STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS AMERICAN FEDERATION OF ) TEACHERS, )

)

Petitioner, )

)

vs. )

) SCHOOL BOARD OF PINELLAS COUNTY, ) FLORIDA, )

)

Respondent. )

) CASE NO. 75-1043 PINELLAS CLASSROOM TEACHERS )

ASSOCIATION, )

)

Petitioner, )

)

vs. )

) SCHOOL BOARD OF PINELLAS COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled causes were jointly heard before Diane

D. Tremor, Hearing Officer, Division of Administrative Hearings, at the fifth floor assembly room of the Pinellas County Courthouse, Clearwater, Florida, commencing at 9:30 A.M. on September 18, 1975, and continuing on September 19, 1975.

APPEARANCES

For Respondent: B. Edwin Johnson, Esquire

1960 East Druid Road Clearwater, Florida 33516

For Petitioner: Ronald G. Meyer, Esquire (Teachers FRANK & MEYER, P.A.

Association) Suite 500, Flagship Bank Building

Tampa, Florida 33602

For Petitioner: Lawrence A. Poltrock, Esquire (American LIGTENBERG, DEJONG & POLTROCK

Federation of 134 North La Salle Street, Room 1100 Teachers) Chicago, Illinois 60602

Mr. Paul M. Bostrom

6535 Park Boulevard

Pinellas Park, Florida 33565

Mr. C. Howard Hursey

National Respresentative of AFT, AFL-CIO 9628 Ridge Heights Road

Fairview Heights, Illinois

This hearing involved the petition, as amended, of the Pinellas American Federation of Teachers (AFT) and the petition of the Pinellas Classroom Teachers Association, Inc. (CTA), for Certificates of Representation as the exclusive bargaining agent of certain employees of the Pinellas County School Board. In asmuch as both petitioners seek to represent substantially the same bargaining unit, it was determined that the two petitions should be jointly heard.

During an approximately three hour long prehearing conference, certain stipulations were reached, motions were presented and it was stipulated that certain exhibits would be received into evidence. These matters appear in the transcript and include the following: It was stipulated that the Pinellas County School Board is a public employer within the meaning of F.S. s.

447.203(2); that both petitioners are employee organizations within the meaning of s. 447.203(10); that there is no contractual bar to holding an election; and that both the AFT and the CTA are properly registered with the Public Employees Relations Commission. This last stipulation was later withdrawn by the CTA and the School Board with regard to the registration of the AFT. A stipulation as to the proper unit designation could not be reached. Throughout these proceedings, both the CTA and the School Board stipulated that, at least for the purposes of a consent election agreement, the unit as set forth in the AFT's petition, as amended, is a unit appropriate for collective bargaining. The AFT refused to so stipulate, and did not wish to further amend its petition so as to reflect a unit to which the AFT would stipulate.

A list of the exhibits received into evidence is attached to this report as Attachment A.

Numerous motions were made during the hearing of this cause. The AFT orally moved to intervene in the petition of the CTA. This motion was granted with the AFT agreeing that a written motion would be filed. The AFT moved to strike both the CTA's motion to intervene and the order granting intervention for the reasons set forth in its letter dated September 17, 1975 to the Commission. The primary ground appears to be that the CTA failed to illustrate a 10 percent showing of interest, nor did the CTA show that it was the recognized bargaining agent (see Exhibit No. 14, with attachments). The motion to strike was denied, the hearing officer having previously received into evidence without objection the "affidavit of compliance for required showing of interest" with regard to the petition for Certification filed by the CTA (Exhibit No. 7). The School Board moved to strike or dismiss the AFT's amendment to their petition (Exhibit No. 2) on the grounds that such filing of an amendment had not received the consent of the Chairman or his agent, as required by F.A.C. Rule 8H-3.14. This motion was denied by the undersigned on the grounds that even if the Chairman has not consented to the amendment, the hearing officer has the authority, under said Rule to accept amendments during the hearing. Near the end of the hearing, Mr. Paul Bostrom testified that Mr. Curtis Mack orally gave him leave to file the amended petition. The School Board further moved to dismiss the original petition filed by the AFT on the ground that the requisite showing of interest was not made. This motion was denied on the basis of the "affidavit of compliance for required showing of

interest" with regard to the Petition for Certification filed by the AFT (Exhibit No. 4). The School Board then made an oral motion for an investigation by the Commission concerning the AFT'S showing of interest.

In order to ascertain the position of the parties prior to the taking of testimony, the hearing officer read from the amended petition of the AFT and inquired of the AFT if that was a correct statement of the unit proposed. Upon an affirmative response from Mr. Bostrom, the President of the Pinellas AFT, the CTA stipulated to the appropriateness of the unit described in the amended AFT petition and offered Exhibits 9a and 9b as the necessary back up materials to support the stipulation. Exhibit 9a contains the description of those positions to be included in the unit and Exhibit 9b contains the descriptions of those positions to be excluded from the unit. The School Board, although noting that it would like to expand the unit, stipulated to the appropriateness of the unit contained in the AFT amended petition in order that an election order could be obtained. However, the AFT refused to so stipulate. It agreed to the job description but not to the functions of those persons holding such positions.

The AFT also expressed its concern over the discrepancies between Exhibits 9a and b and the list described in Exhibit 10, in that there were in excess of 15 job descriptions in Exhibit 10 that had no descriptive functions in Exhibit 9. The Board expressed its willingness to strike those names from the list and the CTA suggested that questions concerning those persons or positions could be resolved by challenging their vote at election time. This discussion ended with a statement by the AFT that the job descriptions set forth in its amended petition would be appropriate for purposes of a unit determination, but that evidence would be needed as to the functions of some individuals.

After opening statements were made, the CTA moved to strike and dismiss the intervention of the AFT on the ground that the AFT's unwillingness to abide by their own proposed unit constitutes a de facto withdrawal of their petition.

The Hearing Officer reserved ruling on the motion and refers the motion to the Commission.

The CTA then presented as witnesses Mr. Stanley Moore, Associate Superintendent of Education, and Mr. Jade Moore, Executive Director of the Pinellas CTA, whose testimony will be summarized below. During the presentation of testimony by Mr. Stanley Moore, the CTA, without withdrawing its willingness to enter a stipulation to the unit as proposed in the AFT petitions, moved to amend its petition so as to include the positions of curriculum assistants, curriculum coordinators, psychologists, learning disability specialists and social workers within the bargaining unit. The motion to amend was granted by the Hearing Officer. After cross-examination, the CTA rested its case.

At this time, the Hearing Officer asked the AFT to state for the record exactly who or what the AFT wants or proposes with respect to a bargaining unit. The purpose for this question was that the Hearing Officer felt that the record was almost complete with respect to this issue, and the AFT was asked what further evidence it intended to introduce to help the Commission make its determination. A short recess was taken and the School Board announced that it had no further evidence to go into this record. The AFT announced that its position for the record as to the appropriate unit would be as set forth in its amended petition, subject to the Commission's ruling and decisions based upon the record of this hearing. The CTA again stipulated to said AFT unit for the purposes of a consent election, but suggested that the evidence adduced at the hearing would disclose a different unit. That unit would include all instructional personnel holding valid State of Florida teaching certificates, Rank III or above, and under contract to the School Board, excluding the

superintendent, associate superintendent, assistant superintendents, attendance officers, principals, deans, registrars, directors, supervisors, substitutes, assistant principals, associate directors, assistant directors and all other managerial or confidential employees as defined by the PERA. The School Board announced that it would stipulate to the AFT unit for the purposes of a consent election agreement only. In the absence of such an agreement, it was the school Board's position that an appropriate unit would consist of those listed in the AFT amended petition, as well as curriculum specialists, curriculum development people, psychologists, learning disability specialists, consultants and coordinators. According to the School Board, the following should be excluded: principals, deans, registrars, social workers, attendance officers, members of the administrative and supervisory staff, supporting services personnel, substitute teachers and part-time instructional personnel.

At this time, after the representation of each of the parties that the record was complete with the exception of bargaining history on the part of the AFT, the AFT presented the testimony of Mr. Bostrum with regard to recognition history, which testimony will be summarized below. With reference to the testimony of Mr. Bostrum, the CTA moved to dismiss the petition of the AFT on the ground that the AFT was not properly registered with PERC, apparently due to the omission of its local number. The School Board also moved to dismiss or strike the AFT's petition and amendment on the grounds that the AFT is not a legal entity under the laws of Florida either as a corporation or under the fictitious name statute. Both these motions are referred to the Commission for disposition.

Finally, two further motions were made. The AFT moved to strike the petition of the CTA on the same grounds filed by the CTA and the School Board in support of their motions to strike the AFT petition. The Hearing Officer reminded the AFT of the number of motions filed thus far in this proceeding and asked the AFT to state, with specificity, the grounds for its motion. Stating only that a showing of interest had not been made, the motion was denied. The CTA moved, pursuant to F.A.C. Rule 8H-3.29, that the costs of conducting the election be taxed upon the AFT for the reason that the AFT's action has obstructed and prohibited an orderly election process from being carried out. A ruling on this motion is also referred to the Commission.

In summary, in addition to a review of the rulings of the Hearing Officer made during the course of this hearing, the following motions are referred to the Commission for disposition:

1. the School Board's motion to PERC for an investigation of the requisite showing of interest in connection with the AFT petition (T., Vol. I, p. 36);

   
   

2. the CTA's motion to strike and dismiss the intervention of the AFT (T., Vol. II, p. 13);

   
   

3. the CTA's motion to dismiss or strike the petition of the AFT (T., Vol. II, pp. 194-197);

   
   

4. the School Board's motion to dismiss the petition of the AFT (T., Vol.

   II, p. 205); and

   
   

5. the CTA's motion that the costs of an election be taxed upon the AFT (T. Vol. II pp. 205,206).

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following facts are found:

1. With respect to an appropriate bargaining unit:

   
   

   1. Employees of the Pinellas County School system are classified into three categories for pay purposes. These classifications are for

      
      

      1. non-instructional or support persons,

      2. administrative persons, and

      3. instructional persons.

      
      

      The instructional classification or teacher salary schedule is reflected in a document entitled Pinellas County School Board Instructional Lists by Job Code, which was received into evidence as Exhibit No. 10 and contains approximately 5,200 persons. Members of the administrative and supervisory staff do not appear on this list, nor do supporting services personnel. Principals, deans, registrars and substitute teachers do not appear on this list. Curriculum specialists and coordinators, social workers, psychologists, learning disability specialists and attendance officers do appear on this list.

      
      

   2. Exhibit No. 16 depicts the organization of administration of the Pinellas County School system as it presently exists. Principals would appear on this organizational chart in the place marked "x" on Exhibit No. 16 in the box labeled local schools. All personnel above that level effectively recommend the hiring and firing of employees, direct other Employees, are paid on the administrative salary schedule, and participate in the preparation of budgets, the adjustment of grievances and in the process of collective bargaining. A stipulation that all persons depicted on this chart above the level of principals (whom are not depicted, but would appear at the local school levels) be excluded from the bargaining unit could not be reached.

      
      

   3. The following persons or classifications effectively participate in the preparation of the budget, have the ability to hire and fire or effectively recommend hiring and firing and are paid on the administrative salary schedule: the Superintendent, the associate Superintendent and assistant Superintendents. The School Board, CTA & AFT all stipulated that these three positions should be excluded from the bargaining unit.

      
      

   4. Attendance officers are included on the instructional, teacher's salary list, but they do not hold teaching certificates. They report to the administrative assistant to the associate superintendent and work out of the central administrative offices. It was stipulated by all the parties that attendance officers would not be appropriate in a bargaining unit.

      
      

   5. Principals and deans effectively recommend the hiring and firing of other employees, participate in the preparation of the budget and in the adjustment of employee grievances and are paid on the administrative salary schedule. It was stipulated that principals and deans should be excluded.

      
      

   6. The duties and functions of assistant principals are essentially the same as those of principal in the principal's absence. They are certificated, but generally not do classroom teaching. They participate in the formulation of the school budget and in the disposition of employee grievances. They

      effectively recommend the hiring, firing or disciplinary actions of employees, evaluate employees and are paid according to the administrative salary level. Not every school has an assistant principal. The elementary schools generally do not have one, unless they are on double session. Assistant principals are approved by the School Board, as is anyone who is on a supplement. No stipulation was reached as to assistant principals.

      
      

   7. Registrars participate in budgeting, are paid on the administrative salary schedule and come in contact with confidential material from time to time. They do have an office in the school, have daily contacts with students, receive essentially the same fringe benefits as classroom teachers. They do not have the authority to direct other teachers or employees in the performance of duties. By reason of their confidential status, it was stipulated by all the parties that registrars be excluded from the unit.

      
      

   8. The Pinellas County school system hires persons known as directors, associate directors and assistant directors. In a vocational program or center, the principal is known as the director and the assistant principal is also called an assistant director. Also there is a director of the budget and other types of directors. There are now approximately 50 directors, 2 or 3 assistant directors and no associate directors. They are paid on the administrative pay scale, have supervisory functions, assist in the preparation of the budget and in the collective bargaining process, deal with confidential materials, supervise employees and recommend hiring, firing or discipline and adjust employee grievances. They are generally at the county level and not the school level. It was stipulated that directors should be excluded from the bargaining unit, but no stipulation was reached with respect to assistant and associate directors.

      
      

   9. Supervisors are generally curriculum persons who supervise the formulation of the curriculum and supervise the teacher in working with the curriculum. They are paid pursuant to the administrative salary schedule, work out of the central office, evaluate other employees and effectively recommend hiring, firing or discipline, prepare and handle confidential materials and participate in both budgetary policies and the processes leading to collective bargaining. It was stipulated by all parties that supervisors should be excluded.

      
      

   10. Activity directors work in the schools, but do not teach classes.

       They are more of a business management type of person. They schedule activities and events, handle ticket or club monies, and hire teachers as ticket sellers at events. While they have occasion to work in the preparation of the budget for their particular school, they do not evaluate other employees, do not assist in the adjustment of Employee grievances, do not effectively recommend the hiring, firing or discipline of other employees and do not handle or prepare confidential records. They are on the instructional salary schedule. While they are not required to hold a teaching certificate, almost all do, and they are on ten-month contracts. No stipulation was reached as to the inclusion or exclusion of activities directors.

       
       

   11. Curriculum assistants, curriculum coordinators psychologists learning disabilities specialists and social workers are all regular, full-time instructional personnel and are listed on the instructional salary schedule, are not paid for vacations and do not accrue vacation time, have no power or control over budgeting and do not hire, fire or promote. In the same manner as classroom teachers, they earn sick leave, receive group health insurance, have the same retirement benefits and pay increases, have pupil contact and are

       certified employees. All are located within the schools, with the exception of psychologists and social workers, who are not assigned to a specific school, but work out of the county office.

       
       

   12. There is a classification known as specialist. There are approximately twelve persons in this classification such as a computer specialists and they are paid pursuant to the administrative salary schedule.

       If they perform supervisory and/or managerial functions, it would generally be over service personnel rather than instructional personnel. However, there is a group of specialists who fall within a category of a federal program which is in contact with students. No stipulation was reached as to this classification.

       
       

   13. In addition to curriculum coordinators, there is a classification known as coordinators. Some are purely classroom teachers such as a diversified education coordinator. Coordinators work predominantly in the schools with children and are paid on the instructional salary schedule. There are approximately 75 coordinators, and they receive the same paid holidays, the same group health insurance, the same retirement benefits and earn sick leave the same as classroom teachers. These people are required to hold a teaching certificate, although there may be one or two who do not. Most are in the vocational field. They do not supervise other employees nor do they have the ability to effectively recommend hiring or firing of other personnel. They have no power to establish a budget. No stipulation was reached on this position, or any of the remaining positions which follow. 1/

       
       

   14. There is also a vocational teacher coordinator. The person occupying this classification teaches students in class and then coordinates their work outside of class and sees to it that students obtain jobs. They are generally assigned to a school and report directly to the principal of that school. They have no budgetary functions and they do not evaluate other teachers. They are usually certified.

       
       

   15. Also, there is a classification known as health coordinator. Most are certified and they work primarily with students. They coordinate the various phases of the health programs in the school to which they are assigned. They are on the instructional pay scale, have no power to make budgetary determinations and do not supervise instructional personnel.

       
       

   16. There are also secondary education coordinators who deal with the vocational aspects of a school. They work with students, receive regular retirement benefits and do not evaluate other teachers.

       
       

   17. There is one person involved in a classification known as RESRVOL. This is a federal program pertaining to the recruiting of adult volunteers to help senior citizens. While she is on the instructional payroll, she does not teach and she is not certificated.

       
       

   18. On the instructional payroll, there is a classification known as self- renewal. This too is a federal program comprising about four persons. While certification is not required, all who occupy the position are certified. Their function is to deal with children who have lost confidence in themselves and attempt to restore self-confidence. They receive the same emoluments as a classroom teacher and are not involved in the evaluative process of other teachers. They are not assigned to any particular school, but work out of a county office. This description would also fit a Position known as educational self-renewal.

   19. Enhanced learning personnel supplement the classroom teachers with respect to teaching the gifted child. They do not evaluate other teachers nor do they have any role in the budgetary Process. Some are permanently assigned to a school and others are on a county-wide basis. Their emoluments with respect to retirement, sick leave and vacation are the sane as classroom teachers.

       
       

   20. A curriculum assistant helping a kindergarten teacher exists on the instructional salary list. Only one person is involved. This person does evaluate teachers, has no classroom duties and is involved in the budgetary process. She reports to the supervisor of kindergarten and receives the same emoluments as classroom teachers with respect to retirement, sick leave and pay and vacations. Other helping teachers do exist and the positions are supervisory, supportive type positions. They evaluate teachers and report to their supervisors.

       
       

   21. A junior high school work experience teacher teaches children and finds them jobs outside of school. They do not coordinate teachers and they receive the same emoluments as a classroom teacher with respect to retirement, sick leave and vacation.

       
       

   22. An adult home economics teacher teaches post high school students in the evenings. They do not evaluate other teachers and report to their supervisor in the evening program.

       
       

   23. Substitute teachers are hired and paid on a daily basis. They are not required to be certified. However, there is a distinction between a short-term and a long-term substitute teacher. The long-term substitute takes a regular teacher's place over a long period of time. After the first ten days, the long term substitute is allowed to go on a teacher's contract (whatever contract they would be eligible for were they a regular teacher) for the period of time they are going to be substituting, if it is determined that the period of substitution will be extended. It was not determined whether long-term substitutes go on the same instructional list as Exhibit No. 10, but no long- term substitutes are now on said list due to the recent opening of school. They do not participate in the same retirement or receive the same insurance that a classroom teacher does.

       
       

   24. While several other positions were discussed, there were no other employees who were in the list of instructional personnel (excluding personnel heretofore discussed) who have the ability to effectively recommend the hiring or firing of other employees, who participate in the adjustment of Employee grievances or evaluate other employees, or who work in the preparation of the budget. All remaining positions receive their pay on the same day, earn sick leave in the same fashion, participate in the same group insurance and retirement benefits as regular classroom teachers and are required by the School Board to be certified.

       
       

   25. With respect to requests for recognition and bargaining history:

       
       

       1. Pursuant to local legislation enacted in 1971 granting to instructional personnel employed by the School Board the right to bargain collectively, the CTA has engaged in collective bargaining with the School Board. The first contract was ratified in

          September of 1971. The last contract expired

          on August 1, 1975. The 5,018 employees covered by this latter contract included counselors,

          librarians, classroom teachers, media specialists, special education teachers, vocational teachers, curriculum coordinators, psychologists, social workers and other employees of the public

          schools having whole or in part classroom teaching duties. This is essentially the same group listed in Exhibit 10.

          1. The CTA made a formal request for voluntary recognition by the School Board on April 30, 1975. Certain events (unfair labor practice charges and the filing of RC petitions) then ensued, which events are well known and are on

             file with the Public Employees Relations Commission.

             
             

       2. On or about April 24, 1975, the AFT requested, by letter, the School Board to officially recognize the AFT for the rights to bargain collectively with the School Board for the teachers.

          
          

   26. As noted above in the Introduction, the parties agreed that the School Board is a public employer; that both petitioners are employee organizations, and that there is no contractual bar to the holding of an election.

   
   

   In accordance with F.S. s. 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted.

   
   

   DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida.

   
   

   DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

   (904) 488-9675

   
   

   ENDNOTE

   
   

   1/ To clarify the stipulations with regard to unit appropriateness, stipulations were reached only with regard to the exclusion of the following positions: superintendent, associate superintendent, assistant superintendents, attendance officers, principals, deans, registrars, directors and supervisors.

   
   

   COPIES FURNISHED:

   
   

2. Edwin Johnson, Esquire 1960 East Druid Road Clearwater, Florida 33516

Ronald G. Meyer, Esquire FRANK & MEYER, P.A.

Suite 500, Flagship Bank Building Tampa, Florida 33602

Lawrence A. Poltrock, Esquire LIGTENBERG, DEJONG & POLTROCK

134 North La Salle Street (Room 1100) Chicago, Illinois 60602

Mr. Paul M. Bostrom 6535 Park Boulevard

Pinellas Park, Florida 33565

Mr. C. Howard Hursey 9628 Ridge Heights Road

Fairview Heights, Illinois 62208

Docket for Case No: 75-001043

Orders for Case No: 75-001043