STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY BOARD OF COUNTY ) COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1346

)

ROBIN KEITH BAILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came on for hearing before the undersigned in Gainesville, Florida, on October 13 and 14, 1975, 1/ based upon a complaint and notice of hearing which was issued by the Public Employees Relations Commission (hereinafter sometimes referred to as PERC or Commission) on September 29. The complaint alleged that the Respondent discharged Robin Keith Bailey, a public employee, from his position with the Respondent in contravention of Florida Statutes 447.201 and 447.501(a)(b) of the Public Employees Relations Act (hereinafter referred to as the Act.) The Respondent denied the commission of any unfair labor practices. At the conclusion of the hearing, oral argument was waived, and the partied were given leave to file briefs which have been received from both parties and were duly considered by me in preparation of this Recommended Order.

Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following:

FINDINGS CONCLUSIONS AND RECOMMENDATIONS

1. The Business of the Respondent,

   
   

   1. The Respondent, a Public Employer, has its principal place of business located in Gainesville, Florida, where it is engaged in the business of operating a County. Respondent is created directly by the Florida State Constitution or Legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to public officials and/or to the general electorate. It is therefore found that the Respondent is a Public Employer within the meaning of Section 447.203(2) of the Act.

      
      

2. The Labor Organization involved

   
   

   1. The Union is a labor organization within the meaning of the Act.

      
      

3. The Alleged Unfair Labor practices.

A. Introduction

1. Respondent took over the operation of the ambulance service in October 1, 1974, and the alleged discriminatee, Bailey, was retained in the employ of this political subdivision. Bailey worked on 24 hour shifts and was on call during the entire period, whether he was eating a meal or not. He was originally employed by the Alachua Ambulance Service, a private corporation, on August 25, 1973, and left the service on October 25, 1973. He was reemployed as an emergency medical technician (EMT) by the ambulance service in December, 1973, and remained an employee of the service until his termination on January

1. After the takeover of the service by the County, Mr. Bailey contacted John Glenn, of the International Association of Firefighters, for the purposes of determining whether or not that organization might be able to represent the employees of the County ambulance service. Mr. Bailey was involved in the solicitation of his fellow employees in an effort to get them to sign union authorization cards during the remainder of 1974. Glenn advised Bailey that the employees could probably obtain representation from the Firefighters.

   
   

   1. Bailey and a second EMT, Allen Lovvorn, were on duty on the evening of December 21, 1974. They had been invited to attend a party at the Vizcaya Apartments which was given by some of the emergency room personnel from Shands Teaching Hospital. After making a patient delivery at approximately 9:00 P.M., Bailey and Lovvorn made a patient delivery to Roberts Funeral Home which was located close to the Vizcaya Apartments. Upon completion of the delivery, they attended the Vizcaya affair to eat dinner. Bailey confirmed his position with the central dispatcher by giving a Signal 15 code. While at the party, Lovvorn was in touch with central dispatch by use of a two-way radio which he carried on his person. Shortly after their arrival, the team was called to make a delivery and responded immediately by leaving the party. Bailey left on his vacation prior to the first working day following this incident. Upon his return, a two hour meeting was held between he and Mr. Beazy Stephens, the Director Consultant, and at that time Bailey was informed that his "improper stop" was in violation of the regulations and therefore his employment was being terminated. The second attendant, Lovvorn, was not terminated, allegedly due to his status as a stand-by employee and general lack of familiarity with company rules and regulations. Lovvorn was therefore given an oral reprimand. The Respondent also contends that Bailey's work record was a precipitating factor in his discharge in that he had been reprimanded several times due to his argumentative behavior with the sheriff's office dispatchers. Respondent also alleged that Bailey too often usurped the authority of others, placing his judgment above those around him and thereby impeded the orderly operation and advancement of the operations. 2/

      
      

   2. The evidence reveals that there were approximately 30 employees in the service during the operative period surrounding Bailey's discharge. There is also testimony that, and Director/Consultant Stevens admits, that he was aware of Bailey's union activities and the activities of other employees. Also, Cleveland Nolte, Deputy Director of Public Safety and second in command to the Director of the Office of Civil Defense, testified that he was aware both of the employees union activities and Bailey's participation therein. He further testified that he might have even spoken to Bailey about the union during October, 1974. Bailey indicated that he related his knowledge to Safety Director, Pat Jameson and Manager, Ron Hines. Nolte also testified that Bailey's activities were common knowledge and further that employees at the County office knew that he was involved in union activity.

   3. It is well settled that an Employer can discharge an employee for good reason, bad reason or advance no reason at all so long as the reason in no way relates to an employee's union or other protected activities.

      
      

   4. The record in this case demonstrates that the Employer was aware of Bailey's union activities. It is also clear that Bailey was discharged whereas the other employee, Lovvorn, was only given an oral reprimand. With these facts, it readily becomes apparent that there was disparity of treatment between the two employees. However, one must reflect on whether the difference in treatment was based on some legitimate or other objective consideration. The Act guarantees that employees have the right to engage in collective activities or refrain from doing so based on their own determination as to whether or not they care to do so. An Employer who seeks to interfere with, restrain or otherwise coerce employees in exercising any rights guaranteed them under Section 447, Florida Statutes, runs afoul of the language contained in that part. Bearing in mind that the Employer had knowledge of Bailey's activities and considering the fact that there were approximately 30 employees of the service, it clearly follows that Bailey's discharge would have a destructive effect of employees rights in seeking to exercise those rights guaranteed them under the Act. In determining whether an Employer's conduct, be it encouraging or discouraging interferes with, restrains or coerces employees from exercising those rights guaranteed them under the Act, one must look to subtle things which the U.S. Supreme Court has determined that it requires high introspective perceptions to discern. See for example Labor Board v Donnelly Garment company, 330 US 219, at 231, 19 L.R.R.M. 2317 (1946)

      
      

   5. The rule which Bailey allegedly violated was posted effective November 4, 1974. The evidence revealed that the rule in pertinent part stated that ambulance drivers could not run personal errands on company time. Drivers were told by supervisors that it would be O.K. if they had to stop temporarily for personal business and while doing so they could use code Signal 15. Employees were free to use their own discretion when any stops were of short duration. Usage of the code 15 meant that the employees stayed in constant contact with the base station by use of a small radio pack carried on their person. There is evidence that other employees utilized this code to take care of other personal business such as taking care of short errands whereas when an employee stopped for a meal, he was to utilize the code J-2.

      
      

   6. The undersigned is of the opinion that Bailey utilized code 15 such that he could remain in constant contact with the dispatcher and be available for calls at any time. Furthermore, he at no time denied that he stopped at the Vizcaya Apartments which lends further support to his testimony that he at no time considered his actions to be in contravention of the Employer's meal policy. There was also testimony that other employees had utilized this code and had not been subjected to the harsh penalty of discharge.

      
      

   7. The Employer's stated reasons for Bailey's discharge are unconvincing and are rejected by the undersigned. The reasons are that other employees utilized this procedure and had not been subjected to the harsh penalty of discharge. Furthermore, the only recognizable difference in the act by Lovvorn and Bailey is that the Employer was aware of Bailey's union activities whereas it was not aware that Lovvorn had engaged in any union activities. By metting out the harsh penalty of discharge, the Employer could readily foresee that the message would be clear to other employees who elected to exercise any rights guaranteed them under the Act. This is so despite the Respondent's claim that Lavvorn was not discharged because he was a new employee who was unfamiliar with its personnel rules and policy. Bailey was a known union adherent who was

      regarded as a leader even by Respondent. Armed with this knowledge, Respondent would have been well advised to ensure that any disciplinary action taken against Bailey was effected in a fair manner.

      
      

   8. It is also noteworthy that the Employer, while stating that Bailey's work record was poor, apparently condoned his performance, indicated that he was a leader and respected him as such. While it might have been bad judgment on Bailey and Lovvorn's part to attend a party outside the base zone, the facts do not show that their attendance had a disruptive effect on the Respondent's operation. There was other credible evidence that the meal policy had been violated by other employees and they were not discharged for their action. Respondent admitted that the meal policy was not a model of clarity and that some employees did not fully understand it. With these facts, the undersigned is of the opinion that Bailey's conduct was not sufficient to warrant the penalty of discharge. Rather it appears that the Respondent seized upon this opportunity to rid itself of a known union advocate. It is therefore recommended that the Respondent be required to reinstate Bailey to his former or substantially equivalent position with back pay plus interest for any loss earnings. I further recommend that the Respondent be required to post a notice that essentially provides that it will note engage in any act which interferes with those employee rights guaranteed in Section 447, Florida Statutes.

DONE and ORDERED this 23rd day of April, 1976, 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 are in 1975 unless otherwise noted. 2/ See Respondent's Exhibit 3, pages 4 and 5.

COPIES FURNISHED:

George H. Nickerson, Jr. Assistant County Attorney

Room 402, Alachua County Courthouse Gainesville, Florida 32601

Rodney W. Smith, Esquire Staff Attorney and

Jack L. McLean, Jr., Esquire Acting General Counsel

Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway

Tallahassee, Florida 32301

Robin K. Bailey

P. O. Box 12847 Gainesville, Florida 32604

Tom Brown

221 N.W. 4th Avenue Gainesville, Florida 32601

LIST OF EXHIBITS

General Counsel's Exhibit #1 - Notice of Decision of Appeals

Referee.

Respondent's Exhibit #1 - Map of Gainesville, noticing U. of

F. area.

Respondent's Exhibit #2 - Memo on Rules concerning Meals. Respondent's Exhibit #3 - Memo to Howard Weston, From Ronald

Hines concerning the termination of Keith Bailey.

Respondent's Exhibit #4 - Copy of Dispatching Policy.

Docket for Case No: 75-001346

Orders for Case No: 75-001346