STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANA E. PRATT, )

) CASE NO. 76-657

Petitioner, ) PERC NO. 8H-CA-762-0025

)

LLOYD A. PERRY, )

) CASE NO. 76-658

Petitioner, ) PERC NO. 8H-CA-762-0026

)

vs. )

) CITRUS COUNTY BOARD OF COUNTY ) COMMISSIONERS, )

)

Respondent, )

)

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 28, 1976, in Inverness, Florida.

APPEARANCES

The following appearances were entered:

For Acting General Counsel of the Public Employees Relations Commission:

Rodney Smith, Esquire Staff Attorney

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

For the Respondent, Citrus County Board of County Comissioners:

William F. Edwards, Esquire Post Office Box 1588 Inverness, Florida 32650

For Charging Parties:

Mr. Dana E. Pratt, pro se Star Route 1, Box 10B Lecanto, Florida 32661

Mr. Lloyd A. Perry, pro se Route 1, Box 318P

Floral City, Florida 32636

On or about February 23, 1976, Lloyd A. Perry and Dana E. Pratt filed unfair labor practice charges against their employer, the Citrus County Board of County Commissioners, with the Public Employees Relations Commission (Hearing Officer's Exhibit No. 1). The basis of the charge filed by Mr. Perry is set out in the charge as follows:

"On February 10, 1976, I presented a petition to the Board of County Commissioners asking that they examine conditions in the County Road Department.

The following day I was taken off my normal piece of equipment and assigned to flag traffic.

On Tuesday, February 17, 1976, I was told by my supervisor that I was being discharged.

I have not yet received a reason for my discharge."

The basis of the charge filed by Mr. Pratt is set out in the charge as follows: "On February 9, 1976, 1 solicited signatures

of fellow Road Department employees on a

petition requesting that the Board of County Commissioners examine conditions in the County Road Department. The petition was presented to the Commission on Tuesday, February 10.

On Thursday, February 12, I was taken off my normal new grader and given the old one to use.

On Tuesday, February 17, 1976, I was told by my supervisor that I was being discharged. I was officially given no reason for the discharge."

On or about May 4, 1976, the Acting General Counsel of the Public Employees Relations Commission issued a Consolidated 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. The hearing was scheduled to be conducted on June 28, 1976.

Prior to the hearing, the Citrus County Board of County Commissioners ("Respondent" hereafter) filed a Motion for More Definite Statement. The General Counsel of the Public Employees Relations Commission filed a Memorandum in Opposition thereto, and the Respondent filed a Motion to Strike the Memorandum. On June 15, 1976, the undersigned issued an Order Denying the Motion for More Definite Statement and the Motion to Strike. At the hearing the Respondent filed a Motion to Dismiss or in alternative to continue, and a Motion to Dismiss. The grounds offered in support of the first motion were that the Motion for More Definite Statement should have been ruled upon by the Chairman of the Public Employees Relations Commission rather than the undersigned Hearing Officer. The grounds in support of the second motion were that the activities set out in the General Counsel's complaint are not within the purview of the Public Employees Relations Act (Florida Statutes Section 447.201 et seq.). Both motions were denied at the hearing, and the second motion has been carried

forward with the case. The General Counsel moved at the hearing to amend the complaint so that the reference to "Thomas Hitt" would read "William Hitt". The Motion was granted without objection.

The General Counsel called the following witnesses: Dana E. Pratt; Lloyd

A. Perry; Hillier J. Wall, an employee of the Citrus County Road Department; Henry J. Perushek, an employee of the Citrus County Road Department; William A.

1. Blalock, an employee of the Citrus County Road Department; James Johnson, an employee of the Citrus County Road Department; and William H. Hitt, who was formerly the Assistant Road Supervisor of the Citrus County Road Department. The Respondent called no witnesses. Hearing Officer's Exhibit 1, and General Counsel's Exhibits 1 and 2 were received into evidence at the hearing. The General Counsel and the Respondent filed Post Hearing Briefs, and the General Counsel filed a Reply to Memorandum Brief of Respondent.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2).

      
      

   2. Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3).

      
      

   3. Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3).

      
      

   4. Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the

      several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties.

      
      

   5. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department.

      
      

   6. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners.

      
      

   7. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition

      specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry.

      Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily.

      
      

   8. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was.

      
      

   9. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired.

      
      

   10. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did.

       
       

   11. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00

       P.M. on that date. Pratt was never given any reasons for his termination.

       
       

   12. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons

       offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse.

       
       

   13. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed.

       
       

   14. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest.

       
       

   15. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

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

       
       

       "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 organization by discrimination in regard to hiring, tenure, or other

          conditions of employment."

          
          

   18. Among the rights of public employees specified in Florida Statutes, Section 447.301 is the following:

       
       

       "Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing."

       Employee organization is defined in Florida Statutes, Section 447.203(10) as follows:

       
       

       "'Employee organization' or "Organization" means any labor organization, union, association, fraternal order, occupational or professional society, or group, however organized or constituted, which represents or seeks to represent, any public employee or group of public employees concerning matters relating to their employment relationship with a public employer."

       
       

   19. When Pratt, Perry, and the other employees of the Road Department of Citrus County solicited signatures to a petition, signed the petition, and presented the petition to the County Commission, they were banning together as a group with the intention of airing grievances relating to their employment relationship with a public employer. When the Board of County Commissioners of Citrus County adopted Superintendent Hutchinson's recommendations and terminated the employment of Perry and Pratt, it did so for the very purpose of discouraging such activity.

       
       

   20. There is no requirement under Florida Statutes Section 447.203 (10) or Section 447.501 that an employee organization be formally structured, registered with the Public Employees Relations Commission, or even formed for the specific purpose of engaging in collective bargaining with the public employer. The term "labor organization" is defined in the National Labor Relations Act in a broad manner as is the term "employee organization" in the Florida Public Employees Relations Act. 29 U.S.C.A. Section 152(2). The definition of labor organization under the National Labor Relations Act has not been confined to organizations which are seeking to engage in collective bargaining as contemplated by the Act. National Labor Relations Board v. Cabot Carbon Company, 360 U.S. 203 (1959). Employees may act to improve their working conditions through many avenues. The Public Employees Relations Act protects them in such activities even if they do not choose to do so through the intervention of a certified bargaining representative. Florida Statutes, Sections 447.03, 447.501.

       
       

   21. The Citrus County Board of County Commissioners committed an unfair labor practice when it terminated Lloyd A. Perry and Dana E. Pratt from employment with the Citrus County Road Department.

       
       

   22. Lloyd A. Perry and Dana E. Pratt are entitled to be reinstated to employment with the Citrus County Road Department. They are entitled to have all seniority rights and fringe benefits restored as if they had never been terminated from employment, and with full back pay from February 17, 1976, until the time that they are reinstated, with interest at the rate of 6 percent per annum; provided that full allowance be made for interim wages or salaries earned.

       
       

   23. In order that the illegal activity of the Citrus County Board of County Commissioners not have any continuing chilling effect upon the employees of the Citrus County Road Department, a bulletin should be posted prominently for inspection by the employees of the Citrus County Road Department, notifying them that they have a right to participate in concerted activity, including preparing and presenting petitions, respecting the terms of their employment, and to engage in other activities for their mutual aid and protection.

RECOMMENDED ORDER

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

RECOMMENDED that an order be entered as follows:

1. Requiring the Citrus County Board of County Commissioners to reinstate Dana E. Pratt to his position with the Road Department with all seniority rights and fringe benefits restored as if he had not been terminated from employment, and with full back pay from February 17, 1976, until the date that he is reinstated or an offer of reinstatement is made, with interest at 6 percent per annum, and with allowance being made for interim wages earned.

   
   

2. Requiring the Citrus County Board of County Commissioners to reinstate Lloyd A. Perry to his position with the Road Department with full seniority rights and fringe benefits restored as if he had not been terminated from employment, and with full back pay from February 17, 1976 until the date he is reinstated, or an offer of reinstatement is made, with interest computed at 6 percent per annum, and with allowance being made for interim wages earned.

   
   

3. Directing the Citrus County Board of County Commissioners to conspicuously post a bulletin at its Road Department specifying that employees of the Road Department have a right to distribute and present petitions respecting the terms of their employment, and assuring said employees that they have a right to participate in concerted activities for their mutual aid and protection.

RECOMMENDED this 13th day of October, 1976, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Rodney Smith, Esquire Staff Attorney

Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway

Tallahassee, Florida 32301

William F. Edwards, Esquire Post Office Box 1588 Inverness, Florida 32650

Mr. Dana E. Pratt Star Route 1

Box 10B

Lecanto, Florida 32661

Mr. Lloyd A. Perry Route 1, Box 318P

Floral City, Florida 32636

Docket for Case No: 76-000657

Orders for Case No: 76-000657