STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COLUMBIA COUNTY TRANSPORTATION ) AND MAINTENANCE WORKERS )
ASSOCIATION, )
)
Charging Party, )
)
vs. ) CASE NO. 75-2106
) PERC CASE NO. 8H-CA-754-
COLUMBIA COUNTY BOARD OF PUBLIC ) 2064
INSTRUCTION, )
)
Respondent. )
)
REPORT OF HEARING OFFICER
This matter came on to be heard, after due notice, at Lake City, Florida on March 2 & 3, 1976, pursuant to a complaint issued by the Public Employees Relations Commission under Section 447.503(3)(a), Florida Statutes, and Rule 8H-4.03, Florida Administrative Code, as a result of unfair labor practice charges made by Columbia County Transportation and Maintenance Workers Association against the Columbia County Board of Public Instruction.
APPEARANCES
For the Charging Party: Jack Adams, President
Columbia County Transportation and Maintenance Workers Association
For Respondent: Terry McDavid, Esquire Post Office Box 1328 Lake City, Florida
For the Public Thomas W. Brooks, Esquire
Employees 2003 Apalachee Parkway, Suite 300 Relations Commission: Tallahassee, Florida 32301
At the hearing, the legal representative (General Counsel) of the Public Employees Relations Commission (PERC) announced that he would represent the Charging Party and assume the burden of
presenting the evidence in support of the allegations in the Complaint.
The Charging Party agreed to withdraw his charge of a violation of Section 447.016(1)(e) (now Section 447.501(1)(e)). This withdrawal was agreed to by all parties and accepted by the Hearing Officer.
The General Counsel moved to amend the charges to include events which occurred subsequent to May 14, 1975, relating to the employee involved in the charges, Jack W. Adams, as reflected in the Complaint. The amendment was permitted by the Hearing Officer.
The parties stipulated as to Paragraphs 1 through 5 of the Complaint.
FINDINGS OF FACT
The Respondent, a public employer, has its principal place of business in Lake City, Florida, where it engages in the business of operating a school system. 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 (Stipulation.)
The Respondent now and has been at all times material to these proceedings, a public employer within the meaning of Section 447.203(2) of the Public Employees Relations Act (Stipulation.)
The Charging Party is now, and has been at all times material herein an employee organization within the meaning of Section 447.203(10) of the Act (Stipulation.)
Since on or about July, 1973, up to and including June 30, 1975, Jack W. Adams was a public employee within the meaning of Section 447.203(3) of the Act (Stipulation.)
On or about April, 1975, and continuing thereafter, Adams engaged in employee organization-related activities designed to acquaint fellow employees of Respondent with the benefits of organizing and collective bargaining on behalf of the Charging Party (Testimony of Adams.)
Adams was hired in July, 1973, by the Respondent as a Refrigeration Mechanic I in the Maintenance Department of the Columbia County school system. There was no one in this position at the time. Adams' duties were to service and maintain the refrigeration and air conditioning equipment at the various county public schools. Shortly after he was hired, he was given an apprentice, Henry Williams, to assist him in his functions. His first supervisor was Henry Stalmaker. Later, the maintenance and transportation functions were separated into different departments and Stalmaker became the Coordinator of Transportation. Ulis Taylor, who had been the "lead man" in the Maintenance Department, became the Coordinator of Maintenance in the summer of 1974. The equipment which Adams serviced had many problems when he was first hired. He improved the state of the equipment during the period that he worked under Stalmaker and the latter received no complaints during that time as to his attitude or the quality of his work (Testimony of Adams, Stalmaker.)
In August, 1974, Adams talked to some Maintenance Department employees about the possibility of having a civil service system established for county employees. He received information on such a program and showed it to the employees, but found that they were not interested in pressing for the institution of such a system. In September, Dr. Frank Phillips, Superintendent of Schools, Columbia County, had a meeting with Adams at which he suspended him for two days for being involved in an incident at one of the local schools in which Adams' son allegedly had used a faculty lounge without authority while serving as a high school work-trainee with his father. The son was suspended from school as a result of this incident which allegedly involved the use of profanity by Adams and his son. Adams sought assistance from a school board member to intercede on his own suspension. The board member did so because Adams had not been afforded an opportunity to present his version of the incident. The matter was resolved after the board member discussed the situation with Phillips. Also during the September meeting, Phillips informed Adams that his discussions with employees on civil service had disturbed the school board, and told him to refrain from any further such activities (Testimony of Adams, Williams, Phillips, Markum.)
On April 28, 1975, a group of school bus drivers approached Adams to become the president of the Columbia County Transportation and Maintenance Workers Association. He met with the group at the Transportation Department on that day. Authorization cards were notarized at the meeting. Taylor approached Adams and Williams thereafter and informed Adams that
he should not go back to the Transportation Department for any reason and that he should keep away from association activities. He further stated that union business got people "ticked off" and upset and not to engage in it any further (Testimony of Adams, Williams).
Prior to the above conversation, Taylor, on April 21, 1975, had rendered an annual employee performance evaluation on Adams wherein he rated him as "very satisfactory-substantially exceeds all requirements". This was the second highest evaluation which could be made on an employee. He also at that time recommended him for reappointment for the 1975-76 school term. Taylor's 1974 evaluation of Adams also had been in the second highest bracket with his major strength listed as "promotes unity with the Maintenance Department personnel." Although Adams had an excellent working relationship with Taylor on April 21, 1975, he and Williams testified that after the April 28th incident, Taylor started questioning everything that they did. Taylor, on the other hand, testified that, although the 1974 performance evaluation was basically accurate, he had experienced problems with Adams' attitude and gave him an inflated evaluation on April 21st, hoping that it would influence him to improve and have better relationships within the Department. However, at that time; he was of the opinion that Adams' work performance was perfectly satisfactory. Shortly after that, he sent Adams to an elementary school to repair a freezer. Although Williams worked on the unit, Adams concurred in his judgment as to the problem which later proved to be incorrect. Taylor was of the opinion that they had lied to him concerning the work required, although the evidence supports a finding that they were merely mistaken. The evidence, however, also supports a finding that there had been a number of problems with refrigeration units during the 1975 spring term that were due, in some respect, to an inefficient method of ordering parts by others and also because many compressors had to be replaced. About four years previously, the school system had purchased a rather large amount of refrigeration equipment. These same problems had been in existence prior to Adams' tenure with the school system (Testimony of Taylor, Adams, Williams, Watts; Exhibit 5 & 6.)
On May 8, 1975, Taylor wrote to Phillips recommending that the Refrigeration Department be reduced to one man, a Refrigeration Mechanic II (a lower grade than mechanic I), with major problems to be handled by utilization of local contractors. The letter pointed out the difficulties that had been encountered and expressed dissatisfaction with the attitude and competence of the Refrigeration Mechanic I (Adams). In effect, this letter
reversed Taylor's prior recommendation that Adams be rehired for the ensuing school year (Exhibit 4.)
On or about May 12, 1975, Williams, who was assisting Adams in employee organization work, talked to the president of the secretaries association of the school system at her house concerning the subject of organization. He could not answer all of her questions and it was arranged that Adams would meet with the secretaries the following day. He did so in the school library at 4:15 p.m. after working hours. The next day it was reported to the executive secretary for the school board that Adams had told the group they would have difficulties in securing job benefits unless they were organized. She believed this information was erroneous and had Adams call her on the telephone. He declined to discuss the subject during working hours. Phillips had planned to have a meeting with Taylor and Adams that morning at 9:45 a.m. When he came into the office, the executive secretary told him of her discussion with Adams and he told her that he had had complaints in the Maintenance Department and was going out there to see what the problem was. He was concerned that the maintenance personnel were playing "catch-up" rather than preventing maintenance problems from arising in the first place. These problems had occurred in all areas of the Maintenance Department, including refrigeration work. At the meeting that morning, Phillips informed Taylor that he was suspended because of maintenance complaints, Williams was suspended for incompetence and Adams because of committing an unfair labor practice for allegedly speaking to the secretarial group on school time. At this time, Phillips told Adams that the School Board was not ready for collective bargaining that year, but maybe the next year. Adams informed him that he would continue to engage in employee organization, and Phillips stated that "Well, if you don't cease, you and all personnel involved in this association will all be fired and we will hire new personnel." In spite of Phillips' statements concerning suspension, he informed the employees that he would let them know by that Friday what he was going to do in regard to their status. He did not pursue the question of suspension any further and, as a result, Adams filed an unfair labor practice charge against the school board on May 20, 1975 (Testimony of Adams, Mock, Williams, Wilson, Taylor, Phillips.)
Respondent's method of extending the employment of non- instructional personnel was for the superintendent to confer with the department head and, if he concurred in the department head's recommendation as to an employee, the matter would be presented to the Board of Public Instruction for approval. No contracts were involved for such employees, but Respondent operated normally on a
school year basis from July 1 to June 30 as the term of employment.
Phillips testified that, in May of 1975, he was reevaluating the need for support personnel and decided to look into the possibility of procuring services by contract with commercial firms. He was particularly unsatisfied with the Maintenance Department and disruptions that had occurred therein. He dispatched a letter on May 23 to Adams advising him that his name did not appear on the list of recommendations for reappointment at that time, but that he might be recommended at a later date should a position become available in his field. Since Phillips had until June 30th to make final decisions concerning rehiring of personnel, he investigated and determined that contract services were not feasible and therefore decided to stay with an "in-house" maintenance program. However, in view of the May 8th letter from Taylor concerning Adams, and the problems in refrigeration that had been occurring in the Spring, he recommended to the Board of Education that Adams not be continued as an employee. Nine of the eleven employees in the Maintenance Department received the same letter from Phillips, but Adams was the only one of that group who was not rehired. Adams never received anything further in writing on the matter and was not shown Taylor's letter of May 8 at that time (Testimony of Phillips, Adams, Exhibit 3.)
Although the Board did not have a formal system for grievances or appeal of dismissals, Adams was accorded a hearing before the Board on July 10. This was prompted by his discussion with a school board member who showed him Taylor's May 8 letter for the first time and advised him to ask for a hearing before the Board. At the hearing, Adams was given an opportunity to respond to the allegations contained in Taylor's letter except as to Item
10 concerning work orders of which he had no knowledge. The hearing was then continued until July 24th in order to provide Adams more time for his defense. During this period, he secured letters attesting to his good work and cooperative attitude from nine principals of various schools in Columbia County. At the July 24th board meeting, Adams was confronted with a July 21st revision of Taylor's May 8th letter that was rewritten in order to eliminate "inconsistencies" which had appeared in the June 8th letter. The later letter added an allegation that Adams had gone into the Maintenance Department personnel files without Taylor's permission while Taylor was on vacation. This allegation stemmed from an incident in early June when Adams and Williams went into an open file cabinet in the Maintenance Department that was used to store secondary personnel files as well as work orders and
manuals, and extracted a copy of their latest evaluation reports. Although they did not seek authorization for this, they informed the acting supervisor that they had obtained what they had gone in for. (Testimony of Adams, Williams, Murdock; Exhibit 3, Composite Exhibit 7, Exhibit 8.)
Adams was given an opportunity to present matters at the July 24th Board meeting and the Board voted to support the superintendent's recommendation that he not be rehired.
Subsequent to Adams' dismissal, Williams had taken his place for a short period of time and thereafter a new man was hired. Problems with refrigeration equipment have been minimal during the past year, it having been discovered that the wrong type of gas had been used in replacement compressors in the past (Testimony of Taylor, Watts, Williams, Martin.)
Respondent has drawn unemployment insurance of $82.00 a week since October 1, 1975. Although he registered with the Florida State Employment Service for a position as a commercial air conditioner and refrigeration mechanic, there have been no jobs of that nature offered to him in the area where he resides (Testimony of Adams.)
CONCLUSIONS OF LAW
The alleged unfair labor practice charges are defined in Chapter 447, Florida Statutes as follow:
447.501 Unfair Labor Practices
Public employers or their agents or representatives are prohibited from:
Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
Encouraging or discouraging membership in any employee organization by discrimi- nation in regard to hiring, tenure, or other conditions of employment."
The gist of the unfair labor practice charges is that Jack W. Adams was not rehired at the close of the 1975 school year because of his activities as president of Columbia County Transportation and Maintenance Workers Association, thus resulting in discrimination in regard to tenure and, in effect, discouraging others from becoming members of that organization. Respondent's contention is that Adams' labor activities did not influence his
failure to be rehired and that the sole reason for same was his bad attitude and incompetence as an employee.
Section 447.503(4)(d) provides that a discharged employee shall not be reinstated if he was discharged for cause. In this regard, the evidence shows that Adams had been considered by his superiors to be a competent refrigeration mechanic until about December, 1974 at which time complaints of difficulties with freezer equipment were received. Adams was criticized on occasion for his tendency to wait for trouble to start and then replace old with new equipment rather than to diagnose potential problems in advance. His answer to this was that he had done his best to maintain somewhat old equipment in a serviceable condition in accordance with the instructions of his supervisor, Taylor, and that much of the difficulty arose from inefficiency in the ordering and receipt of replacement parts which was not his responsibility. The fact that he and his apprentice had improperly diagnosed the condition of one compressor hardly justifies a determination of poor performance. However, evidence that he apparently had been using the wrong type of gas in new compressors, ostensibly under the mistaken belief that they should receive the same type as had the prior units indicates some negligence, but this was not ascertained until after he had been separated from employment. Although his supervisor had felt that his attitude was poor, this is considered to have resulted primarily from a personality conflict rather than by any substantial fault of Adams. Several witnesses testified as to his good behavior, and the fact that he was able to obtain favorable statements from the school principals as to his friendly and cooperative attitude is significant. When coupled with the fact that Taylor had given him high performance evaluations as late as April 21, 1975 and recommended him for rehire, it must be concluded that the factors of attitude and performance of duty were not the effective cause of his dismissal. It is note-worthy that Taylor's change of position, as evidenced by his letter of May 8 to Superintendent Phillips recommending that Adams not be continued, came a short time after Adams' election as president of the employee organization and the altercation with Taylor concerning union activities. Although both Taylor and Phillips disclaimed the fact that Adams organizational activities had any influence on their failure to nominate and recommend him for continued hire, the facts justify a contrary view. This is evidenced by Phillips's statements concerning labor unions at his meeting with Adams in September, 1974, and his purported suspension of Adams for an alleged unfair labor practice in speaking to the secretary group in May, 1974, which, in fact, was unwarranted. The statements of Phillips at that time can lead to
no other conclusion than that he was adamantly opposed to the prospect of collective bargaining and looked upon Adams as a "thorn in his side". Although no bad faith can be ascribed to the members of the school board by their support of the superintendent's recommendation against rehire of Adams, it is obvious from their testimony that they felt friction in the Maintenance Department had resulted in lowered efficiency and they were not disposed to disturb the recommendation of the highest school official in the county. Also of significance is the fact that Adams alone of the nine maintenance employees who received preliminary letters indicating that they would not be rehired was, in fact, the only employee who was not retained. In sum, the evidence supports the proposition that the failure to rehire Adams was primarily the result of his activities with the employee organization, and it is thus concluded that the Respondent, through its supervisory employees Phillips and Taylor, has committed the unfair labor practices, as alleged in the Complaint. There can be no doubt that the discriminatory removal of Adams under the circumstances stated above would tend to discourage others from seeking leadership positions in Petitioner organization for fear the same fate might befall them. Thus, the natural consequence of the employer's action is to discourage union activity and membership.
The violations of Section 447.503(1)(a) & (b) by the Respondent warrant remedial action in the form of a cease and desist order to Respondent and reinstatement of Jack W. Adams with back pay, plus 6 percent interest per annum, less amounts received from state governmental sources during the period from July 1, 1975 to date of reinstatement.
That the Public Employees Relations Commission issue an order requiring the Columbia County Board of Public Instruction to cease and desist from unfair labor practices as defined in Section 447.501(1)(a) & (b), Florida Statutes, with respect to the Columbia County Transportation and Maintenance Workers Association, and to take prompt action to reinstate Jack W. Adams as a Refrigerator Mechanic I with back pay from July 1, 1975 to date of reinstatement, plus interest at 6 percent per annum, less amounts the aforesaid individual has received from state governmental sources during the stated period.
Done and Entered this 7th day of June, 1976, in Tallahassee, Florida.
THOMAS C. OLDHAM
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Thomas W. Brooks, Esquire 2003 Apalachee Parkway
Suite 300
Tallahassee, Florida 32301
Terry McDavid, Esquire
Box 1328
Lake City, Florida
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
PUBLIC EMPLOYEES RELATIONS COMMISSION
COLUMBIA COUNTY TRANSPORTATION AND MAINTENANCE WORKERS ASSN.,
Charging Party,
and CASE NO. 8H-CA-754-2064
DOAH CASE NO. 75-2106
COLUMBIA COUNTY BOARD OF PUBLIC INSTRUCTION,
Respondent.
/
DECISION AND ORDER
Upon charges filed by the COLUMBIA COUNTY TRANSPORTATION AND MAINTENANCE WORKERS ASSOCIATION, Charging Party herein, the Acting General Counsel of the Public Employees Relations Commission, hereinafter Commission, issued a complaint in the afore-captioned case against the COLUMBIA COUNTY BOARD OF PUBLIC INSTRUCTION,
Respondent herein. 1/ Copies of the charge .2/ and the Complaint and Notice of Hearing were duly served upon the Respondent and the Charging Party. 3/ The Complaint alleges that the Respondent failed to rehire Jack W. Adams at the end of the 1975 school year because of his activities as president of the Charging Party and thereby violated Sections 447.501(1)(a) and (b) of Chapter 447, Part II, Florida Statutes (1975), hereinafter the Act. While the Respondent did not file an answer, it at all stages of the proceedings herein denied the substantive allegations of the complaint.
The case was tried on March 2 and 3, 1976, 4/ and the Hearing Officer's Report issued on June 7, 1976. Thereafter, the case was scheduled before the Commission on August 3, 1976. 5/
The Commission has considered the Record, and the Hearing Officer's Report and hereby affirms his ruling and adopts his findings of fact and recommendations.
FINDINGS OF FACT
Jurisdiction
The Respondent, COLUMBIA BOARD OF PUBLIC INSTRUCTION, has its principal place of business located at Lake City, Florida, where it is engaged in operating a school system. 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 the general electorate.
We find, on the basis of the foregoing, that the Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act.
At all times material herein, the Charging Party has sought to represent all full-time employees of the Maintenance and Transportation Departments except the coordinator of maintenance and the coordinator of transportation, with respect to wages, rates of pay, hours of employment and other terms and conditions of employment. Accordingly, we find that the Charging Party, is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act.
The Unfair Labor Practice
Jack W. Adams was employed on July, 1973, by the Respondent as a Refrigeration Mechanic I in the Maintenance Department of the Columbia County School System. During the early stages of Adams' employment, he eliminated many of the existing problems with the air-conditioning and refrigeration equipment of the school system and improved the general state of that equipment. His first supervisor, Olen Stalnaker, was the coordinator of the combined maintenance and transportation department. During this period, there were no complaints about the quality of Adams' work or his attitude on the job. Soon thereafter, the Maintenance and transportation Departments were separated, and Ulis Taylor, who had been the lead man in the Maintenance Department, became Coordinator of Maintenance.
Adams' initial involvement in concerted employee activities began in August, 1974, when some Maintenance Department Employees questioned him about the possibility of establishing a civil service system for School Board employees. Adams' voluntarily obtained information regarding the establishment of such a system and conveyed that information to his fellow employees. The employees were not interested in pressing for the establishment of such a system at that time. As a result, Adams dropped the subject.
In September, 1974, during a meeting with Adams on another matter, Dr. Frank Phillips, Superintendent of Schools of Columbia County, informed Adams that the School Board was disturbed about Adams' discussion with fellow employees regarding the civil service system and said that Adams should refrain from any similar activities in the future. Adams did refrain from engaging in any such activities until April 28, 1975, when a group of school bus drivers approached him and requested that he become president of the Columbia County Transportation and Maintenance Workers Association, which was being organized for the purpose of collective bargaining. An organizational meeting was held in the Transportation Department that day and Adams accepted the presidency of the Charging Party. Later that day, Adams' supervisor, Ulis Taylor, approached him and his assistant, Henry Williams, and said that Adams should not go back to the Transportation Department for any reason and that he should keep away from association activities. Taylor further indicated that union business got people "ticked off" and upset and not to engage in such activity any further.
Prior to the above conversation, Taylor, on April 21, 1975, had rated Adams as "very satisfactory - substantially exceeds all requirements" on the annual employee evaluation form and at the same time recommended Adams for reappointment for the 1975-76 school year. In 1974, Taylor had also evaluated Adams highly stating that Adams' major strength was that he "promotes unity with the maintenance department personnel." Taylor testified that the 1974 evaluation was basically accurate, and that as of April 21, 1975, he was of the opinion that Adams' work performance was perfectly satisfactory. However, Taylor also stated that he had experienced problems with Adams' attitude and gave him an inflated evaluation on April 21, 1975, hoping that it would influence Adams to improve and have better relationships within the department.
Although he had an excellent working relationship with Taylor on April 21, 1975, both Adams and Williams testified that
after the April 28th incident, after the organizational meeting, Taylor began constantly questioning their work performance. For example, the Hearing Officer found that Taylor inaccurately accused Adams of lying to him concerning a problem with a refrigeration unit on which Williams had worked. Adams had merely deferred to Williams' judgment, which subsequently proved to be misinformed, as to the problem with the unit.
During the spring term of 1975, a number of problems arose with the refrigeration equipment in the school system. The Hearing Officer found that many of these problems were due in some respect to an inefficient method of ordering parts by Taylor and others. Also, breakdowns occurred due to the age of many compressors which were in operation.
On May 8, 1975, Taylor wrote to Dr. Phillips recommending that the refrigeration department be reduced to one man, a Refrigeration Mechanic II, with major problems to be handled by a sub-contractor. The letter pointed out the difficulties that had been encountered with the refrigeration equipment and expressed dissatisfaction with the attitude and competence of Adams. In effect, this letter reversed Taylor's prior recommendation that Adams be rehired for the ensuing school year.
At the request of the president of the School Board Secretaries Association, Adams attended a meeting of their group on or about May 12, 1975, and answered questions regarding collective bargaining. The meeting took place in the school library at 4:15 p.m., after working hours. After receiving complaints from his secretary about alleged statements by Adams at the secretaries' meeting, which she did not attend, Dr. Phillips called Adams to a previously arranged meeting with Taylor that morning at 9:45 a.m. in the Transportation Department. Upon entering, Phillips informed Taylor that he was suspended for incompetence and informed Adams that he was suspended for committing an unfair labor practice, allegedly for speaking to the secretarial association during working time. Phillips went on to say, "the Board is not ready for collective bargaining this year, maybe next year," and "if you don't cease, you and all personnel involved in this association will be fired and we will hire new personnel." This conversation was overheard in part by other employees in adjoining rooms.
Since he was never officially notified of whether he was actually suspended, Adams filed an unfair labor practice charge against the Respondent on May 20, 1975.
On May 23, 1975, Phillips sent all maintenance department employees, including Adams, a letter advising them that their names did not appear on the list of recommendations for reappointment at that time but they might be recommended at a later date should a position become available in their field. Phillips testified that at that time, he was considering subcontracting out maintenance work for the school system. However, prior to June 30, 1975, Phillips determined that subcontracting of maintenance work was not feasible and he recommended the rehire of all maintenance department employees except Adams even though there was no one else placed in Adams' position. Ostensibly, Adams was not recommended for rehire because of the May 8, 1975, letter from Taylor concerning Adams.
After learning that the other maintenance employees had been recommended for rehire, Adams approached a School Board member on June 11, 1975, and learned for the first time of Taylor's letter of May 8, 1975. Thereafter at the suggestion of the School Board member, Adams requested a hearing before the School Board on June 12, 1975. No hearing was held prior to June 30, 1975, and Adams' employment terminated on that date.
Adams' request for a hearing was granted and hearings before the School Board were held on July 10 and 24, 1975, during which Adams was given an opportunity to respond to the allegations in Taylor's May 8, 1975, letter. However, prior to the July 24, 1975, hearing, a second letter from Taylor dated July 21, 1975, was substituted for the May 8 letter. The July 21 letter was a revision of Taylor's May 8 letter which attempted to eliminate the inconsistencies which had appeared in the May 8 letter. The July
21 letter also added an allegation that had not been contained in the May 8 letter. Adams was given an opportunity to present matters in his defense at the July 24 School Board meeting. He was handed the July 21 letter and expected to respond to it on first reading. After the School Board voted to support Phillips' recommendation that Adams not be rehired Williams replaced Adams for a short period and thereafter a new man was hired.
DISCUSSION AND ANALYSIS
At the outset, it should be noted that the Commission did not allow the Respondent to present oral argument in opposition to the findings of fact and conclusions of law of the Hearing Officer at the August 3, 1976, meeting hearing as the Respondent failed to timely file any exceptions to the Hearing Officer's Report. Fla. Admin. Code Rule 8H-4.16 requires that a
party excepting to the Hearing Officer's Report file a brief in support thereof with the Commission within ten working days from the receipt of notification from the Hearing Officer that the record has been transferred to the Commission. The Respondent filed no such brief. In addition, Section 120.57(1)(d)(8), Florida Statutes (1975) provides that the Commission must allow each party at least ten days in which to submit written exceptions to the recommended order of the hearing officer. No such exceptions were submitted by the Respondent. Not having been put on notice that any party would dispute the findings of fact or the conclusions of law of the Hearing Officer, the Commission is not disposed to and, indeed, is under no obligation to hear oral argument in such circumstances.
Section 447.501(1)(b) of the Act provides that:
Public employers or their agents or repre- sentatives are prohibited from:
(b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other condi- tions of employment.
In order to establish that an employer has violated this section of the Act, it must be shown that the employer's actions had the effect of encouraging or discouraging membership in an employee organization by means of discrimination. Pasco County Classroom Teachers Association v. School Board of Pasco County, Case No. 8H- CA-754-1037 et seq., PERC Order No. 76U-875 (1976). 6/
Section 447.501(1)(b) of the Act is virtually identical to 28 U.S.C. Section 158(a)(3)(1975), Section 8(a)(3), its counterpart in the National Labor Relations Act, hereinafter NLRA. The same policy considerations supporting these provisions underlie both the NLRA and the Act. Section 8(a)(3) of the NLRA was devised to "insulate employees' jobs from their organizational rights." Radio Officer's Union v NLRB, 347 U.S. 17, at 40, 33 LRRM 2417 (1954). There is no intent to circumscribe the normal rights of an employer to operate its business. Quite the contrary is true, as the Supreme Court of the United States stated in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 8 LRR Man. 439 (1944):
Protection of the workers' right to self- organization does not curtail the appro- priate sphere of managerial freedom; it furthers the wholesome conduct of business enterprise. Id., 8 LRR Man. at 441.
Moreover, activity in a labor organization will not act as a guarantee of tenured employment if good cause exists to justify the discharge or other action taken against an employee in regard to hiring, tenure, or other conditions of employment.
To determine whether a violation of Section 447.501(1)(b) has occurred, an examination of the employer's motivation underlying the alleged discriminatory conduct must be undertaken. If such examination reveals that the employer has, in fact, illegally discriminated against an employee, it must be determined that such discrimination was motivated by anti-union sentiments. Radio Officer's Union, supra. Therefore, it is well settled that the employer must first have some knowledge that organizational activity is occurring and the employee in question is taking part in such activity. See NLRB v. Shen-Valley Meat Packers, 211 F.2d 289 (4th Cir. 1954). Without such knowledge no proscribed motivation could possibly exist.
However, it is not logical to always require specific proof of such prohibited intent. When the natural consequences of the employer actions tend to encourage or discourage membership in an employee organization, the employer will be presumed to have intended such consequences which justifiably and foreseeably flow from its actions. See NLRB v. Erie Resistor Corp, 373 U.S. 221,
53 LRRM 2121 (1963), Radio Officer's Union, supra.
It is the responsibility of the Commission to make a determination of the Employer's actual motivation in the alleged discriminatory behavior. Discrimination must be proven by a preponderance of the reliable, relevant and substantial evidence in the record. See, City of Albany and Albany Professional Permanent Fire Fighters Association, 3 PERB 4507 (N.Y. PERB 1970). See also, NLRB v. West Point Mfg. Co., 245 F.2d 783 (5th Cir. 1957) and Section 10(c) of the NLRA. The circumstances surrounding the alleged misconduct, the inferences to be drawn from testimony and actions evidenced in the record, and the soundness of these allegations when tested against such circumstances and inferences shall be the primary focus of the Commission's determination in discrimination cases. Thus, it is the responsibility of the Commission to weigh the record evidence and determine whether the reasons offered by an employer in support of its actions were actually motivated by legitimate business considerations, or whether the reasons given are merely pretextual in nature.
Applying these principles to the facts of this case, Respondent's contention that Adams was not rehired because of his bad attitude and incompetence is not persuasive. On the contrary, we agree with the Hearing Officer that "the evidence supports the proposition that the failure to rehire Adams was primarily the result of his activities with the employee organization "
In reaching this decision we note that it is of no consequence that there may have existed other reasons for failing to rehire Adams. We agree with and adopt the rationale expressed by the Supreme Court of the State of Wisconsin in Muskego-Norway Consolidated Schools v. NLRB, 151 N.W. 2d 617, 627 (Wisc. 1967), that:
The issue before us is not, of course, whether or not there exist grounds for discharge of these employees apart from their union activities. The fact that the employer had ample reasons for dis- charging them is of no moment. It was free to discharge them for any reason, good or bad, so long as it did not dis- charge them for union activity. And even though the discharge may have been based upon other reasons, as well, if the employer were partly motivated by union activity, the discharge was in violation of the Act. 7/
Consequently, it is sufficient to establish a violation of Section 447.501(1)(b) to find that Adam's organizational activities were but one reason for the failure of the Respondent to rehire him.
An analysis of the record evidence in this case clearly establishes that agents of the Respondent had direct knowledge of Adams' organizational activities. On April 28, 1975, after the initial organizational meeting of the Charging Party, Taylor advised Adams and Williams that they should refrain from engaging in association activities and that continuing such activity might result in the loss of their jobs. Likewise, Phillips, the Superintendent of Schools, demonstrated his knowledge of Adams' organizational activities on May 13, 1975, when he informed Adams that if he did not cease his organizational activities he and all personnel involved in the association would be fired. Although there is no evidence to establish when the members of the School Board obtained actual knowledge of Adams' organizational activities, such proof is unnecessary since the knowledge and motivation of Respondent's agents is imputed to the Respondent.
Pasco County Classroom Teachers Association v. Pasco County School Board, supra, citing Alabama Marble Co., 85 NLRB 1047, 24 LRRM 1179 (1949), enforced 185 F.2d 1022 (5th Cir. 1951), cert. denied
342 US 823 (1951), and MacDonald Engineering Co., 202 NLRB 748, 82 LRRM 1646 (1973).
In addition to establishing knowledge, the respective statements of Taylor and Phillips regarding Adams' organizational activities provide direct evidence of their intent to discourage membership in the employee organization. While both Taylor and Phillips gave self-serving testimony that indicated Adams' organizational activities had no influence on their failure to recommend Adams for rehire, the Hearing Officer is correct in stating that, "the facts justify a contrary view". It is a well- settled principle of law that the credibility findings of a Hearing Officer will be affirmed unless a clear preponderance of all relevant evidence militates against such a finding. See, Standard Dry Wall Products, Inc., 91 NLRB 544, 26 LRRM 1531 (1950). No such evidence exists in this record.
Section 447.501(1)(a) of the Act prohibits public employers from "[i]nterfering with, restraining or coercing public employees in the exercise of any rights guaranteed them under this part". Public policy mandates that the rights to self- organization for the purposes of collective bargaining be protected. Statements of the tenor of those made by the Superintendent of Schools and the discriminatee's immediate supervisor fly in the face of these protections. They constitute separate and independent violations of Section 447.501(1)(a) of the Act. Hence, the statements credited by the Hearing Officer have a coercive effect on the exercise of rights protected by the Act.
The conclusion that the Respondent's action was based on union animus finds ample support in the record. Both Taylor's change of his evaluation and recommendation for rehire of Adams and Phillips' comments on May 13, 1975, came within a month of Adams' election as president of the Charging Party. The timing of an employer's discriminatory conduct is clearly an appropriate criteria for the evaluation of the employer's motivation. See NLRB v. Berggren & Sons, Inc., 406 F.2d 239, 70 LRRM 2338 (8th Cir. 1969). Additionally, the shifting explanations given for the discharge, such as, the discharge, such as, Taylor's revocation of his evaluation of Adams and the subsequent revision of the May 8, 1975, letter on July 21, 1975, after Adams had attempted to refute the reasons contained in the May 8 letter, creates a strong
inference of anti-employee organization motivation. See Rockingham Sleepwear, Inc., 190 NLRB 472, 77 LRRM 1367 (1971).
These facts are augmented by the Hearing Officer's finding that of the nine maintenance employees receiving letters indicating that they might not be rehired, only Adams was not subsequently reemployed. Finally, the failure of the Respondent to warn or reprimand Adams prior to using his alleged incompetence as a reason for not rehiring him creates an inference that the employer's alleged reasons are merely a pretext to cover an illegal motive. E.g. NLRB v. Montgomery Ward Company, 242 F.2d 497, 39 LRRM 2685 (2d Cir. 1957); Pennsylvania Labor Relations Board v. Friedberg, 395 PA 294 (PA Comm. Ct. 1960).
The record amply establishes that the Respondent School Board was fully aware of Taylor's conflicting evaluations of Adams and the shifting reasons given by Taylor for his actions at the time Phillips recommendation not to rehire Adams was upheld. Thus the Respondent simply adopted the tainted recommendations of Phillips and Taylor. The Hearing Officer is correct in concluding that the fact that Adams was able to present documentary evidence of his good work attitude at the School Board hearing is significant. However, under those circumstances the Commission need not be concerned with absolving the Respondent from responsibility for the acts of its agents, particularly when Respondent was actually aware or should have been aware of the highly questionable nature of its agents' allegations. Indeed, to do so would substantially emasculate the protection afforded by Section 447.501 (1)(b).
Having found that the Respondent possessed the requisite anti-employee organization motivation, we embrace the Hearing Officer's finding that:
There can be no doubt that the discriminatory removal of Adams under the circumstances [of this case] would tend to discourage others
from seeking leadership positions in petitioner (sic) organization for fear the same fate might befall them. Thus, the natural consequence of the employer's action is to discourage union activity and membership. 8/
Consequently, we find that the Respondent violated Section 447.501(1)(a) and (b) of the Act by failing to rehire Jack W. Adams because of his activities on behalf of the Charging Party.
CONCLUSIONS OF LAW
The Commission, on the basis of the foregoing facts and the entire record, makes the following conclusions of law.
The Columbia County Board of Public Instruction is a public employer within the meaning of Section 447.203(2) of the Act.
The Columbia County Transportation and Maintenance Workers Association is an employee organization within the meaning of Section 447.203(10) of the Act.
Since on or about July, 1973, up to and including June 30, 1975, Jack W. Adams was a public employee within the meaning of Section 447.203(3) of the Act.
On or about April, 1975, and continuing thereafter, Adams engaged in employee organization-related activities designed to acquaint fellow employees of Respondent with the benefits of organizing and collective bargaining on behalf of the Charging Party.
At all times material herein, Dr. Frank Phillips and Ulis Taylor have been and are now agents of the Respondent acting on its behalf and are managerial employees within the meaning of Section 447.203(4) of the Act.
By unlawfully threatening the discriminatee, the Respondent, through its agents, Dr. Frank Phillips and Ulis Taylor, did engage in conduct which interfered with, restrained or coerced public employees in the exercise of their rights guaranteed in Sections 447.301(1) and (2) of the Act, and did thereby commit unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Section 447.501(1)(a) of the Act.
By failing to rehire Jack W. Adams for the fiscal year 1975-76, the Respondent did interfere with, restrain and coerce its employees in the exercise of their rights guaranteed in Sections 447.301(1) and (2) of the Act, and did thereby commit unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Section 447.501(1)(a) of the Act.
By failing to rehire Jack W. Adams for the fiscal year 1975-76, the Respondent did discriminate in regard to hiring,
tenure or other terms and conditions of employment, thereby discouraging membership in the Charging Party, and Respondent did thereby commit unfair labor practices within the meaning of Section 447.501(1)(b) of the Act.
REMEDY
The Commission, having found substantial evidence that unfair labor practices have occurred, is required by Section 447.503(4)(a), Florida Statutes (1975) to issue a Cease and Desist Order and take such positive action as will effectuate the policies and purposes of the Act.
Having found that the Respondent engaged in certain unfair labor practices in violation of Section 447.501(1)(a) and
(b) of Act, we shall order that it cease and desist therefrom, and that it take certain affirmative actions set forth below to effectuate the policies of the Act.
We order Respondent to forthwith reinstate Jack W. Adams to his former or substantially equivalent position of employment and reimburse him for all back pay with interest at 6 percent per annum beginning on July 1, 1975, in accordance with the formula set forth in Pasco County Classroom Teachers Assn. v. Pasco County School Board, PERC Order No. 76U-875 (1976). 9/ We further order Respondent to comply with the posting requirements as hereinafter set forth in the order.
Pursuant to Section 447.503(4)(a) of the Act, the PUBLIC EMPLOYEES RELATIONS COMMISSION hereby ORDERS that the Respondent, COLUMBIA COUNTY BOARD OF PUBLIC INSTRUCTION shall:
Cease and desist from;
Threatening to discharge or in any other way discriminate against any employees for exercising their right to form, join, and participate in any employee organization of their choosing.
Discouraging membership in and activity on behalf of the Columbia County Maintenance and Transportation Workers Association by failing to rehire Jack W. Adams or discriminating against employees in any other manner in regard to their hire, or tenure of employment, or any terms and conditions of employment.
In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed under the Act.
Take such affirmative action as is necessary to effectuate the purposes of the Act:
Offer Jack W. Adams immediate and full reinstatement to his former or substantially equivalent position of employment without prejudice to his seniority or other rights and privileges, and reimburse him for all back pay with interest at 6 percent per annum as set forth in the section of this order entitled "Remedy".
Preserve and, upon request, make available to the Commission or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to determine the amount due as backpay.
Post in each of Respondent's school facilities in Columbia County, copies of the attached Notice marked "Appendix". 10/ Copies of said notice provided by the Public Employees Relations Commission shall be signed by the Respondent's authorized representative prior to posting and shall be posted by Respondent immediately upon receipt in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall maintain the posting for sixty days and shall take reasonable steps to ensured that the notices are not altered, defaced, or covered by other materials.
Notify the Chairman of the Commission in writing, within twenty calendar days from date of this decision, as to what steps have been taken to comply herewith.
It is so ordered.
For And By Direction Of The
PUBLIC EMPLOYEES RELATIONS COMMISSION
LEONARD A. CARSON CHAIRMAN
77U-81
ENDNOTES
1/ An investigation was conducted by a Commission agent pursuant to Section 447.503(1), Florida Statutes (1975) and Fla. Admin.
Code Rule 8H-4.02(a). Thereafter the Complaint was issued by the Acting General Counsel pursuant to Fla. Admin. Code Rule 8H-4.03.
2/ The charge in Case No. 8H-CA-754-2064 was filed on June 11 1975. Copies of all charges were served on the Respondent by the General Counsel on June 20, 1975.
3/ Pursuant to Fla. Admin. Code Rule 8H-4.03, the Complaint was issued on February 16, 1976.
4/ On February 13, 1976, the parties were notified that a hearing would be held pursuant to Section 447.503(3)(a), Florida Statutes (1975) and Fla. Admin. Code Rules 8H-4.03, 4.08 and 4.10. Such a hearing was held before a Hearing Officer from the Division of Administrative hearings. At the hearing, the parties were afforded the opportunity to appear, examine and cross-examine witnesses and to introduce relevant evidence.
5/ On July 19, 1976, the parties were notified that a proceeding would be held pursuant to Section 447.503(4) , Florida Statutes (1975) and Fla. Admin. Code Rule 8H-4.17. On August 3, 1976, such a proceeding was held before the Public Employees Relations Commission. At this time, the parties were afforded the opportunity to appear and present oral argument in support of their timely filed exceptions and briefs.
6/ The fact that the employee in this case was not discharged, but rather simply not rehired presents no problem. Section 447.501(1)(b) of the Act speaks to "discrimination in regard to hiring . . . ." See e.g., NLRB v. Melrose Processing Co., 351 F.2d 693 (8th Cir. 1965)
7/ It is noted that the Court was interpreting Section 111 70(3)(g), Wisc. Stat. which is identical to Section 447.501(1)(b) of the Act. We note also that this is the generally accepted approach, followed by the National Labor Relations Board and the State of Michigan. E.g., NLRB v. The Great Eastern Color Lithographic Corp., 309 F.2d 352 (2d Cir. 1962); and, In the Matter of Huron River Hunting and Fishing Club, VII-a MERC 846 (1971).
8/ Employer conduct which is inherently destructive of employee rights and has as its natural consequence the discouragement of union activity and membership can be violative of Sections 447.501(1)(b) of the Act even absent proof of anti-union motivation. See e.g., NLRB v. Great Dane Trailers, 388 US 26, 65 LRRM2465 (1967). Since there is ample record evidence of the
Respondent's anti-union motivation in this case, it is unnecessary to decide whether the Respondent's conduct is also inherently destructive of employee rights.
9/ During the August 3, 1976, Commission hearing, a dispute arose regarding whether unemployment compensation payments received by the discriminatee Adams should be deducted from the back pay award. We find it unnecessary and undesirable to resolve this question without a complete factual record.
10/ In the event that the Commission's Order is enforced by a judgment of the District Court of Appeal, the words in the Notice reading, "posted by order of the Public Employees Relations Commission" shall be altered to read "posted pursuant to a judgment of the District Court of Appeal enforcing an order of the Public Employees Relations Commission".
VOTE: For: Chairman Curtis L. Mack,
Commissioner Rose Mary Filipowicz, Commissioner M. Kalman Gitomer
Against: None
THIS IS TO CERTIFY that on
February 4th, 1977
this document was filed in the office of the Public Employees Relations Commission at Tallahassee, and a copy served on each party at its last known address by certified mail.
PUBLIC EMPLOYEES RELATIONS COMMISSION
BY:
Judy N. Callins DEPUTY CLERK
title
| Issue Date | Proceedings |
|---|---|
| Jun. 03, 1977 | Final Order filed. |
| Jun. 07, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1977 | Agency Final Order | |
| Jun. 07, 1976 | Recommended Order | Respondent is guilty of unfair labor practices and must reinstate discharged worker with back pay and interest. |
