STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF PORT ST. JOE, )

)

Respondent, )

)

vs. ) CASE NO. 76-621

) PERC NO. 8H-CA-762-0023

WILLIAM E. BURROWS, )

)

Charging Party. )

)

RECOMMENDED ORDER

This cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on June 21, 1976, at Port St. Joe, Florida, upon the Acting General Counsel's Complaint dated May 25, 1976 and Respondent's Answer.

APPEARANCES

For Petitioner: Patricia A. Renovitch, Esquire

Staff Attorney for

Jack L. McLean, Jr., Acting General Counsel Public Employees Relations Commission

2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

For Respondent: H. Victor Hansen, Esquire

of the law firm Fisher and Philips 3500 First National Bank Tower Atlanta, Georgia 30303

William J. Rish, Esquire

of the law firm Rish and Whitten

304 Fourth Street Post Office Box 87

Port St. Joe, Florida 32456 ISSUES

The issues raised by the pleading are, whether the Respondent, through its Superintendent, Dorton Hadden, unlawfully interrogated employee William E. Burrows on January 27 and 28, in a city vehicle, concerning his union activities, sympathies and desires violative of sec. 447.501(a) F.S., (hereinafter the Act). The complaint alleges further that from January 28 to February 11, the Respondent, through its agent and/or representative Hadden, engaged in a systematic pattern of harassment against Burrows in an effort to force him to quit. Specifically, it is alleged that the harassment included the assignment by Respondent to Burrows, more onerous duties of digging out ditches and single handedly demolishing an abandoned high school which conduct allegedly violated 447.501(1)(a) and (b) of the Act.

Upon the entire record, upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the able briefs submitted by the parties, I make the following:

FINDINGS OF FACT

1. Jurisdiction: The complaint alleges, the Respondent admits and I find that the Respondent is a Public Employer with its principal place of business located in the City of Port St. Joe, Florida, where it is engaged in the business of operating a city. Respondent is created directly by the Florida State Constitution and/or legislative body so as to constitute a department or administrative arm of the government as administered by individuals who are responsible to public officials and/or to the general electorate. On the foregoing, I find 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.

   
   

2. The Labor Organization Involved: On the basis of a prior administrative determination and in conjunction with an order of the Public Employees Relations Commission and its decision in case no. 8H-RC-7053-0053, 1 find that the Laborers International Union of North America, Local No. 1306, is a labor organization within the meaning of the Act.

   
   

3. The Alleged Unfair Labor Practices:

A. introduction

1. The complaint alleges, and the General Counsel and the Charging Party contend, that the Respondent, through its representative, Mr. Hadden, engaged in a systematic pattern of harassment directed against Mr. Burrows, the Charging Party, because of Mr. Burrows union activity. Based on this harassment, the complaint alleges that Mr. Burrows was forced to quit on February 10, 1976, and was therefore constructively discharged.

   
   

2. Respondent's position is that assuming that the allegations of the complaint are true, it should be dismissed because the Public Employees Relations Commission, hereinafter PERC, previously determined that Hadden was a member of the bargaining unit and therefore Respondent can not be held responsible for unfair labor practices of an employee. Alternatively, the Respondent alleges that if it is determined that PERC's original decision was incorrect and Hadden is a managerial employee within the meaning of the Act, the actions of Hadden did not constitute harassment of Mr. Burrows. Furthermore, it is contended that Mr. Burrows was merely asked to perform various jobs which are performed by every other employee of the public works department. Respondent urges that its actions towards Burrows were in no way discriminatory nor did they constitute harassment. Contrawise, Respondent contends that there was no constructive discharge but rather Burrows voluntarily quit his job without notice.

   
   

3. The Respondent, City of Port St. Joe, is managed by a five member City Commission. The City's operations are divided into three principle departments: Waste Water Treatment; Parks and Cemeteries, Water and Sewer; and Roads and Streets. About 40 employees work under manager R. F. Simon at the Waste Water Treatment Plant and Curtis Lane is Simon's assistant. The plant is located on the north side of the City. G. L. Scott supervises about 10 employees working in Parks and Cemeteries, Water and Sewer. Dorton Hadden supervises about 20 employees in the Road and Streets Department. Employees of Hadden and Scott

   work up town, which is approximately one mile away from Simon's Employees. R.

   F. Simon reports directly to the City Commissioners. According to his testimony, he, as directed by the City Commission, supervises Hadden and Scott concerning some of their duties, but that for other duties, Hadden and Scott report directly to the Commission. According to Brock, Hadden hires, fires and disciplines his employees and reports such activity to the City Commission. According to him, he knew of no instance where Hadden's decisions were questioned by the City. It is fair to state that Hadden was solely in charge of his employees and that the City's prior consent is not required for him to exercise his powers as it relates to the hiring, firing and disciplining of employees in his department.

   
   

4. Hadden also testified that he worked directly for the City Commission, and he has the power to hire, discipline and fire employees. He is not required to obtain permission to fire employees but he usually contacts the Mayor to explain the reasons why an employee is fired or otherwise disciplined. Hadden has rarely exercised this authority as most employees usually quit when they find better jobs. Hadden does not evaluate his employees and there is no senority system in his department since every employee, according to him, is a laborer and performs essentially the same work. Newly hired employees are placed on a three month probationary status after which they are placed on permanent status. According to him, the purpose of probationary is two fold:

   to determine whether or not an employee will stay on the job long enough such that processing of formal papers such as insurance and other necessary items will not be an exercise in futility and secondly an employee can decide whether he can perform the required "dirty work" during that period. He was unable to recall terminating any one during their probationary status, however, he did recall one employee who quit since the job required too much "dirty work".

   
   

5. On January 27, 1976, Laborer's International Union of North America, Local No. 1306 filed a representation petition seeking a secret ballot election for a unit of blue collar employees of the City. On June 16, 1975, a Hearing Officer of the Division of Administrative Hearings conducted a public hearing on the appropriate unit question. Pursuant to the record developed in that case on December 23, 1975, the Public Employees Relations Commission determined the following appropriate bargaining unit. Included: All employees of the City. Excluded: All sworn police officers, fire fighters, hospital and medical care employees of the City. See PERC decision and order in case no. 8H-RC-753-0053, Charging Party's Exhibit 2b, received into evidence and made a part hereof by reference. PERC designated Brock and Simon managerial employees within the meaning of Section 447.203(4) of the Act. Hadden was included in the unit as a working foreman", the person who essentially "directs and assist the accomplishment of specific, tasks." The Commission found that Hadden's degree of supervision is not of such magnitude as to create an untenable conflict of interest between the lower level supervisors and other rank and file employees. See Exhibit 2(b) supra, at page 3. Thereafter an election was conducted by the Commission on February 4, 1976 and on February 18, 1976, the Union was certified as the exclusive collective bargaining representative for the employees in the above referenced unit.

   
   

6. William Edward Burrows was initially hired by the City on September 3, 1974. Burrows had worked for the City on two prior occasions, once in 1972 and a second time in 1973. He was hired by Hadden on each occasion. The record also reveals that Burrows was employed several times for the Comforter Funeral Home where he was employed by W. P. Comforter, Sr., the funeral director. Based on the testimony of W. P. Comforter, Jr., Burrows had little if any difficulty performing his work duties as required however, Comforter, Jr. testified that

   he doubted whether he would reemploy Burrows since he left their employment at least once without prior notice. Burrows testified that he initially left the City's employ due to marital problems. He quit the second time for a better job and the third time his separation resulted from his discharge which is here alleged as a constructive discharge.

   
   

7. During September 1974, he was hired as a dog catcher for the City. At that time there was no dog pound however, there was a dog pound in operation during December 1974 to December 1975. Prior to the pound being built, Burrows performed odd jobs, such as cutting grass, truck driving, picking up trash and assisting summer school employees clean out drainage ditches. In early December 1975, Burrows drove a garbage truck. During the period of approximately three weeks preceding Christmas and approximately two to three weeks after New Years, he strung Christmas lights. During that period he also was assigned to drive the dump truck hauling dirt and assisting employees with the operation of the dragline and front-end loaders. During the week of January 19 - 23 and on January 26 and 27, Burrows substituted as janitor at City Hall for Joe Badger who was on a two week vacation. According to Burrows, Hadden assigned him to replace Badger for the entire two week period, January 19 - January 30. According to him, his working relationship with Hadden was good prior to his attendance of a union meeting held January 26, 1976, and that he enjoyed working for Hadden.

   
   

8. Burrows attended his first union meeting on January 26, 1976, which was conducted by Roy Scherer, area business representative for LIUNA, and Charles Carrol, a union member at a local plant. Prior to departing, Burrows was asked to volunteer to be a poll watcher for the union in the forth coming election. Scherer selected Burrows for the job and Burrows agreed to do so. At least one other employee, Leonard Alexander, who was also present at the January 26, meeting testified that he and others had not volunteered since they were concerned about their job security and were afraid of losing their job if they did so. On January 27, 1976, at approximately 4:15 P.M., Hadden stopped by City Hall where Burrows was replacing janitor Joe Badger for two weeks. Hadden told Burrows he wanted to talk to him in private and at Hadden's request, they rode in Hadden's truck to a warehouse approximately 1 mile away, where Hadden stopped to speak briefly with Lincoln Griffin. They then returned to City Hall at approximately 4:45 P.M. According to Burrows, while in Hadden's vehicle on the way to the warehouse, he inquired if he went to union meetings; who was there; what he thought of the union and how he was going to vote. Burrows replied that he was not definite in his responses concerning how he would vote but Hadden nevertheless urged Burrows to change his mind about unionization. Hadden admitted that the conversation with Burrows included some talk about the union and whether Burrows liked it or not and if he thought it would be good. He asked Burrows what he thought about the union and the conversation lasted approximately 5 minutes while he drove to the warehouse. According to Hadden, Burrows' response was that he hadn't made up his mind what he was going to do about the union whereupon Hadden admitted that he could have told Burrows that he would appreciate it if Burrows would change his mind. According to Burrows, Hadden had never talked to him like that before and that the only purpose for him doing so was for him to inquire about him, about the activities above mentioned as Hadden had no work assignment for him at the warehouse.

   
   

9. The following morning, Wednesday, January 28, 1976, Burrows reported to the warehouse at 7:00 A.M. as requested by Hadden. Burrows related that he found that Hadden and the rest of the employees were not as friendly as they usually were. According to him, they "stayed away from him". When work time commenced, Hadden directed Burrows to get a shovel and that he had a job for

   him. Hadden reassigned Cuz VanDavender to replace Joe Badger saying "...I'm going to have to send you up there, Cuz." Hadden then took Burrows out to a ditch on Long Avenue between 7th and 8th Streets and told him to clean it out. Burrows was given no explanation for the change in assignment. Burrows testified that this was the first occasion since he commenced employment with the City on September 3, 1974, that he was assigned to clean out a ditch alone although he had assisted school boys which he supervised in digging during the prior summer and in storm situations. He testified that during the course of his employment his assignment to dig or clean out ditches was infrequent and with the assistance of other employees. While in route to the work site, Hadden asked Burrows if he had changed his mind about the union and Burrows replied that he had not made up his mind. He replied that he would "appreciate it if he (Burrows) would change his mind in the way he would vote for the union." Burrows testified that normally it is the trash crews' responsibility to clean out the ditches on Wednesdays since there was no schedule for picking up trash one that day. Burrows testified that the ditches were usually dug out with a backhoe or a dragline, which machinery was available on that date. Burrows spent the morning of January 28, raking leaves and limbs and digging out the ditch. On that evening, he was assigned to get a crowbar, axe and hammer and directed to proceed to an abandoned school, Washington High, in north Port St. Joe to pull nails out of a pile of rafters that had been torn down. Burrows had previously been out to the school during the winter along with six or seven other employees. During that time, they used the dragline to partially demolish the building while Burrows pulled nails out of the torn down rafters. Burrows testified that the school grounds were littered with broken glass, nails and other debris. The building is located approximately one block from the nearest residence. Upon his arrival at the school, Burrows was unable to locate any rafters or anything knocked down and when Hadden stopped by later to check on Burrows, he told Hadden he could not find any rafters whereupon Hadden told him to "getup there and knock them down yourself". Burrows, pursuant to that directive, proceeded to a one story section of the building and began tearing down rafters. Hadden witnessed Burrows in and around the building tearing down some two-by-fours and getting what he could. While Burrows considered the job to be a dangerous one, he never voiced this complaint about his assignment to Hadden. Hadden stated that there was no urgency in sending Burrows out to the school, however, it was just another job that needed to be completed. Later in his testimony, he indicated that he had sent Burrows to the school since the lumber was being stolen band he felt that the job was urgent. On Thursday, February 5, Burrows reported to work as usual. He started to take the trash truck on the scheduled run because one employee, Messenger Cotton, who normally drives the truck, was on vacation and Hadden had previously informed him that he would be Cotton's replacement. When he got to the site, Hadden instructed him to get out because he had secured two men from Scott's Sewer and Parks Department to drive two of the trash trucks and had recruited another employee, Bailey, who works a few days a month to drive the third trash truck. According to Burrows, it was unusual for Hadden to use Scott's employees. Instead of driving the trash truck, Burrows was assigned to clean out ditches near Garrison Avenue. One assignment was to clean out a ditch behind the Union Hall on Garrison Avenue by deepening it about six inches. The ditch was approximately

   40 feet long. According to Burrows, the ditch was wet, cold and had water in it but Hadden gave him no boots. Burrows worked on that ditch on February 5, the morning following the election, and was "assigned to all various little ditches the rest of the afternoon all over town." The following day, Burrows was assigned to dig out a ditch on Garrison Avenue. He finished the assigned job. When Burrows was assigned to dig out the Garrison Avenue ditch, three employees from the trash crew had been there the day prior but since the trash crew had not adequately completed it, Burrows was assigned to complete the task. The

   following Monday, February 9, 1976, Burrows was sick with the flu. His wife called to advise Hadden of her husband's illness and inability to work. Hadden thanked Mrs. Burrows and stated that he hoped Burrows would feel better soon.

   On Tuesday, February 10, the following day, Burrows reported to work at the warehouse before starting time. He testified that he still "felt pretty well down in the weather from the flu, but he could not afford to miss work and be docked for it." Hadden again assigned him to work in a ditch using a shovel. Burrows did not follow those instructions since, according to him, he was "half way sick and felt like Mr. Hadden was harassing him so he went home."

   
   

10. Hadden testified that when he instructed Burrows to clean up the ditch between 7th and 8th streets, on January 28, the ditch was dry and it was not raining and had not rained for some time. He said that he gave Burrows a shovel because the ditch contained only straw and leaves and that was all that was necessary to clean it out. Employees Beard, Gaynor and several others who had been in the Respondent's employ testified that they had cleaned out ditches before, however, as they relate to employees Beard and Gaynor who operate a backhoe, contrary to Burrows testimony that normally a, backhoe is used to clean out ditches, they testified that backhoes have never been used to clean out ditches adjacent to streets during their approximately 13 years of employment. There was other evidence that the street employees are regularly assigned to collect garbage and they spend at least one day a week cleaning ditches. When Burrows was initially hired, the employees were working in a ditch that was filled with mud waist high. Hadden, when asked by Burrows if he could work, replied that the work was dirty and that if he did not like to perform dirty work, he should not take the job. Burrows took the job and in the undersigned's opinion was well aware that that kind of work was within the scope of the normal duties assigned to such employees. Testimony also further reveals that other employees were assigned to clean ditches and they did not envision such as a discriminatory assignment. The undersigned also considered it strange that while Burrows considered the assignment (cleaning ditches) discriminatory, :, did not voice any dislike for the assignment to those responsible including Hadden. Nor did the job assignment of pulling nails from two-by-fours considered to be dangerous since other employees had been assigned the same task. Attention must be given to the fact that Burrows never complained about these assignments. The mere fact that a job is unpleasant or undesirable to an employee does not render a transfer of duties a constructive discharge. See for example,. NLRB v. J. W. Mortell, 440 F.2d 455 (7th Circuit, 1971) and Montgomery Ward, 160 NLRB no. 137 (1966). Based on all the factors in this case including the fact that the job assignments were of the type performed by every employee in Mr. Hadden's crew as part of their job, the undersigned is unable to attach any discriminatory motive to the assignment to Mr. Hadden since it is regarded by the employer and the employee as one of the major responsibilities of the public works department. One fellow employee testified that he had recently used a shovel to clean trash out of a ditch (employee Beard). Beard, a backhoe operator, testified that he could not use it to clean shallow ditches and that during his approximately 13 years of employment, he had never used a backhoe to perform such tasks. I am thus compelled to conclude that Mr. Hadden did not act discriminatorily toward Mr. Burrows in the distribution of work or in the tools given him to accomplish his assignments. The only evidence, if it can be regarded as such, is Burrows allegations that he suspected that he was being singled out for union activity, however mere suspicions is no substitute for proof and do not provide ample basis to support an allegation of a discriminatory discharge. See for example, NLRB v. Mays, Inc., 366 F.2d 693 (2nd Circuit 1966). Moreover, it was noted that when Burrows was rehired the last time, Hadden instructed that should he again walk off the job, the City would not rehire him. Burrows indicated that he would not walk

    off the job again without giving notice and therefore Mr. Hadden rehired him. It thus appears that it was with some reluctance that the City rehired Mr.

    Burrows and was concerned about prior occasions when he left his employment without giving sufficient notice. This occurred approximately one year prior to the advent of the union and certainly no legitimate claim can be made that the understanding which Hadden and Burrows reached at that time, had any relationship whatsoever to any union animus or that it resulted based on any concern that Respondent had about Burrow's union involvement. This being the status of the record, the undersigned therefore concludes that Mr. Burrows quit his job rather than as alleged, that he was constructively discharged.

    
    

11. The next issue raised is whether the Respondent unlawfully interrogated employee Willie Burrows by its representative Hadden, while enroute to the warehouse on January 27, 1976. While the complaint alleges that Dorton Hadden is not an agent and a representative of the Respondent, acting on its behalf during times material, Respondent denied that allegation and further made the point that it has previously been determined by the Public Employees Relations Commission in its decision that based on the authority given to Dorton Hadden, he was not a managerial employee and thus was included in the bargaining unit. The undersigned is of the opinion that since the Commission determined that Mr. Hadden should be included within the unit, the Respondent should not be held responsible for inquiries by him about Mr. Burrows' feelings about the union since the prior determination had been made that he was a bargaining unit employee. There was no evidence indicating that his job duties had changed or for a reconsideration of his unit placement. As the Respondent correctly points out, the employer would have violated the Act if it had instructed Mr. Hadden to refrain from attending union meetings and asking questions about employees union sentiments etc., since as a unit employee he had the right to do so. Nor is the undersigned aware of any provision in the Act which prevents an eligible employee from inquiring of other employees how they feel about the union and by such acts commit an unfair labor practice attributable to the Respondent. Accordingly, I shall recommend that the complaint allegations that the Respondent or its agents unlawfully interrogated employee William E. Burrows on January 27, 1976 in a City vehicle concerning his union membership, activities, sympathies and desires. Based on the above findings and conclusions, I shall therefore recommend that the complaint be dismissed in its entirety.

    
    

    Based on the above Findings of Fact and Conclusions, I made the following: CONCLUSIONS OF LAW

12. The parties were properly noticed pursuant to Chapter 447.307(3) Florida Statutes.

    
    

13. The Respondent is a public employer within the meaning of Chapter 447,002(2), Florida Statutes.

    
    

14. The Laborer's Local Union #1306 is an employee organization within the meaning of Chapter 447.002(10), Florida Statutes.

    
    

15. Respondent has not engaged in any of the unfair labor practices alleged in the complaint.

RECOMMENDATION

Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Chapter 447, Florida Statutes, I hereby issue the following recommended:

ORDER

The complaint is dismissed in its entirety.

DONE and ENTERED in Tallahassee, Florida this 27th day of September.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Patricia A. Renovitch, Esquire

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

H. Victor Hansen, Esquire Fisher and Philips

3500 First National Bank Tower Atlanta, Georgia 30303

William J. Rish, Esquire Rish and Whitten

304 Fourth Street Post Office Box 87

Port St. Joe, Florida 32456

Docket for Case No: 76-000621

Orders for Case No: 76-000621