STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY BOARD OF )

COUNTY COMMISSIONERS, )

)

Respondent, )

)

vs. ) CASE NO. 76-387

) PERC NO. 8H-CA-752-0126 TEAMSTERS, CHAUFFEURS, ) 8H-CA-752-0190 WAREHOUSEMAN AND HELPERS, )

LOCAL NO. 385, )

)

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 June 30, and July 1, 1976, in Ocala, Florida.

The following appearances were entered: Rodney Smith, Tallahassee, Florida, for the Acting General Counsel of the Public Employees Relations Commission; and Robert S. Ryder, Ocala, Florida, and H. Victor Hansen, Atlanta, Georgia, for the Respondent, Marion County Board of County Commissioners.

On or about September 25, 1975, the Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385 ("Teamsters" hereafter) filed an unfair labor practice charge against the Marion County Road Department. The basis of the charge was that Joseph W. Fortier was fired from his position with the Marion County Road Department due to his labor union organizing activities. On or about December 8, 1975, the Teamsters filed an unfair labor practice charge against the Marion County Road Department alleging that Robert Merklein was discharged from his employment with the Marion County Road Department as a result of union organizing activity. On March 26, 1976, the Acting General Counsel for the Public Employees Relations Commission issued a Complaint and Notice of Hearing (Hearing Officer's Exhibit 1). The Complaint is based upon the same matters alleged in the charges, and expands thereon. On the same date the Acting General Counsel issued a Consolidation Notice, consolidating the two unfair labor practice charges for the purposes of the hearing (Hearing Officer's Exhibit 2). The hearing was scheduled to be conducted on April 12 and 13, 1976. A Motion for Continuance was filed (Hearing Officer's Exhibit 3), a continuance was granted (Hearing Officer's Exhibit 4), and the hearing was rescheduled to be conducted on June 30 and July, 1976 (Hearing Officer's Exhibit 5).

The Acting General Counsel called the following witnesses: Joseph Fortier, a former employee of the Marion County Road Department, Robert W. Merklein, a former employee of the Marion County Road Department, Tom W. Gay, an employee of the Marion County Road Department; Harley Taylor, an employee of the Marion County Road Department; Kenneth Giltner, an employee of the Marion County Road Department; Salvadore Lapira, a former employee of the Marion County Road Department; Ulysses Dennison, an employee of the Marion County Road Department;

and Charles M. Brakefield, the Director of Public Works for Marion County, Florida. General Counsel's Exhibits 1 and 2 were marked for identification but were neither offered nor received into evidence. The Respondent, Marion County Board of County Commissioners, called the following witnesses: Newton Strickland, an employee of the Marion County Road Department; Eastman Daniel McIntyre, an employee of the Marion County Road Department; Roy Thomas Bennett, an employee of the Marion County Road Department; James Burrell Hill, an employee of the Marion County Road Department; Melvin James Fairbairn, an employee of the Marion County Road Department; Carldon Lahey, an employee of the Marion County Road Department; Raymond Richard Wellhoner, an employee of the Marion County Road Department; Howard Muncy, the Warden of the Marion County Prison; Betty Vaught Townsend, an employee of the Marion County Road Department; Charles M. Brakefield; William Harmon Hall, an employee of the Marion County Road Department; and Bernard L. Hartenstein, an employee of the Marion County Road Department. Public Employer's Exhibits 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, and 14 were received into evidence at the hearing. Public Employer's Exhibits 3 and 9 were marked for identification but were neither offered nor received into evidence. Hearing Officer's Exhibits 1 through 5 were received into evidence at the hearing. The General Counsel and the Respondent have submitted Post Hearing Memoranda of Law.

FINDINGS OF FACT

1. The Marion County Board of County Commissioners ("Respondent" hereinafter) is a public employer within the meaning of Florida Statutes Section 447.203(2).

   
   

2. Joseph Fortier was formerly an employee of the Respondent and a public employee within the meaning of Florida Statutes Section 447.203(3).

   
   

3. Robert W. Merklein was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3).

   
   

4. The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10).

   
   

5. Joseph Fortier was hired by the Respondent on January 27, 1975, to work as a truck driver in the Respondent's road department. Fortier's supervisors were Harmon Hall, the Respondent's Road and Bridge Supervisor; and Charles M. Brakefield, the Respondent's Director of Public Works. During the time that he was employed by the Respondent Fortier demonstrated that he was a capable truck driver; however, several incidents came to his supervisors' attention which reflected upon Fortier's judgment. During the Spring of 1975, another truck driver, Roy Bennett, reported to Hall that he was driving his truck ahead of Fortier who was also driving a truck. Fortier was following so close behind Bennett that Bennett feared an accident and pulled off the road in order to allow Fortier to pass. In July, 1975, the Department's receptionist, Betty Townsend, received a phone call from a woman who reported that two of the Respondent's trucks had been observed racing on a busy street. From the description of the trucks Hall determined that Fortier had been driving one of them. Hall himself had observed Fortier tailgating other trucks, and had received other reports which indicated that Fortier may have been driving his vehicle recklessly. On September 9, 1975, Fortier was involved in an accident. The truck he was driving collided into the rear of a car at an intersection in Ocala. The police charged Fortier with following too closely, and after pleading not guilty he was adjudicated guilty of that charge. Harmon Hall conducted an investigation of the accident on behalf of the Respondent. Fortier

   had contended that the brakes on his truck failed and that the truck was overloaded. These contentions were not born out by the investigation. A similar load to that which Fortier was carrying on the date of the accident was placed on the truck, and it was found to be within the vehicle's weight limitations. Furthermore, the vehicle's brakes performed properly while it was fully loaded. It is possible that the tests conducted by the Respondent were inaccurate. The load on Fortier's truck could have been heavier than the test load. Efforts were made to duplicate the load, however, and Hall and Brakefield were justified in believing that Fortier may have been operating the vehicle in a careless manner when the accident occurred.

   
   

6. Late in the afternoon on Friday, September 19, Brakefield instructed Hall to summon Fortier to Brakefield's office. It was Brakefield's intention to discuss the unfavorable reports that he had received respecting Fortier's accident, and the various other reported incidents of reckless driving that he had received respecting Fortier. There was considerable conflict in the testimony respecting when Hall confronted Fortier. Quitting time was 4:30 p.m. At the latest Hall approached Fortier at 4:28 p.m. and told him that Brakefield wanted to see him. Fortier adamantly refused to go to Brakefield's office, saying that it was quitting time, and that his time was his own. Fortier told Hall to go to hell. Hall asked Fortier if that meant he was resigning and Fortier told him that it did not. Hall told Fortier that he was no longer employed with the Respondent. On Monday, September 22, the next working day following this confrontation, Fortier reported to work. Hall approached Fortier and told him that he was no longer employed. Fortier asked him why, and Hall reminded him of the confrontation of the previous Friday.

   
   

7. Joseph Fortier was discharged from his employment with the Respondent as a result of his refusal to meet with Brakefield on September 19, 1975. Both Brakefield and Hall were aware that Fortier was active in a union organizing campaign. There was no evidence offered at the hearing from which it could be concluded that Fortier's union activities motivated Hall and Brakefield in discharging him. The Respondent has had other truck drivers who have had accidents that were their faults, and who were not discharged; however, neither Brakefield nor Hall had even, prior to September 19, been confronted with a refusal to obey an order. It was this refusal that motivated them to discharge Fortier.

   
   

8. Robert Merklein was hired by the Respondent during September, 1974, to work as a truck driver in the Respondent's Road Department. Merklein was initially assigned to drive a large dump truck, but he was not able to operate that vehicle, and he was assigned to a smaller dump truck. In May, 1975, Merklein was assigned to haul lime rock. His truck got stuck in loose sand. He tried to get the truck out of the sand by applying power, which resulted in the drive shaft breaking. In October, 1975, Merklein was assigned to dump a load of lime rock into an area where there was soft sand. He got stuck in the sand. He tried to get the truck out of the sand by shifting into the lower gears and spinning the wheels. This made the truck rock back and forth; however, the axle snapped. Subsequent to this accident Harmon Hall reprimanded Merklein. Hall told Merklein "this one is on me, but the next one is on you." Hall instructed Merklein that if he got stuck in soft sand again he should wait for assistance and not apply power to the truck. Approximately one month later Merklein again got stuck in the sand. Again he tried to extricate Merklein again got stuck in the sand. Again he tried to extricate his truck by applying power in the lower gears and rocking the truck back and forth. The truck was stuck up to the axles, and the drive shaft broke. Shortly after this incident Merklein told Hall that he had made a mistake in trying to get the truck out of the sand

   rather than just leaving it. Investigation of the damaged truck, and the drive shaft confirmed that too much power had been applied to the vehicle while it was struck in the sand. On November 19, 1975, Merklein was called into Brakefiled's office and informed that he was discharged.

   
   

9. Other drivers had broken drive shafts, and had been at fault, but were not terminated. Only two other drivers had had as much difficulty with drive shafts as Merklein had, and each of these drivers resigned in anticipation of being terminated.

   
   

10. Robert Merklein was discharged from his employment with the Respondent because of driving errors that he had made which resulted in expensive damage to the Respondent's vehicles. Merklein's supervisors were aware that he was engaged in a union organizing campaign. Merklein's union activities formed no part in the decision to discharge him.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Florida Statutes Section 120.57(1).

    
    

12. The burden of proving that an unfair labor practice charge has been committed lies with the charging party, and with the General Counsel of the Public Employees Relations Commission. Rule 8H 4.08, Florida Administrative Code. Under the National Labor Relations Act it has been held that the National Labor Relations Board has the burden of proving that an employee was discharged because of union activity, and a finding that an employee was discharged for union activity cannot be based upon surmise or speculation. NLRB v. Comfort, Inc., 365 F.2d 867 (8 Cir. 1966).

    
    

13. Florida Statutes, Section 447.501 provides in pertinent part as follows:

    
    

    "(1) Public employers or their agents or representatives are prohibited from:

    1. Interfering with, restraining, or coercing public employees in

       the exercise of any rights guaranteed them under this part.

    2. Encouraging or discouraging membership in any employee organi- zation by discrimination in regard

       to hiring, tenure, or other conditions of employment."

       * * *

       
       

       Clearly under the quoted statute it would be an unfair labor practice for public employer to discharge a public employee because of the employee's union activity. National Labor Relations Board cases are instructive and provide persuasive authority. Even when valid grounds for dismissal exist, the courts have sustained NLRB findings of unfair labor practices where the evidence indicates that an employee's union activity was the actual reason for the discharge, or was one of the reasons for discharge. S.H. Healty v. NLRB, 435 S.2d 314 (10 Cir. 1970); Nachman Corp. v. NLRB, 337 F.2d 421 (7 Cir. 1964); NLRB

       v. Linda Jo Shoe Co., 307 F.2d 353 (5 Cir. 1962). While union activity cannot form the basis of a discharge, active unionists can be discharged for other

       reasons. Rocky Mountain Gas Co. v. NLRB, 326 F.2d 949 (10 Cir. 1964). An employer may discharge an employee for good reasons, or for bad reasons. So long as the discharge is not motivated by union activity the National Labor Relations Board has no authority to take action based upon it. NLRB v. Ogle Protection Service, 375 F.2d 497 (6 Cir. 1967), cert. den. 389 U.S. 843 (1967);

       NLRB v. O.A. Fuller Super Markets, 374 F.2d 197 (5 Cir. 1967).

       
       

14. The evidence presented in this does not establish that the Respondent committed any unfair labor practice.

    
    

15. The charges filed by the Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 385 against the Respondent, and the complaint filed by the Acting General Counsel of the Public Employees Relations Commission against the Respondent should be dismissed.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED as follows:

1. That the charge filed by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America against the Marion County Road Department of September 25, 1975 be dismissed.

   
   

2. That the charge filed by the Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385 against the Marion County Road Department on December 8, 1975 be dismissed.

   
   

3. That the complaint issued by the Acting General Counsel of the Public Employees Relations Commission against the Marion County Board of County Commissioners on March 26, 1976 be dismissed.

RECOMMENDED this 22nd day of October, 1976, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1976.

COPIES FURNISHED:

Rodney Smith, Esquire Public Employees Relations

Commission

2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Victor Hansen, Esquire

3500 1st National Bank Tower Atlanta, Georgia 30303

Stephen Ryder, Esquire Box 81

Ocala, Florida 32670

Docket for Case No: 76-000387

Orders for Case No: 76-000387