Judges: G. STEVEN PFEIFFER
Agency: Public Employee Relations Commission
Latest Update: Jun. 28, 1990
Summary: Recommend dismissal. Petitioner failed to establish the violations alleged.
75-1790STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OKALOOSA-WALTON JUNIOR COLLEGE ) BOARD OF TRUSTEES, )
)
Respondent, )
)
vs. ) CASE NO. 75-1790
) PERC NO. 8H-CA-754-4084
OKALOOSA-WALTON HIGHER )
EDUCATION ASSOCIATION, )
)
Charging Party . )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 14, 15, 26, and 27, 1976, in Niceville, Florida.
APPEARANCES
The following appearances were entered:
For Public Employees Patricia A. Renovitch, Esquire Relations Commission: Tallahassee, Florida
For Charging Party: John J. Chamblee, Jr., Esquire
FRANK & MAYER
Tampa, Florida
For Respondent: Robert L. Norton, Esquire and
Donald T. Ryce, Jr., Esquire HOGG, ALLEN, RYCE & NORTON, P.A.
Coral Gables, Florida
On July 21, 1975, the Okaloosa-Walton Higher Education Association ("Charging Party" or "OWHEA" hereafter) filed a charge against the Okaloosa-Walton Junior College and its Board of Trustees ("Respondent" or "OWJC" hereafter) with the Public
Employees Relations Commission. The basis of the charge is set out in paragraph 2 thereof as follows:
"Since on or about April 1, 1975, the above- named employer, by its officers and agents, has refused and continues to refuse to permit the Okaloosa-Walton Higher Education Association, and its agents and representatives, access to and utilization of premises under the control of the Public Employer, for the purpose of communicating with employees employed by the employer notwithstanding the purpose of Florida Statutes, Section 447.020 to permit use of premises excepting as proscribed by the aforementioned statutory provision."
The Charging Party was seeking recognition as the exclusive bargaining agent of instructional personnel employed by the Respondent. On or about September 18, 1975, a representation election was conducted, and a majority of those voting elected not to be represented by the OWHEA. The OWHEA thereafter filed "Objections to Conduct Affecting Results of Election" alleging that the Respondent engaged in conduct which interfered with the election and rendered it impossible for employees freely to cast an informed and duress-free vote. The OWHEA requested that the election be set aside and a new election ordered. On November 14, 1975, the Acting General Counsel of the Public Employees Relations Commission ("General Counsel" hereafter) issued a consolidation notice, consolidating for the purposes of further proceedings the Unfair Labor Practice charge and the objections case. On November 14, 1975, the General Counsel issued a Complaint and Notice of Hearing. The Complaint expands the allegations contained in the charge filed by the OWHEA. The hearing was scheduled to be conducted on December 11 and 12, 1975. The Respondent moved for a continuance, and a continuance was granted by order entered December 4, 1975. By notice dated December 22, 1975 the hearing was scheduled to be conducted on January 14 and 15, 1976. The hearing was not completed on those dates, and a continuation of the hearing was conducted on January 26 and 27, 1976. The Respondent did not file written answers to either the Complaint, the Charge, or the Objections.
At the hearing the Respondent moved to dismiss the complaint issued by the General Counsel on the grounds that PERC Rule 8H- 4.02, which authorizes the General Counsel to issue a complaint and pursue an Unfair Labor Practice case, is an unwarranted
extension of Florida Statutes Section 447.503; and that the General Counsel's complaint goes beyond the allegations contained in the Charge. The Respondent moved to dismiss the objections on the ground that no investigation of the allegations contained in the "Objections to Conduct Affecting Results of Election" petition was conducted by the General Counsel as required by the rules of the Public Employees Relations Commission. Other grounds in support of the motions are set out in the written "Motion to Dismiss; or in the Alternative, Motion to Strike" filed by the Respondent at the hearing on January 14, 1976. The motions were denied at the hearing. The Motion to Dismiss the Objections case has been carried forward so as to allow a presentation of evidence respecting what, if any, investigation had been conducted by the General Counsel.
Several petitions to enforce subpoena were made during the course of the hearing. Rulings upon these motions are reflected in the record. One such petition requires further mention. The Chairman of the Public Employees Relations Commission issued a subpoena at the request of the OWJC to John Leatherwood. Certain documents, including minutes of meetings held by the OWHEA, were subpoenaed. The subpoena was apparently served upon Mr.
Leatherwood on January 5, 1975. By letter dated January 7, 1975, Mr. Leatherwood objected to the subpoena. At the hearing the OWJC petitioned to enforce. Arguments were heard, and the petition to enforce was in part granted. When it became evident that a continued date for the hearing would be scheduled, the undersigned requested the parties to submit memoranda in the interim respecting the enforceability of the subpoena, particularly as it related to the minutes of OWHEA meetings. In the interim before the continued hearing on January 26, the General Counsel submitted to the Public Employees Relations Commission a Petition Requesting Ruling on the objections to the subpoena. The Petition Requesting Ruling did not recite that a Motion to Enforce had been made, that the matter had been submitted to the Hearing Officer, that the parties had been requested to submit Memoranda respecting the issue, and that the Hearing Officer had, in fact, preliminarily ruled upon the matter. The Petition Requesting Ruling is dated January 23, 1976. On that same date. the Chairman of the Public Employees Relations Commission entered an order styled "Grant of Motion to Quash Subpoena". It is therein recited that the Employer (OWJC) had not responded to the objections, which is erroneous. PERC Rule 8H-4.11A provides that during the course of a hearing motions will be directed to the Hearing Officer.
Florida Statutes, Section 120.57(1)(d)(4) provides that all parties will be given an opportunity to be heard on all matters presented in cases conducted in accordance with the Administrative
Procedures Act. It is apparent that the Chairman of the Commission was misled in granting the Motion to Quash.
The General Counsel called the following witnesses: Chilton Jensen, Jackson T. Caldwell, John Leatherwood, Dorothy Harris, and Clark Browning, all members of the faculty at OWJC; and J. E. McCracken, the President of OWJC. The Charging Party called Frank Quinlan, a teacher at a junior high school located in close proximity to OWJC, and a negotiator for a union associated with the OWHEA; J. E. McCracken; and Eugene R. Stafford, the Executive Director of Gulf Coast Uniserv, an NEA affiliate which is associated with the OWHEA. The Respondent called the following witnesses: J. E. McCracken; Victoria Lawrence, an assistant to the President at OWJC; Earl Gulledge, the Dean of Instruction at the OWJC; Louan Rathke, an instructor at OWJC; Lennie R. Heath, the Chairman of the Physical Education Department at OWJC; Herb Cash, an instructor at OWJC; George Castle, an instructor at OWJC; George Muhlbach, an instructor at OWJC; and Rebecca Sears, an instructor at OWJC. Hearing Officer's Exhibits 1 and 2, PERC Exhibits 1 - 10, 12 - 14, 16 - 19, and 21 - 38; Charging Party's
Exhibits 1 - 9, and Respondent's Exhibits 1 - 28 were received into evidence at the hearing. PERC Exhibits 11, 15, and 20 were offered into evidence but were not received. Each party has submitted a Post-Hearing Memorandum of Law. The General Counsel and the Respondent have submitted Proposed Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41
to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976.
On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16).
The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows:
"The Faculty Council and the President of the College were in full consensus in affirming the following specifics
relative to solicitations on the campus:
College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified
dining areas and during the scheduled lunch hour of any given employee.
Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services,
Mr. James Rhoades, who maintains the official calendar of College
activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida.
On-campus distribution of any literature and notices which are
not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building.
Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting
and will assure that such notices will be posted and that outdated and obsolete notices are removed."
The guideline is signed by Dr. McCracken followed by the following note:
"Although inadvertently overlooked in the discussions with the Faculty Council, it is,
of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business."
The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows:
"Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings."
Solicitation is defined in the memorandum in pertinent part as follows:
"College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above.
Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida.
On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed.
Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed.
College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership."
The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated.
Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was
distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications.
The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired.
The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3.
Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties.
At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students
were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting.
(PERC Exhibit 9).
As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA.
Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses.
The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied.
The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting.
The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort.
The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation.
The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.)
The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC.
In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and
PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later.
PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation:
. . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our
ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College."
This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process.
PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum.
PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed
by the Respondent did not result in any subversion of the election process.
The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate.
PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative.
PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over
the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ."
Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election.
All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process.
As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization.
Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations.
In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation.
In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list
within the period set out in the agreement was not the fault of the Respondent.
No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The burden of proving that the Respondent engaged in an unfair labor practice, or in conduct which would justify setting aside an election lies with the Charging Party, the Objecting Party, and the General Counsel.
The National Labor Relations Act contains language similar to the provisions of Florida Statutes Sections 447.301(1),(2) and 447.501(1)(a). In interpreting these provisions Federal courts have held it beyond the power of an employer to promulgate rules which prohibit union solicitation by employees outside of working hours on company property. Such rules are presumed to be unreasonable impediments to collective bargaining rights in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline. NLRB v. Magnavox Company of Tennessee,
415 U.S. 322 (1974); Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945).
The June 2, 1975 amendments to the solicitation policy did not prohibit solicitation during nonworking hours either on or off the premises of OWJC 50 long as the solicitations were not made in areas where work was normally performed.
The solicitation guidelines distributed on November 19, 1974 are somewhat more restrictive in that solicitation would be permitted only in carefully designated areas during the scheduled lunch hour. The November solicitation guidelines are overly restrictive, and their promulgation, maintenance and enforcement
could serve as the basis for an unfair labor practice charge. In the instant case, however, the guidelines were adopted in excess of six months prior to the filing of a charge. The promulgation of the guidelines cannot therefore serve as the basis for an unfair labor practice charge. Florida Statutes section 447.503(4)(c). Furthermore, the guidelines were never enforced, despite the fact that the President of OWJC had reason to believe that they were being violated. Solicitations did in fact occur at hours other than the scheduled lunch hour in areas other than the designated areas. The solicitation guidelines did not inhibit the OWHEA in securing the requisite showing of interest for filing the representation certification petition. Members of the OWHEA participated in discussions leading up to adoption of the guidelines, and did not express disagreement with them to the administration. Not until the day of the representation certification hearing was any opposition expressed. The amended guidelines quickly ensued. Any unfair labor practice based upon the November solicitation guidelines must find its basis in maintenance and enforcement of the rule. Mason & Hanger-Silas Mason Co., Inc., 167 NLRB No. 122, 66 LRRM 1201 (1967). Under
NLRB practice, an unfair labor practice would not be found if an illegal solicitation rule had not been enforced, and was corrected. NLRB v. Shawnee Industries, Inc. 333 F.2d 221 (10th Cir. 1964); NLRB v. Elias Brothers Big Boy, Inc. 325 F.2d 360 (6th Cir. 1963).
The Respondent did not commit an unfair labor practice, or engage in objectionable conduct by refusing to allow the OWHEA use of meeting facilities on the OWJC campus. Under Federal law a denial of facilities is considered improper when no other viable means of conducting an organization drive exists. NLRB v. Babcock and Wilcox Company, 351 U.S. 105 (1956); NLRB v. Tamiment, Inc.
451 F.2d 794 (3 Cir. 1971); May Department Stores Co., v. NLRB,
316 F.2d 294 (6 Cir. 1963). In this case, off-campus meeting facilities were available, and there was ample opportunity for the OWHEA to distribute its message. There was no evidence from which it could be determined that it was not practical for a substantial number of persons to attend off-campus meetings, or that the meetings would have been better attended if they had been conducted on campus. The fact that off-campus meetings were not well attended does not lead to the conclusion that use of on- campus facilities was necessary, especially when, as here, it affirmatively appears that members of the proposed unit were apprised of the meetings, and could have attended.
The Respondent did not commit an unfair labor practice, or engage in objectionable conduct by denying the OWHEA use of the
OWJC mail room facilities. The evidence abundantly establishes that the OWHEA had access to the public mails, had an opportunity to deliver its message and did deliver its message. An employee organization is not entitled to use every possible means of reaching the minds of employees simply because it desires to do so; nor to use a specific means of communication simply because the employer is using it. NLRB v. United Steelworkers of America,
357 U.S. 357 (1958). It is sufficient that the employee organization has ample opportunity to express its message, and at least equal opportunity to campaign in favor of collective bargaining as the public employer has to express views in opposition.
The material distributed by the Respondent in support of its campaign against collective bargaining and against the OWHEA does not constitute an unfair labor practice, or objectionable conduct. The memoranda distributed by the Respondent contained some exaggerations, some sales talk, and obvious opposition to the OWHEA. Memoranda distributed by the OWHEA contained similar exaggerations, sales talk, and opposition to the administration of OWJC. None of the material distributed by the Respondent is likely to have had any improper effect upon the election, especially in view of similar tactics utilized by the OWHEA, and the fact that the OWHEA had the ability to distribute materials and to deliver its message.
The Acting General Counsel of the Public Employees Relations Commission properly participated in the unfair labor A practice proceeding. Rule 8H-4.02, Rules of the Public Employees Relations Commission.
When objections to an election are filed, the Chairman of the Public Employees Relations Commission, or his designated agent, is required to investigate the objections, and to render a decision based upon the investigation. Rule 8H-3.28 (f)(g), Rules of the Public Employees Relations Commission. While an investigation conducted in a substantially similar unfair labor practice matter will satisfy the requirement for an investigation, it is nonetheless required that the Chairman issue a decision.
The evidence herein does not support a finding that the Respondent engaged in any unfair labor practice. The unfair labor practice charge filed by the OWHEA, and the unfair labor practice complaint filed by the General Counsel should be dismissed.
The evidence herein does not support a finding that the Respondent engaged in any conduct which would justify the setting
aside of the election. The Objections to Conduct Affecting Results of Election filed by the OWHEA should be dismissed.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED:
That the unfair labor practice charge filed by the Okaloosa-Walton Higher Education Association against the Okaloosa- Walton Junior College Board of Trustees be dismissed.
That the complaint issued by the General Counsel of the Public Employees Relations Commission against the Okaloosa-Walton Junior College Board of Trustees be dismissed.
That the Objections to Conduct Affecting Results of Election filed by the Okaloosa-Walton Higher Educational Association be overruled and dismissed.
ENTERED this 29th day of July, 1976, in Tallahassee, Florida.
G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
PUBLIC EMPLOYEES RELATIONS COMMISSION
OKALOOSA-WALTON HIGHER EDUCATION ASSOCIATION, FTP-NEA,
Charging Party,
vs. CASE NO. 8H-CA-754-4084
DOAH CASE NO. 75-1790
OKALOOSA-WALTON JUNIOR COLLEGE BOARD OF TRUSTEES,
Respondent.
/ OKALOOSA-WALTON HIGHER EDUCATION ASSOCIATION, FPT-NEA,
Petitioner,
vs. Case No. 8H-RC-754-4061
OKALOOSA-WALTON JUNIOR COLLEGE ORDER BOARD OF TRUSTEE,
Order No. 80U-054
Respondent. Issued: April 1, 1980
/
Richard H. Frank, P.A., Tarea, attorney for charging party/petitioner.
Robert L. Norton, of HOGG, ALLEN, RYCE, NORTON & BLUE, P.A., Coral Gables, attorney for respondent.
PER CURRIAM.
On June 29, 1977, the Commission issued a final order in the above-referenced cases. 1/
The Okaloosa-Walton Junior College Board of Trustess (College) filed a timely application for review of the commission's order in the First District Court of Appeal. On June 27, 1979, the Commission order was affirmed in part, reversed in part and remanded to the Commission. The College then filed a timely notice to invoke the certiorari jurisdiction of the Supreme Court. On March 24, 1980, the Supreme Court denied jurisdiction.
The District Court of Appeal reversed the Commission's determinations with regard to the College's promulgation, maintenance, and enforcement of a solicitation/distribution rule and with regard to the College's denial of access to meeting room facilities, but affirmed the Commission determination that the College committed an unfair labor practice by discriminatorily denying the Charging Party equal access to the College's mail facilities. 2/ However, the Court remanded the case to the Commission with directions that the Commission narrow and refine that portion of the Notice to Employees which purports to remedy the College's unfair labor practice.
Accordingly, the Commission's remedy is modified as follows.
The College is ordered to:
Cease and desist from refusing to allow the Okaloosa- Walton Higher Education Association use of the College mail facilities in the same manner and to the same extent as other organizations not indigenous to the campus.
Cease and desist from, in any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Chapter 447, Part II, Florida Statutes (1979).
Take the following affirmative actions necessary to effectuate the policies of Chapter 447, Part II, Florida Statutes:
Post at each building on its central campus in Niceville, Florida, and each of its extension centers, copies of the attached Notice to Employees. Copies of the Notice, on forms provided by the Commission, shall be signed by an authorized representative of the Respondent and posted by Respondent immediately upon receipt thereof. The Notices shall be maintained by the Respondent for sixty (60) consecutive days after posting in conspicuous places, including all places where Notices to Employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the Notices are not altered, defaced or covered by any other material.
Notify the Commission in writing within twenty days from the date of receipt of this order of the steps that have been taken to comply herewith.
It is so ordered. PUBLIC EMPLOYEES RELATIONS COMMISSION
William E. Powers, Jr., Chairman; Michael M. Parrish and Jean K. Parker, Commissioners
I HEREBY CERTIFY that this document was filed and a copy served on each party on April 1, 1980.
BY:
Clerk
ENDNOTES
1/ 3 FPER 153 (1977).
2/ Okaloosa-Walton Junior College Board of Trustees v. Florida Public Employees Relations Commission and Okaloosa-Walton Higher Education Association, 372 So.2d 1378 (Fla. 1st 1979).
Docket for Case No: 75-001790
Orders for Case No: 75-001790
