed by the Intervenors to quash the Notice of Hearing issued herein and to dismiss the petition filed by the Public Employer.

The undersigned considered the "preemptive" effect of the Public Employees Relations Commission's jurisdiction to determine whether or not this Division had any jurisdiction pursuant to Chapter 120.57(1), Florida Statutes. Chapter 120.57(1) authorizes this Division to conduct a formal proceeding [in matters] in which the substantial interests of the parties are determined by an agency whenever the proceeding involves a disputed issue of material fact and Subsection (1)(a)(7) provides in pertinent part that this division shall conduct all hearings under this Subsection, except for. . .hearings of the public Employees Relations Commission in which a determination is made of the appropriateness of the bargaining unit, as provided in Section 447.307, (Florida Statutes). Aside from the fact that this is not "a hearing of the Public Employees Relations Commission," Chapter 447.307 expressly authorizes the Petitioner, (Public Employer herein), to unilaterally determine the varied issues pending in the instant hearing herein. There is no question but that the issues pending herein are matters which affect the "substantial interests" within the meaning and contemplation of Section 120.57(1), Florida Statutes.

Nor does Chapter 447, Florida Statutes prohibit Public Employers and Employee organizations from entering into voluntary recognization agreements. It is true, as the Intervenor points out, that where an employee organization is seeking certification from the Public Employees Relations Commission (PERC), the Commission may at its option, conduct a de novo hearing to determine both unit appropriateness and issue recommendations commensurate with its independent findings. However, there is nothing in this record which provides a basis for concluding that such a procedure will in fact occur especially in view of the extended hiatus existing from the time that the Intervenors had expressed some organizational activity among the public employees and the absence on the part of the Intervenors to file an RC petition with PERC. For all of the above reasons, it is concluded that the Division of Administrative Hearings has jurisdiction pursuant to Chapter 120.57(1), Florida Statutes, to conduct the instant proceeding.

Based on the testimony of the witnesses and their demeanor while testifying, including the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. Based on a letter dated November 4, AFSCME requested that the School Board of Orange County, Florida, voluntarily recognize it as the sole and exclusive collective bargaining agent for employees of the School Board in a proposed unit of "non-instructional" personnel. AFSCME also expressed its desire to engage "possible neutral third parties" to verify the authenticity of certain authorization cards it possessed. (Employer's Exhibit No. 1)

   
   

2. On November 10, Messr. James E. Carroll, Assistant to the Superintendent for Employee Relations, advised AFSCME's Assistant Area Director, Messr. David McGhee, by letter dated November 10, that their formal request had been received and would be placed on the school board agenda on November 14, if, pursuant to board policy, written notification was received within 24 hours prior to preparation of the agenda for the school board's meeting. Employer's Exhibit No. 2) by Letter dated November 14, Messr. McGhee was advised by Dr. L. Linton Deck, Jr., Superintendent, that AFSCME desired to appear before the board at its next regularly scheduled meeting for November 22. (Employer's Exhibit No. 3). By letter dated November 22, the Intervenors by their international representative and international special organizer respectively, A. Gross and Charles Loughran, advised Assistant Superintendent Carroll that the Intervenors were engaging in organizational activities among the board's employees and "[would] be petitioning the board for voluntary recognition in the very near future for an election to be conducted by the Public Employees Relation Commission." Messr. Carroll did not respond to such meeting since, in his opinion, he was of the opinion that the impetus in triggering such request rests with the Intervenors and no further responses were received from the Intervenors' representatives until on or about January 3, as stated above. By letter dated December 29, Messr. Deck sent a memorandum noticing the instant hearing to all principals and work location supervisors to call this matter to the attention of all classified employees at their work locations and for posting in appropriate places. On that same date, Messr. Carroll advised the Intervenors representatives that the school board had requested a hearing under the Administrative Procedure Act for the purpose of determining the appropriate bargaining unit and whether AFSCME had been designated as the exclusive bargaining agent for all classified employees within the appropriate bargaining unit. Attached to such letter was a Notice of Hearing issued by the undersigned dated December 21. (Employer's Exhibit No. 6)

   
   

3. On approximately two occasions, Messrs. McGhee and Carroll, representing AFSCME and the Public Employer respectively, met informally to determine whether or not the Public Employer would extend exclusive bargaining representative status to a petitioned for group of classified employees on a voluntary basis. These efforts were unavailing inasmuch as the parties were unable to come to terms on a unit description mutually satisfactory. Thereafter, counsel for the Public Employer advised the board that the more orderly procedure in reaching its decision would be to utilize the procedures

   set forth in Section 120.50(7)(1) (Employer's Composite Exhibit No. 7) Based on this recommendation from the board's counsel, the petition was forwarded to this Division requesting that a Hearing Officer be assigned to conduct a Section 120.57(1) hearing.

4. At the hearing, AFSCME and the Public Employer jointly stipulated that the appropriate unit of classified employees of the School Board of Orange County, Florida, for purposes of collective bargaining is as follows:

   
   

   All active classified personnel who are pay- types 15 (teacher aides, permanent substitutes, library clerks, office clerks), 17 (school lunchroom assistants), 19 (teacher assistants, instructional clerks, and nurses), 22 (twelve month, eight hour employees), 30 (bus drivers),

   40 (bus monitors), and 71 (daily teacher aides in non-public schools); and who are not pay grades 16A, 21A, 13B, 12B, 22D, 14F, 13D, 13C, 14J, 14K, 3D, 27A, 51A, 75A, and 14B; and who do not work at the following work locations:

   7300 (Associate Superintendent for Instructional Services), 8200 (Assistant Superintendent for management Services), 8110 (Comptroller), 6600 (Associate Superintendent for Personnel Management), 8205 (Business Word Processing Center Number 4), 8206 (Personnel

   Word Processing Center Number 5), 8202 (Instructional Word Processing), 8203 (Administrative Word Processing Center Number

   2) 8204 (Delaney Word Processing Canter Number 3), 8210 (data Center Operations), 6611 (Instructional Personnel), 6612 (Classified Personnel) 8132 (Payroll Accounting), 8130 (Director of Accounting), 9001 (District Superintendent), 8120 (Food Service Administration), 8131 (General Accounting),

   8220 (Research), and 7555 (CETA Administration). All other positions are excluded. (Joint Exhibit No. 1)

   
   

5. There is no history of collective bargaining for the subject employees. The evidence reveals that within the stipulated unit, there are approximately 3,054 employees. Excluded from the list of classified employees are approximately 106 cafeteria managers, 2 registered nurses, 29 confidential employees, and approximately 516 regular part-time employees.

   
   

6. The evidence reveals that the parties (AFSCME and the Public Employer) stipulated and further agreed to exclude the cafeteria managers based on uncontradicted evidence that cafeteria managers, as part of the their job duties, are called upon to make individual employee assessments, independent decisions and routinely make effective recommendations respecting the hiring and discharge of cafeteria employees. AFSCME and the Public Employer also jointly agreed to exclude approximately 29 "confidential" employees who are assigned to word processing centers and who, during the course of their employment, are privy to confidential employment information respecting other employees. 2/

   
   

7. Also excluded from the stipulated unit were all employees who worked four hours or less daily. The classified employees form the residual group of employees who are non-instructional, administrative, or technical. These part- time employees are largely comprised of administrative secretarial employees who work for associate superintendents, deputy superintendents, assistant

   superintendents, and other confidential employees who, as stated above, have access to confidential information.

   
   

   PLACEMENT OF PART-TIME EMPLOYEES

   
   

8. In resolving unit placement questions, employees' status and tenure are major considerations. The evidence herein reveals that the part-time employees here work within the same unit as those included employees on a regular basis. They therefore have a substantial and continuing interest in the wages, hours and working conditions of full-time unit employees. Farmers Insurance Group, et al, 143 NLRB 240, 244 - 245. In this regard, they like the included employees enjoy the same rate of pay and fringe benefits. Based on the regularity of their employment and the number of hours worked, they cannot seriously be considered part of a "temporary, part-time or casual work force". Fresno Auto Auction, Inc., 167 NLRB 878. And the mere fact that they are called part-time employees does not alter their status as a cohesive group of individuals with a strong mutual interest in their working conditions which, as here, are largely determined by those employees included within the unit. See e.g., Henry Lee Company, 194 NLRB 109. For all these reasons, including the regularity and continuity of employment, the similarity of duties and functions, wages, working conditions and supervision, there is no discernible basis in this record to exclude the part-time employees from the unit. I shall therefore recommend that they be included.

   
   

   AUTHENTICATION OF THE AUTHORIZATION CARDS

   
   

9. A local private investigating firm, Brewer and Associates, was commissioned to assist a local attorney, Stephen Weinstein, to authenticate the authorization cards. Attorney Weinstein credibly testified that he was given the authorization cards from AFSCME on January 5, 1978, along with a list of employees which was cross-checked by a list supplied by the list entitled "Recommended Appropriate Bargaining Unit." (See Employer's Exhibit No. 9). Attorney Weinstein and Messrs. Jerry Brewer and Jerry Boltin, employees of Brewer and Associates, cross-checked the lists based on a random sampling of authorization cards from a total of 1,648 authorization cards supplied to attorney Weinstein by AFSCME. 3/ Attorney Weinstein and his associates noted no irregularities or discrepancies in the authorization cards given them by AFSCME which were checked against the employee signatures on file in the public employer's records. These records from which the signatures were taken included employment applications, insurance and payroll deduction forms. The evidence reveals that the expense connected with the authentication of the cards was paid independently by AFSCME. No evidence of any union bias or other interestedness was alleged to have existed on the part of the individuals engaged to authenticate the cards. A copy of the card was introduced which designates AFSCME as the executor's collective bargaining representative in all matters pertaining to rates of pay, hours, and other terms and conditions of employment. (AFSCME Exhibit #1). No evidence was introduced tending to show that any other cards were utilized by AFSCME in its organizational efforts.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120.57(1), Florida Statutes.

12. Based on the evidence that AFSCME proffered executed authorization cards which were authenticated totaling 1,637 cards of a total stipulated unit of 3,054 employees, I hereby conclude that AFSCME has demonstrated its majority status in the unit as stipulated to jointly by AFSCME and the Public Employer. However, in view of my finding and recommendation herein, infra, that regular part-time employees should be included within the jointly stipulated unit, I shall recommend that the Public Employer make available to AFSCME, upon request, which request shall be made within five (5) days after a determination has been made by the public Employer which adopts this recommendation, the names and addresses of all regular part-time employees that were excluded from the stipulated unit, and allow AFSCME fourteen (14) days from the date that such lists of employees' names and addresses are supplied, to establish its majority status in the modified recommended appropriate unit as found herein. See for example N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759.

    
    

13. Laborers International Union of North America and Amalgamated Transit Union Workers, Intervenors, have failed to demonstrate in any manner that they represent any of the employees for collective bargaining purposes, within the bargaining unit that was either jointly stipulated to or as modified herein in this recommended order.

    
    

14. AFSCME does not enjoy majority status in the recommended amended appropriate unit set forth herein in view of the fact that the total employee complement in this recommended unit approximates 3,570 employees and AFSCME tendered 1,637 executed authorization cards from employees within the jointly stipulated bargaining unit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the Public Employer submit a list of names and addresses of all of its regular part-time employees which comprised the 516 employees which were excluded from the joint stipulated recommended appropriate bargaining unit and allow AFSCME fourteen(14) days after receipt of such list to demonstrate its majority status. It is recommended that such majority status be demonstrated in the same manner as was demonstrated in the instant proceeding and that AFSCME and the Public Employer jointly engage a neutral third party to authenticate AFSCME's assertion of majority status within the time frame allotted.

Finally, upon proof of its majority status in the appropriate unit, as modified herein, it is recommended that the Public Employer voluntarily recognize AFSCME as the exclusive collective bargaining representative for such employees based on the foregoing findings, conclusions and recommendations.

RECOMMENDED this 6th day of March, 19788, in Tallahassee, Florida.

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

(904) 488-9675

ENDNOTES

1/ Unless otherwise noted, all dates are in 1977.

2/ To a lesser extent, the Intervenor objected to the inclusion or exclusion of those employees who were classified as registered nurses, and therefore were professional employees without any opportunity by them to express their desire in a self-determination election. However, inasmuch as the evidence revealed that the employer, does not require as a condition for employment, that such personnel be registered nurses, this issue was not pursued. No contrary evidence was presented by the Intervenor.

3/ In the private sector, this "spot check" procedure has been utilized in cases as here where the total employee complement exceeds 300 employees and has passed judicial scrutiny. See Section 11030.3 of the NLRB's Rules, Regulations and Statements of Procedure in Representation Proceedings (1968).

COPIES FURNISHED:

Ben R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida

John W. Bowen, Esquire Rowland, Petruska, and Bowen 30B North Magnolia Avenue Post Office Box 305 Orlando, Florida 32802

Richard R. Frank, Esquire Mark F. Kelly, Esquire

Law Offices of Richard H. Frank

341 Plant Avenue Tampa, Florida 33606

Docket for Case No: 77-002225

Orders for Case No: 77-002225