STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE LODGE, FRATERNAL ) ORDER OF POLICE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1091

) PERC CASE NO. 8HCA-756-2019

CITY OF WINTER PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on September 2, 1975 at Winter Park, Florida.

APPEARANCES

For Petitioner: Irving Weinsoff, Esquire

Roberts Building

28 West Flagler Street, Suite 804 Miami, Florida 33130

For Respondent: Charles R. Fawsett, Esquire

Johnson, Motsinger, Trismen & Sharp, P.A.

100 East Robinson Street Orlando, Florida 32801

On January 24, 1975 the Florida State Lodge, Fraternal Order of Police filed an unfair labor practice charge against the City of Winter Park. The basis of the charge was that the Florida State Lodge Fraternal Order of Police, when requesting recognition as the exclusive bargaining agent from the City of Winter Park, submitted the requisite number of signed and dated authorization cards, but the City of Winter Park refused to recognize them as the exclusive bargaining agent.

By complaint and notice of hearing filed July 24, 1975 the acting general counsel, Public Employees Relations Commission, alleged that on or about December 31, 1974 Sergeant Dale Wasson, an agent and/or representative of the Charging Party did, in an effort to demonstrate its majority status, submit to Robert D. Proctor, an agent of the Respondent, signed and dated authorization cards from a majority of the employees in the unit appropriate for the purpose of collective bargaining. Further, on or about December 31, 1974 and continuing at all times thereafter, the Respondent, through its agent, Robert D. Proctor, refused to accept the Charging Party's authorization cards as evidence that the Charging Party had been selected and designated as exclusive bargaining agent by the majority of the public employees in an appropriate unit. Further, that commencing on or about December 20, 1974, and continuing at all times

thereafter, Respondent promulgated a policy prohibiting any of its agents or department heads from recognizing any organization in the absence of a secret ballot election.

The facts as deduced at the hearing were largely undisputed with the exception of the policy determination alleged above. By letter dated December 13, 1974 signed by Richard Witt, the State Lodge Fraternal Order of Police advised the City Manager of Winter Park that they will be representing Semoran Lodge 64 Fraternal Order of Police and the Winter Park Police Department as bargaining agent for collective bargaining, and requested the Public Employer to recognize them as the exclusive representative of the employees for the Winter Park Police Department. By memorandum dated December 19, 1974, Robert D. Proctor, City Manager of Winter Park, forwarded the above letter to the attorney representing the city, Mr. Charles R. Fawsett. By letter dated December 31, 1974, Mr. Dale Wasson of the Fraternal Order of Police State Board forwarded to Mr. Proctor copies of signature cards executed by 51 of the 54 police officers of the City of Winter Park. These were submitted without any request by the City Manager, or without any discussion of the appropriatness of the proposed bargaining unit. By letter dated January 6, 1975 Charles R. Fawsett advised the President of Florida State Lodge Fraternal Order of Police that the City of Winter Park declines to recognize the Fraternal Order of Police as "exclusive representative" or as bargaining agent of the employees of the Winter Park Police Department. By Petition dated January 21, 1975 the Florida State Lodge Fraternal Order of Police filed a Certificate of Representative seeking exclusive bargaining certification of a bargaining unit including all sworn officers of the Winter Park Police Department excluding Chief of Police, Deputy Chief, and Captain. As noted above, the unfair labor practice charge was filed on January 24, 1975.

In item 2 of a several-page memorandum from the City Manager to the members of the City Commission, the City Manager advised the commission that he had received a letter from the Fraternal Order of Police, Florida State Lodge, requesting that they be recognized as the exclusive bargaining agent of the Semoran Lodge 64 Fraternal Order of Police (Winter Park Police Department). He stated that he had forwarded the information to the city's labor attorney, Robin Fawsett, who will provide the necessary answers and notify the Public Employees Relations Commission that the city is requiring all unions to go through the secret ballot election process rather than offering immediate recognition. Mr. Proctor testified that this memorandum was one in which he routinely forwarded on a weekly basis to keep the City Commissioners apprised of all events occurring within the city government of which they should have knowledge. This is an information-type memorandum to keep the commission posted on events that will be arising in the future, and which would require commission action. Mr.

Proctor does not have authority to make policy respecting labor negotiations. This lack of policy making authority was attested to by both Mr. Proctor and the Honorable James A. Driver, Mayor-Commissioner of the City of Winter Park.

CONCLUSIONS OF LAW

The charge alleged in this case appears to stem from s. 447.307 Florida Statutes, which provides in pertinent part:

"(1) Any employee organization which is designated or selected by a majority of public employees in an appropriate unit as their representative for pur- poses of collective bargaining shall request recognition by the Public Employer. The Public

Employer shall, if satisfied as to the majority status of the employee organization and the ap- propriateness of the proposed unit, recognize the employee organization as the collective bargaining representative of the employees in the designated unit "

"(2) If the public employer refuses to recognize the employee organization the employee organization may file a petition with the Commission for certification as the bargaining agent for a proposed bargaining unit "

Here the employee organization submitted copies of signature cards without any request to do so from the city. No discussion was held regarding the appropriateness of the bargaining unit. In the representation hearing, which commenced May 6, 1975 and thereafter stayed pending resolution of this unfair labor practice charge, the city took the position that the appropriate bargaining unit would not include sergeants and above. Lieutenants and sergeants were included in the proposed unit for which the signature cards were submitted by the union to the city. To hold that the union could obligate the city to recognize them merely by submitting to the public employer either the original or copies of signature cards showing that a majority of the members of the group had signed same and thereby require the public employer to accept that group as the appropriate bargining unit flies in the face of the intent and purpose of the Florida Public Employee Relations Act. While authorization cards can be a valid basis for determining whether a union represents a majority, a PERC conducted election is the preferred method. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. (1969). No discussion was held between union and city with respect to the appropriateness of the unit proposed by the employee organization. The city's refusal to recognize that unit as the appropriate bargaining unit merely because the employee organization had shown that a majority of those members had signed the cards does not constitute an unlawful refusal to bargain. IDAK Convalescent Centers, d/b/a North Shore Convalescent Home 195 NLRB No.38. To so hold would take away from the city the opportunity to contest the appropriateness of the proposed unit. Determination of the appropriate bargaining unit is the principal issue in virtually all representation hearings. Under the National Labor Relations Act the employer has the right to petition the NLRB for an election if he does not agree with the proposed bargaining unit. No such alternative is given the public employer under Public Employees Relations Act.

Had the City Manager, after ascertaining that the proposed bargaining unit was an appropriate bargaining unit, requested the union to show by the signature cards that they represented a majority of those members of the proposed unit, the situation would have been different. In the absence of independent unfair labor practices, an employer normally may refuse to accept any evidence of a union's majority status other than by a commission conducted election. Linden Lumber Division v. NLRB 42 L.Ed. 2d 465(1974).

The other issue here involved relates to the memorandum submitted from the city manager to the city commissioners with the comments pertaining to requiring unions to go through a secret ballot election before recognition. That the city manager did not have the authority to establish such a policy was attested to by the city manager and the mayor. However, as noted above, refusal to accept unsolicited evidence to establish the union's majority status does not, standing alone, constitute an unfair labor practice. Since the preferred method of

determining a union's majority status is through the election process a policy of the public employer requiring Commission conducted elections would not constitute an unfair labor practice. Linden, supra.

From the foregoing it is concluded that the Respondent, City of Winter Park, has not committed any unfair labor practice. It is therefore,

RECOMMENDED that the complaint be dismissed.

DONE and ORDERED this 25th day of September, 1975 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Irving Weinsoff, Esquire Charles R. Fawsett, Esquire

Docket for Case No: 75-001091

Orders for Case No: 75-001091