STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL BROTHERHOOD OF ) POLICE OFFICERS, LOCAL NO. 514, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1318

) PERC NO. 8H-RC-756-2194

CITY OF JACKSONVILLE, )

)

Public Employer. ) vs. )

) FLORIDA STATE LODGE, FRATERNAL ) ORDER OF POLICE, )

)

Intervenor. )

)

RECOMMENDED ORDER

This cause has come before the undersigned pursuant to notice in accordance with Section 447.307(3), Florida Statutes (1975) and Section 8H-3.28 of the Public Employees Relations Commission's Rules and Regulations. The hearing was conducted before me on May 27 and 28, 1976, in Jacksonville, Florida. All parties were represented and were afforded an opportunity to appear in person or otherwise to present testimony and other evidence regarding the objections.

APPEARANCES

For Petitioner: Wilbur E. Brewton, Esquire

Taylor, Brion, Buker and Greene Post Office Box 1796

Barnett Bank Building, Suite 320 Tallahassee, Florida 32302

and

Gordon E. Ramsey, Esquire Dickstein, Shapirio and Morin Boston, Massachusetts

For Public Mr. Danny Bridges, Assistant Director Employer: Employee Relations, City Hall

Jacksonville, Florida

For Intervenor: Ervin Winsoff, Esquire

Winsoff, Winsoff and Carney 804 Roberts Building

28 West Flagler Street Miami, Florida 33130

BACKGROUND

Pursuant to a stipulation for certification upon consent election approved by the Chairman of PERC on October 23, 1975, 1/ an election was conducted on November 6 in the following unit:

All sworn police officers of the rank of sergeant and below.

The tally of ballots issued after the election evinces that of approximately 850 eligible voters, 599 valid ballots were cast of which 308 were for the Florida State Lodge, Fraternal Order of Police (herein called FOP), 289 were for the International Brotherhood of Police Officers, Local No. 514 (herein called IBPO), and two for no union. There were four challenged ballots which were insufficient to affect the results of the election. Accordingly they were not resolved. On November 21, IBPO filed timely objections to conduct affecting the results of the election. FOP filed its answer on December 8, after which the Chairman of PERC granted an extension of time within which to file an answer. IBPO supplemented its objections by affidavits filed December 11, 18 and on January 20, 1976. Pursuant to Commission Rule 8H-3.28, an investigation of the objections was made and a report ordering the subject hearing was issued on March 12, 1976.

In the Chairman's Report on Objections, the issues posed were:

1. Whether or not the content of a "Mayday" flyer posted and distributed within hours prior to the November 6, election, was such a material misrepresentation of facts that the employees could not reasonably be expected to themselves evaluate the truth or falsity of the statements, and whether such material misrepresentation was made so shortly before the scheduled election so as to preclude an effective reply.

   
   

2. Whether or not a speech by detective C. L. Porter of the Jacksonville Police Department, made in a meeting room usually frequented by burglary detectives within 24 hours prior to the election is violative of Section 447.509(1)(a), F.S., and whether such speech was violative of the rule enunciated by the National Labor Relations Board in Peerless Plywood Co., 33 LRRM 1151 (1953).

   
   

3. Whether the reference in articles appearing in the Jacksonville Journal and the Jacksonville Times Union on November 5, and November 6, respectively, to the effect that the IBPO was a national union which has been organizing police officers and fire departments for the past several years was a material misrepresentation of a major campaign issue which precluded an opportunity for reply and was sufficient enough to dissipate voting employees free choice to such an extent that it materially affected the election results.

Based upon the testimony presented before me at the hearings on May 27 and 28, 1976, along with other documentary evidence introduced including affidavits considered by PERC, I hereby make the following findings of fact:

FINDINGS OF FACT

1. The evidence adduced at the hearing revealed that the issue of whether or not a member of the IBPO could receive quality legal representation was in

   fact a key issue in the organizational campaign. The legal issue is reflected in a "Mayday" flyer which is attached as Exhibit A to the Petitioner's objections. Based on the testimony adduced at the hearing, it suffices to say that the "Mayday" flyer was not authorized by the IBPO. Additionally it was noted that there are significant changes in the wording contained in Exhibit A as opposed to another "Mayday" flyer (Exhibit C, which is attached to Petitioner's objection) with significant portions of the changes in Exhibit A being as follows: (a) The date on the face of the Jacksonville publication was changed from 1971 to 1975. (b) The fourth paragraph of the original flyer (Exhibit C) was changed from his policy is "NO LEGAL ASSISTANCE WILL BE GIVEN IN CRIMINAL MATTERS THAT OCCURRED PRIOR TO THE IBPO TAKING CONTROL IN MAY, 1974" to

   quote his policy is "no legal assistance will be given in legal matters occurring prior to the contract in May, 1974." The "Mayday" flyer was posted and distributed in at least two of the employer's facilities between the hours of 5:00 P.M. and 10:00 P.M., one day prior to the election. There was evidence introduced at the hearing indicating that a significant number of employees viewed the "Mayday" flyer, however, the exact number is unknown. It is significant to note that the flyer was posted in a facility in which a significant number of employees frequent and the posting occurred at a time when two thirds of the employee complement entered the facility in which the flyer was posted in preparation for a shift change. Documentary evidence indicated that the original "Mayday" flyer i.e., Exhibit C, of Petitioner's objections, was prepared by John J. O'Conner for distribution in Petitioner's Washington, D.C., Local, in connection with that local's monthly scheduled meeting. There was no evidence indicating that the flyer was authorized by the IBPO to be posted in the Jacksonville, Florida, area for its organizational campaign.

   Evidence revealed that the reason the original "Mayday" flyer was drafted was to force criticism about the IBPO's legal representation in Washington, D.C. While the purposes for which the article was drafted and posted in the Washington,

   D.C. local, may have been as stated, such is not critical for resolution of the issues posed in this case. The fact is that the flyer was posted at the main precinct and was observable by numerous persons eligible to vote in the election. As stated, evidence reveals that approximately two-thirds of the eligible voters passed through the main precinct during the hours in which the "Mayday" flyer was posted. In weighing the impact of the objection, consideration must be had to the fact that there were at least approximately ten civil suits pending against eligible voters. When consideration is given to the fact that several employees were concerned about the quality and/or caliber of legal representation afforded by the IBPO and couple that fact with the notation that there were suits filed against eligible voters in addition to the "eleventh hour" posting of the "Mayday" flyer, no effective reply could be had. It is thus logical to conclude that the nature of the misrepresentation and the flyer may have had some bearing on the election results. While this conclusion rests on the aforementioned factors, the undersigned also noted that the FOP prevailed in the election by a margin of approximately 19 out of the approximately 599 valid votes cast. Various agencies, including the National Labor Relations Board have given consideration to the closeness of the vote in assessing the impact of a misrepresentation upon the results of an election. See for example, NLRB v. Southern Home Health Corporation, 514 F.2d 1121 at 1125 (7th Circuit, 1975). Turning to the facts in this case, it is foreseeable that had the, for example, approximately ten employees who cast ballots in favor of the FOP rather than the IBPO as a result of the information contained in the flyer, it is realistic to conclude that the election results may have been significantly altered had the facts been accurately represented in the flyer. Based thereon I conclude that the representations contained in the "Mayday" flyer involved a material misrepresentation that constitute grounds for setting aside this election. I shall so recommend.

2. The second alleged objectionable conduct raised is whether or not a speech by detective C. L. Porter made on or about November 5, 1975, at approximately 8:15 A.M. which is within the 24 hour period before the election is violative of Section 447.509(1)(a), F.S., and whether such speech was violative of the rule enunciated by the National Labor Relations Board in Peerless Plywood Co., 33 LRRM 1151, 1152 (1953). The evidence on this objection is that detective Porter, a unit member, spoke at a regularly scheduled required meeting of all detectives in a working area on working time within 24 hours preceding the election date. Detective Porter was present at the meeting in his capacity as a burglary detective. The meeting is a regularly scheduled one which is held on a daily basis to advise all detective unit employees of the status of burglary investigations and claims. During the course of these meetings, all detectives read their daily assignments which serve as a sounding board to advise all employees in that unit of the status of investigations and claims. After reading his update sheet, detective Porter made a statement that he had made a decision to vote for the Intervenor due to "certain things" he had learned about the Petitioner, which things he did not elaborate on. While it is clear that several management officials were present at the time and heard detective Porter's speech, no effort was made to interrupt his remarks. On the other hand, it is also clear, as evidenced by the testimony, that all employees felt free to voice their opinions and many of the employees who testified indicated that they paid little if any credence to detective Porter's remarks as they related to the alleged pro-FOP speech. Further, evidence reveals that they did not feel that they were intimidated or coerced into casting a free and untrammeled ballot in the election the following day. It is also clear that others, as evidenced by their testimony, felt free to reply to Porter's speech as they desired. Giving consideration to the nature of detective Porter's speech, and in view of the fact that other employees felt free to openly reply or give a speech supportive of the Petitioner, the undersigned is of the opinion that this speech did not interfere with the conduct of the election.

   Accordingly I shall recommend that it be overruled.

   
   

3. The third alleged objectionable conduct centered around a reference in articles appearing in the Jacksonville Journal and the Jacksonville Times Union on November 5 and 6, respectively, to the effect that the IBPO was a national union which has been organizing police officers as well as fire departments for the past several years and whether this was a material misrepresentation of a major campaign issue which precluded an opportunity for reply and was therefore sufficient to dissipate voting employees' free choice to such an extent that it materially affected the election results. The evidence on this objection is that police information officer, Mike Gould, was the source of the two news paper articles alleged to be objectionable. News Reporters had approached Gould on the morning of November 5, 1975, seeking a story. Gould related that since there was nothing of consequence regarding the regular police beat, he spoke to reporters concerning the forthcoming election. Gould denied stating that the IBPO represented fire and police units. Gould testified that he gave reporters some background on the changing state legislative law which allowed collective bargaining for police and fire units and since that time, there has been some aggressive recruiting by various labor and fraternal organizations, to act as bargaining agents for police and fire units around the state. Gould did not supply any additional information. He was not solicited by any member of the FOP to give out the above information. After having been shown the article and as his best recollection reflects, he read the article the following day that it appeared in the Jacksonville news papers. Gould related that the author of the article apparently became confused or took his statements out of context as far as showing the IBPO to be a bargaining agent for both police and fire units. He

went further to indicate that the name of the IBPO speaks for itself in that it states for police operations so apparently, according to Gould, it was a mistake on the reporter's part. Based on the name of the organization, Gould related his opinion that he did not feel that a police officer could be misled by the news paper articles in question. He spoke of the various experience that police officers have in talking to reporters and knowing that there is many a slip between the "cup and the lip" and that they themselves have been frequently misquoted. Therefore, in his opinion, he felt that police officers really did not place much credence on news paper stories. After the story appeared in the Jacksonville Journal and later that day in the Jacksonville Times Union, Gould recalled having received a telephone call from a gentleman who identified himself as an IBPO vice president, Harry Breen. Breen, according to Gould, related his displeasure about the story and upon learning of this, Gould indicated that the reporter misquoted him as to efforts by the IBPO to recruit both police and fire personnel. In concluding, Gould related to Breen that the story as it appeared, was not one drawn from information that he had given as police information officer. Later in his testimony, Gould testified that he related to the reporter that IBPO and the PBA were organizing police units statewide and that he confined his remarks to police and fire units inasmuch as they generally group together and the interest by tide reporters was relative to police and fire units. Gould, as evidenced by his testimony, performs basically public relations type duties and plays no part in management or other policy decisions or discussions. Mr. Pace, the reporter who authored the report in the Jacksonville Journal, indicates that he had been a reporter for approximately 30 days at the time the article appeared in the newspaper. His testimony is substantially in agreement with that of officer Gould. Based on the tenor of the remarks and the fact that no employee who testified within the unit indicated that they were swayed or otherwise intimidated or coerced into feeling that the IBPO recruited fire unit personnel for collective bargaining purposes, the undersigned is of the opinion that the articles which appeared in the two daily newspapers did not have any affect on employees' freedom of choice which precluded an opportunity for reply. Nor was there sufficient gravity by such articles to dissipate employees' freedom of choice to such an extent that they, in any manner, materially affected the election results. I shall therefore recommend that this objection be overruled.

RECOMMENDATION

Based on my conclusions that objections numbered two and three of this report are lacking in merit, I recommend that they be overruled.

I further find that the misconduct alleged in objection numbered one is violative of employees' freedom of choice and was a material misrepresentation of a hotly contested issue and was made at such a time that employees could not reasonably be expected to themselves evaluate the truth or falsity of the statements and was such a material misrepresentation that the election should be set aside. Based on my conclusions that objection one has merit, on this basis I recommend that the election be set aside and a new election scheduled as soon as practical.

DONE and ENTERED this 17th day of August, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ All dates, unless otherwise noted, are in 1975.

COPIES FURNISHED:

Wilbur E. Brewton, Esquire Taylor, Brion, Buker and Greene Post Office Box 1796

Suite 320

Barnett Bank Building Tallahassee, Florida 32302

Gordon E. Ramsey, Esquire Dickstein, Shapirio and Morin Boston, Massachusetts

Mr. Danny Bridges, Assistant Director Employee Relations

City Hall Jacksonville, Florida

Ervin Winsoff, Esquire Winsoff, Winsoff and Carney 804 Roberts Building

28 West Flagler Street Miami, Florida 33130

Curtis L. Mack, Chairman Public Employees Relations

Commission

Suite 300, 2003 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 75-001318

Orders for Case No: 75-001318