and ) DOAH CASE NO. 75-050
) PERC CASE NO. 8H-RC-756-1030
Public Employer. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Examiner, K.N. Ayers, held a public hearing on the above matter March 19, 1975, in Lakeland, Florida.
For Petitioner: John F. Laurent, Taylor & Laurent
For Respondent: James G. Brown, and Michael D. Malfitano Alley, Alley & Blue, Chartered
This hearing involved the petition of Lakeland Firefighters Association Local #2350, IAFF, AFL-CIO, hereinafter referred to as Petitioner for a Certificate of Representation as the representative of the Lakeland Fire Department employees for the purpose of collective bargaining with the City of Lakeland, hereinafter referred to as city or public employer.
Prior to the hearings, numerous motions were filed by the city, including a motion for a continuance received by the hearing officer two days prior to the scheduled hearing. The plethora of motions, including those filed during the hearings, are forwarded herewith to the Commission as are the proposed findings and briefs submitted. Generally, these motions present considerably more smoke than light. Since the vast majority of the motions, other than those relating to discovery, attack the adequacy of the petition, which was administratively determined by the Commission to be complete and in accordance with Chapter 447, Florida Statutes, before the case was referred to the Division of Administrative Hearings for the hearing that was held, further discussion of these motions will be limited. With respect to the numerous motions to dismiss, it is sufficient to say that no substantive evidence was submitted at the hearing which in any way impaired the efficacy of the affidavits admitted into evidence as Exhibits 2 and 3.
The substance of the motion for continuance of the hearing, above referred to, is characteristically representative of the numerous motions filed. The reasons for continuance given and hearing officer's comments are as follows:
FACT: Since all parties received actual notice of hearing, it is incomprehensible that grounds exist upon which complaint of lack of constructive notice can stand.
Upon the opening of the hearing and taking appearances of attorneys, the attorney for the Lakeland Civil Service Board entered an appearance and requested leave to intervene. After being granted the rights of an intervenor, the Board made a further request for a continuance upon the grounds that the attorney was notified only one day before the hearing to participate in the proceedings. After questioning the attorney regarding the governmental status of the Board, the hearing officer found that the Board is an agency of the City; therefore, as a matter of law, notice to the city constituted notice to the
Board. Accordingly, the request for a continuance based upon lack of notice of the hearing was denied. During the course of the hearing a member of the Board testified that the Board was aware of the hearing at least two weeks prior to the date held.
The city would not stipulate that it was a public employer as defined by Section 447.002(2), "Florida Statutes, or that petitioner was an employee organization as defined by Section 447.02(10) Florida Statutes. With respect to the former, the hearing officer takes official notice that the City of Lakeland is a municipal corporation with the basic authority of all municipal corporations in Florida, i.e., it has power to tax, pass and enforce ordinances, appropriate funds, hire people to provide services to the residents of the city and perform those functions normally performed by cities. The city appeared to vacillate on the proposition that the Civil Service Board, instead of the city, might be the public employer in this situation. However, subsequent testimony revealed that the Board has no power to expend funds other than those authorized by the city, or to order into effect a pay raise unless the funds to provide such a raise had previously been authorized and approved by the City Commission.
The hearing officer also takes official notice of Section 112.191, Florida Statutes, relating to death benefits for firemen which states:
"[Tlhe word 'employer' means a state board, commission, department, division, bureau or agency, or a county, municipality or special district."
From the foregoing the hearing officer concludes that the city is a public employer as defined in Section 447.002(2), Florida Statutes.
With respect to an employee organization as defined in Section 447.002(10), Florida Statutes, testimony was received that Local 2350 is a labor organization and represents or seeks to represent public employees concerning matters relating to their employment relations with the City of Lakeland. Accordingly, the hearing officer concludes that the petitioner is an employee organization as defined in section 447.002(10), Florida Statutes.
The city called ten witnesses, nine of whom were from the police force, and the tenth a member of the Civil Service Board. The latter's testimony clearly demonstrated that the Board is not a public employer.
Although a considerable amount of time was expended in attacking the registration of petitioner with the Commission as an employee organization, no evidence was presented not known to the Commission at the time Exhibit 3 was executed with one possible exception. That was the fact that a revision of the International Association of Firefighters, AFL-CIO, Constitution and By-Laws had been received by petitioner subsequent to his filing the petition and had not been forwarded to PERC. The only difference between the revised edition and its predecessor known to the president of Local 2590 was that the covers had different colors. However, even if substantial changes in the Constitution and By-Laws of IAFF had been made, it is difficult to see how this could have affected the registration.
One captain, five lieutenants, and one driver-engineer were called by the City in an attempt to establish collusion, coercion, intimidation or
misrepresentation in obtaining the signature cards. Absolutely no evidence discrediting the validity of the cards was produced.
Ultimately, evidence was received relative to unit determination. Both parties stipulated that all combat, full-time firefighters below the rank of lieutenant were properly included in the unit and that only firefighting personnel, excluding clerical personnel, dispatchers, and maintenance personnel would be included. There was disagreement regarding the inclusion of lieutenants, captains, deputy chiefs, fire marshals, fire inspectors, fire alarm maintenance superintendents and training officers in the unit, with the petitioner taking the position that they should be included. All parties stipulated that the Fire Chief should be excluded from the unit. Evidence presented regarding these contested positions will be discussed in the descending order of rank in the fire department.
The Lakeland Fire Department is organized on quasi-military lines with the forces organized into one combat division comprised of three combat platoons. The three deputy chiefs each command one platoon. They stand 24-hour shifts at the main fire station and are then off for 48 hours. During the time on duty, the Deputy Chief makes all decisions affecting the department when the chief is unavailable. They have authority to transfer personnel from one station to another; they evaluate captains and approve evaluations on lower personnel, make effective recommendations regarding the discharge of employees, promotions, etc. These duties are more fully contained in Exhibit 20.
The Fire Marshal carries the same rank as Deputy Chief. He is responsible for fire prevention, arson investigation and fire code enforcement. His is the basic responsibility for modifications of the fire code to keep up with changes in conditions, and he is the senior city official involved in enforcement and application of the fire code. Most of his work requires independent judgement and decision making. He establishes policies applicable throughout the fire department. He is assisted by two fire inspectors and makes effective recommendations respecting their pay, promotion, transfer, etc.
The two fire inspectors perform many of the functions assigned to the fire marshal and in carrying out their inspections make recommendations that are effective in changing policies, rules and regulations applicable throughout the department. One of the inspectors carries the rank of captain and the other the rank of lieutenant. If assigned to duties other than inspections, e.g., as a member of a combat team in an emergency, they would be expected to exercise the authority and responsibilities associated with their rank. These duties are more fully contained in Exhibit 19.
Captains stand their 24-hour watches at the main fire station with the Deputy Chiefs. In addition to having some responsibilities affecting the entire platoon's readiness posture, captains are in charge of one of the engine companies at the main station. As such they prepare efficiency reports on personnel under them which affects promotions, transfers and assignments.
During the absence of the Deputy Chief they are in command of the fire station and make required managerial decisions. During fire fighting operations, as officer in charge of their companies, they are called upon to make decisions subjecting personnel under them to situations of great physical peril. The duties of captains are more fully described in Exhibits 14 and 21.
The Fire Alarm Maintenance Supervisor (FAMS) is recognized in the captain's category. He is not an integral part of the combat force which is engaged in fighting fires but has the minimum training required to be used in
such capacity if needed. He generally works independently with occasional help assigned to him from the combat platoon. He is responsible for the maintenance of various fire alarms throughout the city and has the basic responsibility for determining where these alarms shall be installed. The FAMS reports directly to the Fire Chief, and the nature of his duties require that he make an independent valuation and judgement decision on practically every problem with which he is confronted. The duties and responsibilities of the FAMS are more fully contained in Exhibit 16.
The training officer holds the rank of captain. He has the responsibility of training all fire department personnel in the basic requirements of firefighters and in preparing continuing training schedules to maintain and upgrade these capabilities. In carrying out these duties, he is required to submit reports on the personnel undergoing training which can effect their promotion and retention. In developing training programs and procedures, he effectively formulates policies having direct impact throughout the fire department. The training officer reports directly to the chief. The duties and responsibilities of the training officer are more fully set out in Exhibit 17.
Lieutenants are the lowest rank in the officer category in the Lakeland Fire Department whose inclusion in an appropriate bargaining unit is proposed by Petitioner. There are 15 lieutenants and they command the companies not commanded by captains at the main station as well as being in charge of the three outlying stations. They prepare efficiency reports on the people in their company and make effective recommendations regarding personnel actions which affect the promotion, discipline, and salaries of these personnel. As the officer in charge of a combat company engaged in fighting a fire, the lieutenant perforce has the responsibility for making the operational decision on how to employ his company in fighting a particular fire. While there are procedures developed during training programs designed to acquaint these officers with proven solutions to many problems they are likely to encounter, the final decision on which particular solution is most appropriate for the situation at hand ultimately is determined by the exercise of the independent judgment of the officer in charge at the scene. In exercising this judgment, the lieutenant will in many situations have the responsibility for detaching one or more of his company to a firefighting task involving high risk of physical injury. The duties of the lieutenants are more fully described in Exhibits 18 and 22.
With respect to all of these disputed categories, they have several common denominators with all combat fire fighters. All stand duties on a 24 hour on - 48 hour off basis; all sleep and eat at the fire station to which they are assigned; and all are covered by the existing Civil Service System adopted by the city. In carrying out their fire fighting assignments they share, in company with all other combat personnel in the platoon, the rigors and dangers with which their profession is afflicted.
CONCLUSIONS OF LAW
In making the determination as to whether or not the fire department personnel here in question should be included in the appropriate bargaining unit (or excluded therefrom), the decision does not need to be made on whether each rank questioned is managerial as defined by Section 447.002(4), Florida Statutes. Their exclusion from the proposed bargaining unit could equally rest upon a determination that their participation would create a conflict of interest with their job responsibilities. See Section 447.009(4)(c), Florida Statutes. However, a discussion of "managerial employees" appears to be in order.
Chapter 447, Florida Statutes, is the initial legislation in this state respecting the right of public employees to organize and to bargain collectively. Accordingly, it may be said that there is no legislative history to light our path in interpreting and applying the provisions of Chapter 447. However, Art. I, Section 6, of the Declaration of Rights of the Florida Constitution provides:
"The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged Public employees shall not have the right to strike"
In Dade County Classroom Teachers Association, Inc. v. Ryan, 225 So.2d 903 (1969) the Florida Supreme Court held:
"With the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6."
In quoting Section 6, in the opinion, the Court emphasized the word "employee" in both places it appears. It should be noted that the right to work, in Section 6, applies to the broad category of "persons"; while the right to bargain collectively applies to "employees".
Subsequently, in Dade County Classroom Teachers Association Inc. v. Legislature 269 So.2d 684 (1972) the Supreme Court denied the petition for a writ of mandamus to compel the Legislature to enact guidelines for public employee's collective bargaining, but held, regarding the Constitutional right of public employees to bargain collectively,
"when the people have spoken through their organic law concerning their basic rights, it is primarily the duty of the legislative body to provide the ways and means of en- forcing such rights; however, in the absence of appropriate legislative action, it is the responsibility of the courts to do so."
The Court went on to state that it was confident the Legislature would enact appropriate guidelines in this area, but
"If not, this Court will, in an appropriate case, have no choice but to fashion such guidelines by judicial decree in such manner as may seem to the Court best adapted to meet the requirements of the constitution, and comply with our responsibility."
A rehearing was denied December 19, 1972, and the 1974 Legislature enacted Chapter 447.
With the Court ascribing the same rights to public employees that are enjoyed by private employees it would not be unreasonable to assume that the Legislature intended the word "employee" in Chapter 447 to have the same meaning the word has in the National Labor Relations Act as it has been interpreted by the NLRB and the Courts. A close persual of Chapter 447 has evinced no contrary intent.
While acknowledging the similarity that exists between Chapter 447 and federal legislation affecting the private sector, we must also recognize the inherent differences in motivation between those managerial personnel representing the private employer and those representing the public employer. Public employers do not personally profit from low wages and benefits and inferior working conditions; nor do they necessarily suffer from increased wages and benefits. In the public sector an inappropriate unit determination will not necessarily create immediate problems for the public employer, and consequently, his self interest might not dictate an objection to such units if they are requested by the employee organization. But inappropriate unit determinations, while they might not have an immediate adverse impact on the employer, can create havoc within a given governmental unit, ultimately costing the taxpaying public serious losses in funds and services. 1 FSU L. Rev. 26,68. (1973).
If the word "employees" as used in Chapter 447, Florida Statutes has a similar meaning it has in federal labor legislation, we should look to the history of the federal development of appropriate bargaining units in the private seetor while keeping in mind the inherent differences between the private and public sectors in this field.
From the advent of the Wagner Act, 49 Stat. 449, and absent mention therein of managerial types, the NLRB and the courts recognized the inherent differences and the need for balance between management and labor. In unit determinations both the Board and the courts uniformly held that "managerial employees" were not to be included in a unit with rank and file employees. The Board summarized its policy on "managerial employees" in Ford Motor Co., 66 NLRB 1317, 1322 (1946) as follows:
We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine and effectuate management policies. These employees we have considered and still deem to be 'managerial' in that they express and make operative the decisions of manage- ment.
As noted in NLRB v. Bell Aerospace Company Division of Textron, Inc.
U.S. , 40 L.Ed. 2d 134, 144 (1974), in the mid 1940's, the Board began to vacillate with respect to the related but narrower category of "supervisory employees," and this led to the decision in Packard Motor Co., 61 NLRB 4, 64 NLRB 1212 (1945) where the Board held that foremen could constitute an appropriate unit for collective bargaining. The Board's position was upheld in Packard Co. v. Labor Board, 330 U.S. 485 (1947). The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136, wherein Congress provided for the exclusion of supervisors from the protection of the Act. No mention was made of managerial employees in the Act, but the conference report clearly indicated that the long established practice of the Board in treating certain employees as outside the Act should be continued.
Bell, supra. The Report also makes evident that Congress was concerned with
more than just the possibility of a conflict of interest in labor relations if supervisors were unionized:
Supervisors are management people. They have distinguished themselves in their work. They have demonstrated their ability to take care of themselves without depending upon the pressure of collective action. No one forced them to become supervisors. They abandoned the 'collective security' of the rank and file voluntarily, because they believed the opportunities thus opened to them to be more valuable to them than such 'security'. It seems wrong, and it is wrong, to subject people of this kind, who have demonstrated their initiative, their ambition and their ability to get ahead, to the leveling pro- cesses of seniority, uniformity and standard- ization that the Supreme Court recognizes as being fundamental principles of unionism. (J.I. Case Co. v. National Labor Relations Board, 321 US 332, 88 L Ed 762, 64 S Ct 576
(1944). It is wrong for the foremen, for it discourages those best qualified to get ahead, it is wrong for industry, and particularly
for the future strength and productivity of our country. Bell, supra. n. 11, p. 47.
The Taft-Hartley Act defines "supervisor" to mean:
Any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the fore- going the exercise of such authority is not of a merely routine or clerical nature but required the use of independent judgment.
29 USC 152(11)
These attributes of authority relate directly to personnel administration and direction and to the authority of some people over others in their working relationships.
Section 447.002(4), Florida Statutes, defines managerial employees as: those employees generally having authority
in the interest of the public employer who
formulate policy which is applicable throughout the bargaining unit, or (b) may reasonably be required on behalf of the employer to assist directly in the prep- aration for and conduct of collective bar- gaining negotiations or to have a major role in the administration of agreements resulting
therefrom, or (c) have a-significant role in personnel administration or in employee rela- tions, and in the preparation and admini- stration of budgets for any public agency or institution or subdivision thereof, provided that said roles are not of a routine, cleri- cal or ministerial nature and require the exercise of independent judgment. In deter- mining whether the individual is a managerial employee the Commission shall consider the historic relationship of the employee to the public employer and to co-employees.
With respect to subsection (c) above, it is submitted that the first part of this subsection is a general description of the more specific descriptions of supervisor above quoted from 29 USC 152. However, the latter- part of subsection (c) is in the conjunctive and appears to require the individual involved to further have a significant role in the preparation of budgets. It is not conceivable that the legislature intended to remove a personnel administrator from the management team if he is not also responsible for budget preparation. A cardinal rule in statutory construction is to accord the words of the statute their normally accepted meaning. However, if such a reading leads to an inconsistency or to an illogical result, then the words are to be given a reasonable interpretation to carry out the obvious intent of the legislature. To hold that a personnel administrator who maintains the personnel records upon which the promotion, dismissal and other personnel administrative actions are taken is not managerial because he is not also responsible for the preparation of budgets flies in the fact of reason and logic. Since these two functions are wholly unrelated, I find that the statute does not require the public employee to perform both of these functions in order to be classified as managerial but may be so classified if he performs either.
It is submitted that in adopting Section 447.002(4), Florida Statutes, the legislature intended and this section so provides that "managerial employees" includes those "supervisory employees" as defined in 29 USC Section 152(11); employees who may be involved in bargaining procedures and who are defined as "confidential employees" in 29 USC Section 152; and those public employees who traditionally have been classified in the higher echelons of supervisory employees and denominated "managerial" by NLRB and federal court decisions.
This conclusion is further supported by the ultimate sentence in Section 447.002(4) that consideration be given to the historic relationship of the employee to the public employer and to co-employees. Again reference to private sector employer-employee relations is helpful. If he possesses the authority to exercise his discretion in making commitments on behalf of the employer, he is managerial. Spicer Mfg. Corp., 55 NLRB 1441 (1946). Those whose interests and functions are sufficiently akin to management are to be excluded from any unit. Yale and Towne Mfg. Co., 60 NLRB 26 (1945). The rationale of Mr. Justice Douglas dissent in Packard, supra, was evidently considered by Congress to be correct and to reflect the prevailing concept when he stated:
I do not believe this is an exaggerated statement of the basic policy decisions which underlie the present decision. For if foremen are 'employees' within the meaning of
the National Labor Relations Act, so are vice- presidents, managers, assistant managers, superintendents, assistant superintendents
--indeed all who are on the payroll of the company, including the president; all who are commonly referred to as management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presi- dents, managers, superintendents, foremen are all unionized, management and labor will become more of a solid phalanx than separate factions in warring camps.
One further distinction between the private and public sectors should be noted. In the private sector, job security has been gained by organizing and collective bargaining whereas in the public sector, job security has been provided by the legislative body generally through a public service system. In the instant case the firemen are protected from arbitrary personnel actions by the Lakeland Civil Service Board. Providing for an appeal to the Board does not really detract from the authority of the officers in the Lakeland Police Force to exercise disciplinary control over the personnel under them; it only curtails arbitrary and unreasonable exercise of this authority.
Even if the disputed categories are found not to be managerial as defined by Section 447.02(4), Florida Statutes, there remains the question initially noted regarding a possible conflict with their duties to the public and to the public employer which would be incompatible with their inclusion in the proposed bargaining unit. Inasmuch as the lieutenants, as well as all higher ranks, have certain disciplinary and effective personnel recommendations that could affect the pay, transfer, dismissal, etc. of those firemen over which they have this power to make effective recommendations, it would appear inappropriate to place them in the same unit as the rank and file firemen.
In accordance with Section 447.009(3)(a), no recommendations are submitted. DONE and ENTERED this 13th day of May, 1975.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
John F. Laurent, Esquire Taylor & Laurent
P.O. Box 915, Lakeland, Florida 33802 For the Petitioner
James G. Brown, Esquire & Michael D. Malfitano, Esquire Alley, Alley & Blue, Chartered
P.O. Box 1427
