STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COMMUNICATIONS WORKERS OF )
AMERICA, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1156
) PERC NO. 8H-RC-752-0175 HILLSBOROUGH COUNTY HOSPITAL )
AND WELFARE BOARD, )
)
PUBLIC EMPLOYER. )
)
RECOMMENDED ORDER
The subject cause came on to be heard before the undersigned based on an RC Petition filed by the Petitioner on June 26, 1975. 1/ Briefs were received on or about November 10, from both parties. The parties were allowed seven days after receipt of the transcript to file briefs. The Employer requested and was granted, over the Petitioner's objections, a three day extension of time to file a brief. The Petitioner's brief was received approximately four days subsequent to the allotted period and the Employer objects to its receipt and/or consideration. However, in the interest of fair play, the undersigned received and considered the Petitioner's brief based on inter alia, the fact that the Employer was granted an extension.
APPEARANCES
For Petitioner: Marcia Warden, Business Representative and John J. Earley, Administrative Assistant 2147 First Avenue, North
St. Petersburg, Florida 33713
For Public E. John Dinkle III, Attorney
Employer: Macfarlane, Ferguson, Allison and Kelly Post Office Box 1531
Tampa, Florida 33601
The Petitioner seeks to represent a unit described as all non-managerial and non-confidential employee of the Division of Ambulance Service.
Classifications include: Emergency Medical Technicians, Drivers, Mechanics, Custodians, Dispatchers, Instructor Trainees, Shift Supervisors, excluding managerial and confidential employees. The parties stipulated that the Public Employer is such within the meaning of Florida Statutes, Chapter 447. The Employer refused to stipulate that the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. The record reveals that the Communication Workers of America is a labor organization which represents approximately 25,000 employees throughout the United States; that a purpose of the organization is to deal with employees terms and working conditions and that employees are permitted to participate. Based thereon, the undersigned permitted the Petitioner to proceed to a resolution of the remaining issues to
be resolved in the subject hearing. The record also reflects that the Petitioner made a written request for recognition as bargaining representative on or about June 24, and the employer declined recognition on or about the same date. In declining to recognize the Petitioner as the exclusive bargaining representative, the employer questioned the appropriateness of the unit contending that certain employees petitioned for were supervisory and some of whom were also managerial and confidential types who could present a conflict of interest were they included in the unit, as amended, if found appropriate.
At the outset of the hearing the Petitioner amended its unit description to include Telephone Collectors and the Collection Clerk, which increases the total complement by approximately three. This amended unit petitioned for comprises approximately 102 employees.
HISTORY OF COLLECTIVE BARGAINING
On or about December 14, 1967, the acting regional director for region
12 of the National Labor Relations Board directed an election in a unit including all ambulance drivers and attendants, dispatchers and maintenance personnel employed at the employer's Tampa, Florida, facility; but excluding all office clerical employees, guards and supervisors as defined in the act NLRB case number 12-RC-2956 (unpublished). This petition was withdrawn prior to the conduct of the election. In 1972, another petition, 12-RC-4061, was filed by a different labor organization, i.e., Allied Service Division, Brotherhood of Railway, Airlines and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO and as a result of an election based on that petition, the Petitioner was certified. Based on the undersigned's investigation, it appears that no contract was ever signed based on that certification. There appears to be no other history of collective bargaining.
The employer called James Algood who has been employed for approximately two months as the Director of emergency medical services and testified that the hospital and welfare board of Hillsborough County, Florida (herein referred to as hospital board), a public agency, is charged with the responsibility of providing the necessary facilities to meet the hospital and the attendant needs of the residents of Hillsborough County including total emergency and non-emergency services. This includes providing the necessary ambulance and attendant services including emergency first aid services. In the hospital board's organizational structure, there is a Director, a General Manager and an Operations Manager whom the parties stipulated to exclude as managerial employees. 2/ Algood testified that there are approximately 99 employees in the unit as petitioned for by the Petitioner and that there are six shift supervisors. The operation is broken down into a training section, a maintenance section and a communications section which receives approximately 22,000 calls annually. There are approximately two shift supervisors on each shift and approximately 32 emergency medical technicians and drivers. The employer's operation is, due to its nature, a 24 hour operation. The Petitioner would exclude while the employer would include the shift supervisor in any unit found to be appropriate by PERC. Algood testified that the shift supervisors scheduled shifts and that he utilizes his discretion and exercises independent judgement in carrying out his duties. The shift supervisors file written discipline reports and in those instances wherein a "serious infraction" is believed to have been committed the supervisor fills out what is known as a form
101 and for minor infractions a form 102 is filed. Shift supervisors evaluate employees and such evaluations have a bearing on the employee's merit increases and also play a part in determining whether or not a probationary employee remains throughout the duration of the probationary period thus enabling him to
become a permanent employee. He testified that the shift supervisors recommendation is generally followed. Shift supervisors rate employees on their anniversary date and they have recommended that this probationary period be extended. They have the authority to grant overtime and call employees when they are needed to report for duty. They also grant time off, assign work, and give general information regarding, for example, hazards, weather reports, etc. They also file accident reports and in so doing recommend what disciplinary action, if any, should be taken based on the report. Algood testified that the day shift supervisors are generally on the street, that is, one is on the street and one is in the office and during the night shift there is one supervisor. In addition to the main station in Tampa, there are four substations i.e., two in Plant City, one in Brandon, one in Gibsonton and it is the shift supervisor's responsibility to determine assignments for the various substations. Algood also testified that the shift supervisors recommend discharge. The record reveals that the pay grade for a shift supervisor is pay grade 23, for an emergency medical technician, pay grade 21, and for a driver, pay grade 17. The emergency medical technicians (hereinafter EMT's) must obtain certification and that certification is had by successfully completing 80 hours at a junior college and applying for and obtaining state certification by passing a state administered exam. Algood also testified that the hospital board is in the process of creating a new classification referred to as pari-medical and in order to qualify for that position, the applicant must show evidence of having passed 500 hours of study over and above the EMT certification. On cross examination, Algood testified that the shift supervisors are responsible only for ambulance services and that the EMT qualifying criteria is a valid state certification, a chauffeur's license, a first aid card and to successfully pass a defensive driving course. Algood testified that he initially determines whether or not an applicant receives the classification as an EMT or a driver.
He states that the applicant originally files for the position with the personnel clerk and the applicant is referred to the City Civil Service Commission for an initial rating. Thereafter, the applicant is interviewed by Algood. He testified that there is some interchange between the classification of EMT and the dispatcher but that due to the differing salary grades, the interchange is somewhat limited. The work shift chart for the EMT's reflect that they work a 24 hour shift then they are off for 48 hours and they come back on for 16 hours. Algood testified that the General Manager is in charge of the overall operation and the implementation of policy.
Algood testified that a Mr. Clark is the chief mechanic and working under him are four mechanics. The chief mechanic is in charge of the department's overall operation. He works a 5 day week. Algood testified that the chief interviews applicants and makes recommendations regarding the hiring and discharge of employees. In addition he prepares work schedules, commends employees, he possesses the authority to evaluate and to determine whether or not a probationary employee becomes permanent and that such recommendations are generally effective. The pay grade for the chief is 25 and for the mechanic -
The mechanical department has its own budget. In addition to preparing the work schedule, the chief determines what jobs will have priority and which employees will perform this work. According to Algood, the chief mechanic also has the authority to determine if a driver has abused the equipment and as previously stated, concomitant with that determination is his authority to recommend disciplinary action.
THE TRAINING SECTION
The training section is headed by a Mr. Smith and a Mr. Woodfield. Their duties consist of interviewing and evaluating employees. Their
recommendations as to each is generally followed. They also evaluate probationary employees and make a recommendation which has a bearing on whether or not probationary employees are retained as permanent employees. They also make recommendations which have a bearing as to whether or not an employee receives a merit increase. They devise and conduct seminars and continue training on an ongoing basis. They also conduct other civic functions at schools, etc., and they teach courses for the EMT certification at the local junior college. Their work shift is nine hours daily, Monday through Friday.
The trainers pay grade is 24 while the EMT's are paid approximately 15 percent less i.e., pay grade 21. The trainers also give commendation letters to EMT's. The EMT's work shift is 24 hours on and 24 hours off.
THE COMMUNICATIONS SECTION
The communications section is headed by a chief dispatcher and under him is six dispatchers. The duties of the dispatcher is to relay accurate information to the drivers and get the unit to the scene as quickly as possible. The chief dispatcher recommends the hiring, firing, suspension, work assignments, directs employees, he calls them in for emergency duty and evaluate and rate employees. The pay grade for the chief dispatcher is 24 and for the dispatcher, pay grade 21. He has custody of the payroll sheets and grants overtime. The chief dispatcher works an 8 hour day. The dispatcher and the EMT's are in daily contact in that the EMT's turn in trip tickets to them and the dispatcher reviews the trip tickets. The communications section receives calls from individuals and from other emergency agencies. The coverage is county wide and it is broken down into 15 zones. The dispatcher's duty is to maintain the zones properly, however, they are granted some discretion in assigning units to zones other then their regularly assigned zone. Occasionally calls core in from fire rescue squads and other emergency volunteer organizations. The communications section has a separate budget.
The parties also stipulated to exclude as confidential employees, Judy Kenard and Vickie Lynne, secretaries to the Director and the General Manager respectively and Mary McKellveen who is the personnel clerk. These employees, according to the record, reflect that they have access to personnel records and other confidential matters pertaining to labor relations. The parties also stipulated to exclude a Judith Herring and Debra Coy, Ernest Rodriguez, Theresa Peck and employees Trudy Duerstock, Sherill Haywood and Romana Perkins 3/ based on the fact that they are either what is regarded as, TCEP employees who are paid entirely by federal funds or funds subsidized by state and federal monies and/or that they are "temporary" employees whose contact with the other
employees is minimal and their likelihood of remaining on as permanent employees is speculative. The parties stipulated to include one employee who is classified as a custodian.
The record further reflects that the General Manager is the only employee who has the authority to formulate policy and that the civil service commission is the final authority as to pay changes. Initially, the recommendation for a pay change is submitted by Algood, who in turn submits it to the hospital board and thereafter action is taken by civil service commission. Likewise, Algood initially files a request for additional personnel which in turn must be submitted to the hospital board for approval and thereafter to the civil service commission. The more serious type offenses that would be reflected in a form 101 must first be signed by Algood and then reviewed and approved by the civil service commission. Only the Operations Manager has the authority to suspend employees for more than one day and the General Manager and the Director has the authority to discharge an employee with
the approval of the civil service commission. As to shift changes, the supervisor can only do so within a 24 hour span and the change cannot be effected unilaterally. The training instructors are interviewed by the manager and the supervisor and a written exam is administered thereafter. Civil service determines classifications for the training officers and the shift supervisors. Prior to submitting such to civil service they must be initialed by Algood. All employees are hourly paid and receive the same fringe benefits. The chief mechanic is a "working supervisor" i.e., he normally spends the bulk of his time performing mechanical work on cars. The chief dispatcher also is a working employee in that he performs approximately three days a week performing routine dispatching duties. There was some testimony that the shift supervisors conducted a study concerning collective bargaining data after the petition herein was filed. The shift changes are normally worked out on a mutual basis and although there is some transfer between classifications of EMT and dispatchers the likelihood and frequency of this is minimal inasmuch as there are differing pay grades for these classifications.
Brian Godwin, an EMT-I, has been employed by the hospital board since January, 1974, and was hired prior thereto by the predecessor employer, Ambulance, Inc., for approximately four years. Godwin has served as a dispatcher for approximately four months. He testified that the employees initiate transfer requests and that he had witnessed a progression of what he described as the "normal progression" from driver to dispatcher to EMT. He testified that he desired to be included within the unit. He testified that during his four months as a driver, no instructor trainee ever accompanied him in the unit. However on cross examination, he testified that Ambulances, Inc., took over the operation in June, 1975. He testified that he was a dispatcher for Ambulances, Inc., (the bulk of his employment with the hospital board), and therefore there was little chance that an instructor trainee would have been in any contact with him.
SUMMARY
Based on the record evidence, it appears that these employees occupying the classifications EMT's, the dispatchers, the mechanics and the drivers are employees who have a sufficient community of interest to comprise an appropriate unit. They all share common fringe benefits, comparable pay, similar working conditions, abide by the same personnel rules and regulations and are employed and discharged via the same overall procedures. Although the interchange is minimal, there is frequent contact among these employees who work in concert to accomplish the work goals. The undersigned would accordingly, suggest that they be included in any unit deemed appropriate by PERC. The real issues are the unit placement of the following employees:
2 Instructor Trainees
6 Shift Supervisors
A Chief Dispatcher
A Chief Mechanic
The Office Clerical Group (approximately 4)
These classifications and a summary of their duties follow.
Instructor Trainees
The Petitioner would include, while the Employer would exclude the instructor trainees on the basis that they are either managerial employees or because their duties and responsibilities would result in a conflict of interest
if they were placed in the unit. As stated, they are primarily responsible for devising orientation programs, they teach courses at the local junior college which enable students to receive certification for the pari-medical classification and they engage in sundry civic functions during the course of which they purport to represent the Board.
A managerial employee is commonly regarded (and defined in the statute) as one who have the authority in the interest of the public employer to:
(a) Formulate policy or they may be required to prepare for and conduct collective bargaining negotiations or have a major role in the administration of agreements resulting therefrom and (b), they should have a significant role in administration or in employee relations and the preparation and administration of budgets provided that such is not of a routine, clerical or ministerial nature and require the exercise of independent judgement. In so doing, the commission looks to the historical relationship of the employee to the public employer and to co-employees. Based on the above, it is apparent that the instructor trainees do not possess the requisite "managerial" responsibility in their duties to categorize them into the managerial classification as defined by statute. However the records do reflect that they review applications of prospective employees; recommend hiring of EMT's and drivers which recommendations are generally followed; evaluate employees which ultimately has an effect on whether or not an employee becomes permanent; evaluate employees for merit increases which has a bearing as to whether or not an employee is, in fact, granted a merit increase and has the authority to recommend that an employee be terminated. These are the kinds of duties which could realistically place the instructor trainee in a position of creating a conflict of interest between themselves, the unit employees and the public employer. It is fundamental if a trainee has the authority to review the applications of prospective employees, that they also may weed out employees who, whether for personal reasons or real reasons may decide not to submit that applicant's application to the appropriate person such that he might even be considered for employment. Thus in a real sense he (the instructor trainee) acts as a screener and may prevent the hiring of a prospective employee. Based on this factor and the other factors which indicates that the instructor trainees make recommendations regarding the merit increase awards and other commendations, the undersigned would suggest that the instructor trainees not be included in the unit which would include those employees whom the instructor trainee has the initial input as to whether or not that employee is even considered for employment.
Six Shift Supervisors
The Petitioner would include the shift supervisors while the employer would exclude them on the basis that their inclusion in the unit with employees they "supervise" would create a clear conflict of interest. The evidence reveals that the supervisors are generally in command of approximately 30 to 33 EMT's and drivers in the transportation section (transcript 42-43). Like the instructor trainees, the shift supervisors evaluate employees; determine whether a probationary employee becomes a permanent employee; rate employees regularly; make recommendations as to employees merit increase awards and recommend that employees be terminated. Additionally, they issue letters of commendation, authorize and direct employees who work overtime and call employees in to work during emergencies. The evidence also reveals that these recommendations are generally followed. It is true that the shift supervisors spend a large portion of their time performing duties characteristic of the types of duties of these
employees when they supervise, however, based on the fact that the shift supervisors have a large input into the employment relationship of the employee to his employer, and the fact that the shift supervisors have the authority to and, in fact, make effective recommendations regarding an employee's employment relationship, it is suggested that the shift supervisors be excluded from the unit deemed appropriate by PERC.
Chief Dispatcher
The chief dispatcher supervises approximately seven dispatchers in the communications section, (transcript - 52). Again the chief dispatcher, like the shift supervisor and the instructor trainees also interview applicants who are interested in employment; select individuals for interviews which ultimately has the effect of screening applicants and make recommendations which are generally followed. The record reveals that based on the recommendations of the chief dispatcher regarding the last two dispatchers who were employed during the last few months, such was done on the basis of the chief dispatchers recommendation (transcript - 54). The chief dispatcher also metes out temporary suspensions; assign work schedules; evaluate dispatchers regularly and determine whether or not the probationary employee will be considered for permanent status. Based on these factors and the fact that the chief dispatcher is responsible for and plays a large input into the preparation of the budget. The undersigned would suggest that the chief dispatcher not be included in the unit of those employees who he is charged when supervising.
The Chief Mechanic
The Petition would include while the employer would exclude the chief mechanic from the unit based on the contention that based on his authority, his inclusion would create a clear conflict of interest if he was to be included in the unit.
The record reveals that the chief mechanic supervises approximately 4 mechanics. Like the chief dispatcher, the chief supervisors and the instructor trainees, the chief mechanic interviews prospective employees, and he has the authority to recommend that a person be hired or terminated and has so done. He evaluates employees based on their performance and this evaluation has a bearing on whether or not an employee is given a merit increase or whether a probationary employee becomes permanent. In this regard his recommendations are normally followed. (transcript - 66). His pay is approximately 15 percent more than that of the mechanics. The chief mechanic has some input in the preparation of the bus get for the division and he is also responsible for determining which units should receive priority and which employees will perform the work based on the priority schedule as compiled by him. Based on these factors and the entire record, the undersigned would suggest that the chief mechanic not be included in the unit.
Office Clerical Group
There are approximately 10 office clericals Supervised by Vernon Barchart. As stated, the Petitioner amended the petition over the objection of the employer to include the collection department which cons is of a chief telephone clerk, a collector clerk, and 3 telephone collectors. The collection department is responsible generally for collecting money that is due the collection division. Additionally, There are two employees who work on medicaid and medicare forms. There is a property control and inventory clerk charged with the responsibility of maintaining serial numbers, requisition items that
need to be either replaced or checks incoming and outgoing shipments, etc. There is one billing clerk, one accounting clerk and approximately 4 other employees who are labeled "temporary" employees. As to these "temporary employees, the undersigned has suggested that these employees be permitted to
vote subject to challenge based on the poor state of the record. In this regard the record was not fully developed inasmuch as it appeared at one juncture that the parties had entered into a stipulation to exclude the "temporary" employees and the stipulation, as it later turned out, was never formally entered into and the Petitioner in its brief seeks to include those employees. As to the remaining office clerical employees, the record reveals that the responsibilities and duties of these employees is isolated from that of the other employees in which the undersigned has suggested to be included in the unit. The record reveals that the contact is minimal at best. Based on these facts and the fact that the office clerical workers work in an office which is isolated from the duty stations off the other employees and there is little, if any, contact the undersigned suggests that the office clericals do not share a sufficient community of interest to be included in the unit and would suggest that they be excluded there from.
DONE and ENTERED this 17th day of November, 1975, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
ENDNOTES
1/ All dates, unless otherwise noted, are in 1975.
2/ The parties also stipulated to exclude as managerial the budget commissioner and the business manager.
3/ The record is unclear as to the Petitioner's position with regard to these employees. At one juncture it appeared that there was a stipulation to exclude as "temporary employees" however, in its brief, the Petitioner takes the position that the term temporary is more form than substance and that there has been continuous employment as to these employees, transcript 168-171. Due to the state of the record, it is suggested that these employees be permitted to vote subject to challenge should PERC order that an election be conducted.
COPIES FURNISHED:
E. John Dinkle III, Esquire Post Office Box 1531
Tampa, Florida 33601
Ms. Marcia Warden Business Representative 2147 First Avenue, North
St. Petersburg, Florida 33713
Mr. John J Earley Administrative Assistant 2147 First Avenue, North
St. Petersburg, Florida 33713
Curtis L. Mack, Esquire Chairman
Public Employees Relations Commission Suite 105, 2005 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 17, 1975 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1975 | Recommended Order | Parties seek determination of correct collective bargaining unit for Public Employees Relation Commission (PERC) review. Description of duties and no Recommended Order. |
