STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FEDERATION OF PUBLIC EMPLOYEES, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1153

)

CITY OF MARGATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Section 447.307(3)(a), Florida Statutes, and Rule 8H-3.16, Florida Administrative Code, a public hearing was held, upon due notice, by the undersigned Hearing Officer in the above-captioned matter on October 30, 1975, at Margate, Florida.

APPEARANCES

For Petitioner: Theodore P. Mavrick, Esquire

2601 East Oakland Boulevard, Suite 205 Ft. Lauderdale, Florida 33306

For Respondent: Paul B. Pettie, Jr., Esquire

900 North Federal Highway, Suite 202 Pompano Beach, Florida 33064

By petition to the Public Employees Relations Commission (PERC), dated June 13, 1975, Petitioner seeks a Certificate of Representation as the exclusive bargaining agent for the "Employees of Public Works Department and Aquatic Weed Control" with the exception of "Managerial and Confidential Employees".

The parties stipulated that the City of Margate, Florida is a public employer within the meaning of Section 447.203(2), F.S. and that the Petitioner is a employee organization as defined in Section 447.203(10), F.S. The Stipulation was accepted by the Hearing Officer. It was further stipulated by the parties that Petitioner requested in writing to the public employer recognition as a bargaining unit on May 6, 1975, and that the Public Employer declined recognition on or about June 11, 1975. This stipulation was accepted by the Hearing Officer.

Formal documents accompanying the file, i.e., Exhibit 1, the Petition; Exhibit 2, Affidavit of Compliance for Registration for Employee Organization; and Exhibit 3, Affidavit of Compliance for Required Showing of Interest were admitted into evidence, without objection, by the Hearing Officer.

The parties jointly introduced into evidence Resolution No. 3174 of the City of Margate, Florida (Exhibit 4) authorizing the proper city officials to enter into a consent election agreement which was attached to the Resolution.

The consent election agreement is signed by representatives of both parties, and provides that the appropriate collective bargaining unit will include laborers, groundskeepers, equipment operators, chemical applicators, masons, carpenters, painters, electricians, mechanics, & custodians. It further provides that excluded from the unit are the director of Public Works, the superintendent, and two secretaries (It was stipulated by the parties at the hearing that one of the secretaries is actually a clerk-typist and should be so designated). An addendum to the agreement provides that there are four foremen, one chief mechanic, and one inventory clerk who are employees of the Public Employer in the Public Works Department but over which the parties have a dispute as to whether or not they should be included in the bargaining unit. It further states that the parties in the spirit of cooperation desired to enter into certification upon consent election agreement on the condition that PERC shall make the determination as to whether these employees shall be included or excluded from the unit. Upon inquiry of the Hearing Officer as to whether such an agreement was premature in the absence of agreement as to all employees to be included in the unit, he was informed by counsel for the parties that inquiry to representatives of PERC had established that the consent election agreement would be valid and contingent upon the outcome of the representation hearing as to the positions in dispute. Nevertheless, the Hearing Officer informed the parties that evidence concerning all positions should be submitted at the hearing in view of the fact that PERC has not yet approved the composition of the unit as agreed to by the parties.

The Petitioner requested that its name as it appears on the Petition and supporting documents be amended from "Federation of Public Employees" to "Federation of Public Employees, Inc.". There being no objection to this proposed amendment, it was granted by the Hearing Officer.

FINDINGS OF FACT

1. The Public Works Department of the City of Margate has fifty-six established permanent positions and three part-time laborer positions. Six positions are unfilled at the present time. The department consist of the following employees: A director, a superintendent, a secretary, two clerk typists, an inventory clerk, a custodian, a foreman for grounds, a foreman for aquatic weed control, a foreman for buildings, a foreman for roads, a chief mechanic, ten equipment operators, two groundskeepers, three chemical applicators, four mechanics, two carpenters, one electrician, a painter, a mason, and twenty laborers (Exhibit 5).

   
   

2. Each foreman has responsibility for a certain type of work and has from

   8 to 12 employees working in his division. The chief mechanic has eight employees under him who operate on a shift basis in order that vehicle maintenance may be provided around the clock. The foreman and chief mechanic report through the superintendent to the director in a direct line of authority. The inventory clerk reports through the superintendent to the director (Exhibit 5).

   
   

3. The Director exercises general supervision over all employees and the direction and administration of the department. Departmental responsibilities include the repair and maintenance of streets and sidewalks, city vehicles, city parks and pest control. Under the direction of the Mayor, the director is responsible for planning and administering the budget for the department, preparation of daily work schedules, preparation and submission of reports, procurement of supplies and materials, engineering and layout work and supervision of the repair and maintenance of property and equipment of the

   department. He is responsible for the formulation of policy of the department and has the primary role in personnel administration and employee relations for the department. Based upon interviews conducted by the superintendent, the director provides recommendations to the mayor as to the hiring and firing of personnel. He is empowered to take disciplinary action against employees. He holds weekly "foremens" meetings attended by himself, the superintendent, the inventory clerk, the four foremen, and the chief mechanic. At these meetings, various ideas are discussed and input is received from individuals attending the meeting as to their area of interest. It is primarily a meeting to discuss previous problems and solutions thereto and does not usually result in decisions involving policy affecting the entire department (Exhibit 6).

   
   

4. The superintendent is the second in command in the department and serves as the acting director in the absence of the director. He exercises general supervision over all other personnel of the department and directs the daily activities of the department. He serves as the administrative assistant to the director and in this capacity is, in charge of personnel administration. He makes effective recommendations to the director concerning personnel and disciplinary matters, provides meaningful input into budget and policy formulation and reasonably can be expected to actively assist the director in the preparation for and conduct of collectively bargaining negotiations or to have a major role in the administration of any agreement resulting therefrom (Exhibit 7).

   
   

5. The secretary is the personal secretary to the director who performs normal secretarial duties and also has access, to all confidential personnel files of the department. She takes and transcribes dictation of meetings at which confidential matters are discussed and would perform in a like manner to assist the director in confidential matters involving collective bargaining (Exhibit 8)

   
   

6. One of the clerk-typists, similarly to the secretary, also has complete access to all budget policy and confidential personnel files in the same manner and virtually to the same extent as the secretary. The other clerk-typist position is under the Foreman for aquatic weed control and does not involve access to confidential information.

   
   

7. The equipment operators, groundskeepers, chemical applicators, masons, carpenters, painters, electricians, and mechanics perform functions as are indicated by their titles. Groundskeepers normally are in charge of two or three men crews to cut and trim grassy areas and perform other duties in beautification of the city. They work alongside the laborers and are interchangeable with them. They exercise no real supervisory functions. In like manner, the equipment operators who drive the tractors, trucks and other mechanical equipment of the department are interchangeable with groundskeepers and perform basically the same functions. Chemical applicators mix and apply chemicals to canals and other bodies of water to destroy noxious weeds. They do not possess any special degree of expertise and merely carry out directions of their supervising foreman. Skilled personnel, such as masons, carpenters, painters, electricians, and mechanics perform maintenance work as required and do not exercise supervisory functions. The custodian is responsible for cleaning and maintenance duties at the city hall. Laborers perform unskilled labor on the grounds, roads, and buildings under the supervision of the foremen.

   
   

8. The four foremen are each in charge of a division in the department. These divisions are grounds, roads, buildings and aquatic weed control. The first three are described as "area" foreman and basically perform

   interchangeable functions that generally include the maintenance and repair of all city-owned areas and properties including grass cutting, tree trimming, patching pot holes, painting, and major and minor repairs. They are immediately responsible to the superintendent and exercise general supervision over the employees assigned to their divisions. They attend weekly "foremens" meetings with the director as described heretofore and provide input at these meetings concerning their area of work. They directly assign jobs to the men under them and follow-up to insure that they have performed the task satisfactorily. They maintain hourly worksheets on the men and exercise first-line grievance functions. They resolve minor complaints independently, but can only make recommendations to the superintendent concerning major complaints and as to disciplinary sanctions. They have no effective role as to hiring or firing of personnel.

   
   

9. They divide their employees into crews to cover the city in their particular area of responsibility. Although a crew in the grounds department, for example, would normally include the groundskeeper and a laborer or two laborers, the foreman determines the size of the crews and can use them in any manner he sees fit to accomplish the overall mission of the division. He prepares an evaluation on the performance of each employee every six months. Although the foremen work alongside of their men and were considered "working foremen" in the past, about six months ago it was determined that they should devote more time to supervisory responsibilities and do less actual physical labor. At this time, they still on occasion decide on their own to help out the workers under them. The foremen of the aquatic weed control division exercises somewhat more specialized functions than the other foremen in that he is required to be familiar with the mixing and dispensing of herbicides, pesticides, and algaecides for eradication of pests and aquatic plants in canals and waterways. Other than this specialized knowledge, he basically exercises the same responsibilities as the other foremen (Exhibits 8, 9, and 10).

   
   

10. The chief mechanic is a "working" supervisor who oversees the servicing, overhauling, repairing, and preventive maintenance of the equipment, heavy vehicles and passenger cars of the city. He checks major equipment in the field to ascertain if repairs should be made there or in the shop, makes decisions as to what repairs should be done and where, decides what parts to replace, what parts to purchase, and those that should be built in the shop. He supervises the maintenance of various records pertaining to the vehicles and their use, replacement of tires and parts, and renders reports. He approves requisitions for parts and materials not carried in stock and ensures that work is covered by shop work orders. He plans the daily work program of his division, can adjust and readjust schedules to meet fluctuations and maintenance needs of equipment and availability of required personnel, and authorizes overtime. He administers his share of the department budget and sees that it is not exceeded. He has blanket authority to buy required vehicle parts and tools. He assigns work to three shifts in his division to maintain 24 hour repair capability. He is also responsible for the security of the Public Works building where offices are located and vehicles and equipment are kept. His supervisory functions are similar to those of the foremen with respect to assignment of work, responsibilities for accomplishment of his mission, input at weekly meetings concerning his area of responsibility and the like (Exhibit 12).

    
    

11. The inventory clerk is responsible for dispensing all usable supplies on a day-to-day basis and maintains an inventory of all departmental supplies. He is responsible for the security of all items including vehicles and equipment. He receives, inspects and approves or disapproves all municipal deliveries. He advises the superintendent and director as to what materials

    have been used, how best the expenditure of supplies can be reduced, and maintains control records on time, materials, and labor for various jobs performed by the department. He makes an independent determination as to whether materials are available to other departments or if the request is unreasonable and then makes recommendations to the superintendent as to whether such request should be honored. He contributes suggestions for the conservation of supplies which normally are acted upon by higher authority. He exercises no supervisory functions and has no employees under him (Exhibit 11).

    
    

    DISCUSSION

    
    

12. The agreement of the parties as to the employees to be included and excluded from the proposed bargaining unit is in keeping with the functions of those employees and the statutory criteria as implemented by PERC's rules and regulations.

    
    

13. The foremen and the chief mechanic exercise supervisory functions over the employees within their respective divisions, but cannot be considered to make effective recommendations concerning policy which is applicable throughout the proposed bargaining unit, nor will they be required to assist directly in the preparation for and conduct, of collective bargaining negotiations or to have a major role in the administration of agreements.

    
    

14. They have no significant role in personnel administration or employee relations other than as first line supervisors and have no authority in the formulation of the departmental budget, although they do provide input as to needs in their various spheres of responsibility. They perform little or no function in the hiring, firing and disciplining of personnel, although they do provide periodic evaluations upon their performance. They have latitude in the assignment of work and the composition of work crews and are responsible for the accomplishment of their division's responsibilities. Some of them work alongside of their men on occasion and this practice has been lessened in the recent past except for the chief mechanic who still divides his time in performing maintenance and repairs. They all report to the director through the superintendent. They distribute work with a view to equating the work load in relation to accomplishment of the mission, independently reassign work and specify the number of employees to be used on a particular job. They are responsible for maintaining order in the work area, attempt to resolve minor employee complaints and, if not resolved, to report them to higher authority. They report on employees misconduct or infractions of departmental rules with recommendations to the superintendent. They see that employees are present in their work areas and performing their assigned functions, and maintain employee time cards. The employees under these supervisors look to them as their "boss" and follow their instructions. The foremen and chief mechanic make decisions not ordinarily made by the employees under them and determine when, where, and to what extent they themselves should participate in manual labor.

    
    

15. In the absence of the superintendent, one of the foremen would assume his functions on a temporary basis. They have the authority to commit the employers credit for "off the shelf purchases" which are necessary for the performance of division responsibilities. It may be anticipated that there would be a minimal degree of conflict of interest if these employees were included in the proposed bargaining unit.

    
    

16. The inventory clerk, although exercising independent judgment in the performance of his duties and responsibilities as to departmental supplies, does not exercise supervisory functions. He does provide input to the formulation of

policy regarding the utilization of supplies which is applicable throughout the bargaining unit. He would not be expected to participate in any collective bargaining negotiations or to have any role in the administration of agreements resulting there from. His inclusion in the proposed unit would not create a conflict of interest or otherwise be incompatible with the ability of the department to serve the public.

In accordance with Section 447.307(3)(a), Florida Statutes, no recommendations are submitted.

DONE and ENTERED this 24th day of November, 1975, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Paul B. Pettie, Jr., Esquire Theodore R. Mavrick, Esquire 900 N. Federal Highway 2601 E. Oakland Boulevard Suite 202 Suite 205

Pompano Beach, Florida 33604 Fort Lauderdale, Florida 33306

Docket for Case No: 75-001153

Orders for Case No: 75-001153