STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKSON COUNTY EDUCATION )

ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1004

) PERC CASE NO. 8H-CA-764-1019 SCHOOL BOARD OF JACKSON COUNTY, )

)

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 October 4 and 5, 1976; in Marianna, Florida.

The following appearances were entered: Austin F. Reed, Tallahassee, Florida, for the Acting General Counsel of the Public Employees Relations Commission; Ronald Meyer, of the firm FRANK & MEYER, Tampa, Florida, for the Charging Party, Jackson County Education Association; and Joseph Sheffield, of the firm ROBERTS & SHEFFIELD, Marianna, Florida, for the Respondent, School Board of Jackson County. Following the hearing John F. Dickinson of the firm COFFMAN & JONES, Jacksonville, Florida, appeared as additional counsel for the Respondent.

On or about February 12, 1976, the Jackson County Education Association ("JCEA" hereafter) filed an unfair labor practice charge against the School Board of Jackson County ("Respondent" or "School Board" hereafter) with the Public Employees Relations Commission. A copy of the charge was received in evidence as Hearing Officer's Exhibit 1. It is therein alleged as follows:

"Since on or about February 2, 1976, following ratification of a Master Contract, the above named public employer, by acts of its officers, agents, representatives, and employees, has conducted a contrived and concerted reprisal against employees for their collective activity (engaging in collective bargaining)."

* * *

On July 28, 1976, the Acting General Counsel of the Public Employees Relations Commission filed a Complaint and Notice of Hearing (Hearing Officer's Exhibit 2) The Complaint is based upon the same matters alleged in the charge, expands upon the allegations contained in the charge, and contains allegations of fact which are supplementary to, those alleged in the charge. Respondent filed an Answer to the Complaint on August 9, 1976 (Hearing Officer's Exhibit

1. The hearing was originally scheduled to be conducted on September 3, 1976. By letter dated August 6, 1976 (Hearing Officer's Exhibit 4) the School Board moved for a continuance, which motion was granted by order entered August 11, 1976 (Hearing Officer's-Exhibit 6). The final hearing was rescheduled by notice dated September 20, 1976 (Hearing Officer's Exhibit 7).

   
   

   At the hearing General Counsel moved to Amend the Complaint in order to assert that the matters alleged in the Complaint violated additional provisions of the Public Employees Relations Act, Florida Statutes, Chapter 447, Part II. The Respondent did not object to the Amendment, and leave to amend was granted at the hearing. The Amendment was received in evidence as Hearing Officer's Exhibit 8.

   
   

   The School Board filed a Motion for Continuance at the hearing. In support of its motion the School Board asserted that a grievance proceeding was actively in arbitration respecting the same matters involved in this case. The School Board contends that the unfair labor practice proceeding should defer to the arbitration proceeding. The School Board also argued that the Public Employees Relations Commission improperly denied the School Board access to certain records. The Motion for Continuance was denied at the hearing.

   
   

   Subsequent to the hearing and the filing of posthearing legal memoranda, the General Counsel filed a "Motion to Strike Portions of Respondent's Brief". The motion has been denied by separate order.

   
   

   At the hearing the General Counsel called the following witnesses: Betty Duffee, a teacher employed by the School Board at Marianna High School, and the chairman of JCEA's negotiating team; Esther Dickson, a teacher employed by the School Board at Malone High School, and an active member of JCEA; Mary Jo Morton, a teacher employed by the School Board at Marianna High School, and secretary of the JCEA; Betty Turner, a teacher employed by the School Board at Golson Elementary School, and president of the JCEA; and Leon Brooks, a teacher employed by the School Board at Marianna High School, and spokesperson for the JCEA Bargaining Committee. The Respondent called the following witnesses: Lowell Centers, the principal at Marianna High School; Robert Daniel, the principal at Golson Elementary School; Homer Deuel, the principal at Malone High School; and George Riley, the School Board's chief negotiator. The Charging Party examined witnesses called by General Counsel and the School Board, but called no additional witnesses. Hearing Officer's Exhibits 1-8, General Counsel's Exhibits 1-8, and respondent's Exhibits 1-3 were offered into evidence and received. The parties have each submitted posthearing Memoranda of Law, and the Respondent has submitted Proposed Findings of Fact and Conclusions of Law.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is the governing body of the Jackson County School District, and maintains its office in Marianna, Jackson County, Florida., The Respondent is engaged in the business of operating a school system. The Respondent is a public employer.

      
      

   2. The JCEA is an employee organization. On or about June 16, 1975, the Public Employees Relations Commission, in Case No. 8H-RC-754-1084, certified the JCEA as the exclusive bargaining representative of certified instructional personnel who are employed halftime or more by the Respondent in specific job categories.

   3. After lengthy contract negotiations, which began in August of 1975, a collective bargaining agreement was executed by the School Board and the JCEA on February 2, 1976. A copy of the agreement was received in evidence as General Counsel's Exhibit 1.

   4. On February 12, 1976& the JCEA filed an unfair labor practice charge against the School Board with the Public Employees Relations Commission. On February 20, 1976, the JCEA filed written grievances pursuant to Article III of the Collective Bargaining Agreement. The matters raised in the grievances are substantially the same as those raised in the unfair labor practice charge.

      
      

   5. In accordance with the provisions of the Collective Bargaining Agreement, implementation of the agreement was to be completed by February 16, 1976. During the period just prior to and just following February 16, the Respondent, through its agents, implemented numerous unilateral changes in policies.

      
      

   6. Prior to August, 1975, members of the collective bargaining unit at Marianna High School were not required to sign in at the beginning of the work day, or to sign out at the end of the work day. During August, 1976, new sign in and sign out procedures were implemented. The procedures applied only to members of the unit. On February 16, 1976, a time clock system was implemented at Marianna High. The system was implemented in accordance with "Memorandum #10", dated February 9, 1976. The memorandum was received in evidence as General Counsel's Exhibit 2. Members of the bargaining unit were required under the new policy to "clock in" on the time clock at the beginning of the work day, and to "clock out" at the completion of the work day. It was announced that failure to clock in and out would constitute grounds for dismissal. The principal at Marianna High School testified that the Collective Bargaining Agreement required more accurate time records, and that the time clock system was instituted in order that more accurate records could be kept. Article IV, Sections 4.2 and 4.3 of the Agreement were cited. Section 4.2 provides as follows:

      
      

      "The teacher's work day shall be seven (7) hours and fifty (50) minutes, during which each teacher shall be provided a duty-free lunch period on campus of not less than twenty-five (25) minutes. The principal of each school shall set the beginning and ending time of the work day. Teachers

      must have the prior approval of the principal or his designee before they leave school during working hours. Loss of time during the workday shall be covered by approved leave, loss of pay, or compensatory time."

      
      

      Section 4.3 provides as follows:

      
      

      "The principals may assign teachers extra duty which shall be restricted to supervising students on campus before and after school. The principal may also select from volunteers, teachers to supervise students at lunch. Compensatory time, equal to the extra duty time, shall be given teachers serving extra duty and lunch supervision, provided however, compensatory

      time shall not be given during the student day."

      
      

   7. Prior to the implementation of the Collective Bargaining Agreement, employees within the bargaining unit were not paid extra duty time. The principal at Marianna High School testified that the precise delineation of the work day, and the entitlement to extra duty pay necessitated the more accurate record keeping. This explanation is inadequate. In the first place, in order to be entitled to extra duty compensation, the principal would have to assign the extra duty. The extra duties could include supervising students on campus before and after school, and during lunch. These sorts of extra duty are not such as would permit great variances in time. It is difficult to perceive why more accurate time keeping procedures were required. Indeed, as to extra duty during the lunch period, the time clock system would be of no assistance whatever. If more accurate time keeping was necessary at Marianna High School, it would have been just as necessary prior to implementation of the Collective Bargaining Agreement.

      
      

   8. Non-instructional employees of Marianna High School have not formed a collective bargaining unit. Any of these employees are compensated on an hourly basis, and are entitled to more or less compensation depending upon the hours they work. Accurate time records are as necessary for this group of employees as for employees within the bargaining unit; however, the time clock system applied only to employees within the bargaining unit.

      
      

   9. The time clock system was not the only new policy implemented at Marianna High School to coincide with implementation of the Collective bargaining Agreement. Teachers had been permitted prior to the adoption of the contract, to leave school early for doctors appointments, or to serve civic functions, without the necessity of taking any leave time. Subsequent to the adoption of the contract, if a teacher left more than ten minutes early, he or she would be required to take a minimum of one hour leave time.

      
      

   10. On or about February 16, 1976, teachers were instructed to stand outside of their classroom from 7:45 A.M. until 8:00 A.M. to supervise students coming into their classroom. Although teachers had previously been required to supervise students coming into their classroom, they were not required to stand outside of their classroom.

       
       

   11. Prior to implementation of the Collective Bargaining Agreement teachers were permitted to use the teacher's lounge for a planning period. As of February 16, teachers were not permitted to use the lounge for their planning period. The principal at Marianna High School testified that this was necessary in order that he would know where the teachers were since the planning period was to be used for parent consultations in accordance with the Collective Bargaining Agreement. The testimony clearly revealed, however, that the planning period had been used for parent conferences prior to the adoption of the contract. Insofar as limiting the locations for the planning period was necessary, it was as necessary prior to adoption of the contract as subsequent to it.

       
       

   12. During the course of negotiations, the principal at Marianna High School had expressed a hostile attitude toward the collective bargaining process. None of the new policies set out above were discussed during the course of the negotiations.

   13. Each of the new policies was more restrictive than had been the case prior to collective bargaining. The timing of implementation of the policies to coincide with implementation of the agreement, the fact that the policies applied only to personnel within the bargaining unit, the fact that a hostile attitude toward collective bargaining had been expressed, and the lack of any other reasonable explanation for the policies lead inescapably to the conclusion that the new policies were implemented in order to dramatize to members of the collective bargaining unit that resort to the bargaining process would result in more restrictive supervision by the employer. The new policies were implemented for the purpose of discouraging membership in the JCEA, and to interfere with the employees' rights to engage in the collective bargaining process.

       
       

   14. Similar new and restrictive policies were implemented by the Respondent's agents at Malone High School, and at Golson Elementary School. The new policies at these schools were adopted to coincide with implementation of the Collective Bargaining Agreement, applied only to personnel within the unit, and were implemented in asetting of hostility toward the collective bargaining process. Like the new policies at Marianna High, the new policies at Malone and at Golson were adopted to discourage membership in JCEA, and to interfere with employees in the exercise of their rights to engage in the collective bargaining process.

       
       

   15. At Malone High. School teachers were no longer permitted to use the teacher's lounge for their planning period as they had been prior to implementation of the contract. Prior to implementation of the contract teachers were permitted to eat lunch in the cafeteria, in the teacher's lounge, or in their own classrooms. Subsequent to the agreement, they were permitted to eat lunch only in the cafeteria, or in the Home Economics classroom, which was not available during all lunch periods. Nothing in the contract in any way necessitated these new policies.

       
       

   16. One of the top priorities of JCEA in negotiating a collective bargaining agreement was a "duty free" lunch period. JCEA was successful in this respect. The agreement provides for a "duty free" lunch period. Subsequent to adoption of the agreement at a faculty meeting the principal at Malone strongly advised members of the unit to eat with their classes, and in

       this regard made statements which could only have been perceived as threats. He stated for example that it might be necessary to trade the best player to make a better team.

       
       

   17. At Golson Elementary School, a "sign-in, sign-out" system was initiated just prior to February 16, 1976. The principal told members of the bargaining unit that he had treated them as professionals", but that now there was a collective bargaining agreement. He required that they sign in at 7:45

       A.M. and he frequently reminded the teachers over the intercom system during morning announcements that they should sign in.

       
       

   18. Prior to implementation of the contract, teachers at Golson Elementary were permitted to leave the school grounds as much as twenty minutes early in order to attend classes, civic functions, or doctors appointments, without the necessity for using leave time. After the contract it was necessary to use one hour leave time in order to leave ten minutes early. Prior to implementation of the contract teachers were permitted to eat lunch in the teacher's lounge or in their own classrooms. Subsequent to the contract they were no longer permitted to do that.

   19. Prior to certification of the JCEA as the exclusive bargaining agent of instructional employees of the School Board, the School Board utilized a "Calendar Committee" to assist it in promulgating a calendar for each school year. A representative would be chosen from each school, and the Committee would recommend a calendar for the school year. Among recommendations made by the Calendar Committee would be dates for holidays. During the course of negotiations leading to the Collective Bargaining Agreement, the School Board asserted that the calendar would prohibit negotiations respecting vacation days. The JCEA requested that a Calendar Committee not be utilized for the 1976-77 school year. The School Board nonetheless opted to utilize the Calendar Committee. At Marianna High School Betty Duffee, the chairman of the JCEA's negotiating team was nominated at a faculty meeting to serve on the Calendar Committee. The principal at Marianna High School discouraged the faculty from selecting Ms. Duffee because JCEA would be otherwise represented on the Committee.

       
       

   20. Use of the Calendar Committee was not designed to frustrate collective bargaining. A Calendar Committee had been utilized prior to certification of the JCEA by the Public Employees Relations Commission. Use of the Calendar Committee to make recommendations respecting mandatory subjects of collective bargaining, such as vacation days, would, however, at this juncture circumvent the exclusivity of JCEA's representation. The fact that the principal at Marianna High School discouraged selection of a JCEA representative to the Calendar Committee indicates an intention to utilize the Committee to make decisions respecting mandatory subjects of collective bargaining, such as vacation days, without the JCEA participating in negotiations.

       
       

   21. Mary Jo Morton is a teacher employed at Marianna High School. She is active in the JCEA, and this fact is known to the principal at Marianna High School. Shortly after implementation of the Collective Bargaining Agreement Ms. Morton was evaluated by her principal and received an unfavorable evaluation.

It appears from the evidence that the evaluation was not conducted under the best circumstances. For example, Ms. Morton was criticized for not permitting sufficient classroom participation during one class while a test was being conducted. Insufficient evidence was offered, however, to establish that the unfavorable evaluations of Ms. Morton were motivated even in part by her participation in the JCEA.

CONCLUSIONS OF LAW

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

1. Florida Statutes, 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 act,

   2. Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring,

      tenure, or other conditions of employment."

      * * *

2. Among the rights guaranteed public employees is the right to be represented by an employee organization, and to negotiate collectively through a certified bargaining agent with their public employer in the determination of the terms and conditions of their employment. Florida Statutes, 447.301.

   
   

3. It is not necessary to determine in this case whether the new policies, including the time clock policy, the sign-in policy, the lunchroom policies, the planning period policies, and the leave policies constituted mandatory subjects of collective bargaining. The collective bargaining agreement did not necessitate the changes in policy. To the extent that the policies were necessary, they were as necessary prior to implementation of the Collective Bargaining Agreement as they were subsequent to implementation of the agreement. The timing of implementation of the policies, the more restrictive nature of the policies, statements of hostility made by representatives of the Respondent toward collective bargaining, and the lack of any reasonable explanation for the policies constitute sufficient evidence that the policies were designed to interfere with employees in the exercise of their rights to engage in the collective bargaining process, and to discourage membership in the JCEA. Such action constitutes an unfair labor practice.

   
   

4. Under Section 8(a)(1) of the National Labor Relations Act, which is substantially equivalent to Florida Statutes, 447.501(1)(a), the National Labor Relations Board has held that implementing changes in working conditions as reprisals for employees exercising their rights to engage in collective bargaining constitutes an unfair labor practice. Dalf Corp., 188 NLRB 319 (1971); Rental Uniform Service, 167 NLRB 190 (1967).

   
   

5. Utilization of the Calendar Committee by the Respondent constitutes an attempt to undermine the exclusivity of the JCEA as the bargaining agent for employees in the bargaining unit. The Calendar Committee had been utilized to make recommendations respecting the scheduling of holidays and work days. The scheduling of holidays and work days is a term and condition of employment, and is a proper and mandatory subject for collective bargaining. Use of a committee of members of the bargaining unit to give information to the employer respecting the calendar serves to frustrate the employees in their rights to be represented by an employee organization, and to negotiate terms and conditions of employment collectively through an exclusive bargaining agent. The fact that the principal at Marianna High School discouraged selection of a member of JCEA for the Calendar Committee evidences an intention to utilize the Calendar Committee to frustrate the exclusivity of the JCEA's representation.

   
   

6. Insufficient evidence was presented at the hearing from which it could be determined that the poor evaluations of Mary Jo Morton resulted from her activity with the JCEA.

   
   

7. The School Board should be found guilty of committing unfair labor practices through the implementation of restrictive employment policies to coincide with implementation of the collective bargaining agreement. The School Board should be ordered to cease and desist from continuing to enforce the policy changes. The School Board should be directed to conspicuously post a notice that it has been found guilty of an unfair labor practice in implementing the policy changes, and that it will no longer enforce the policies.

   
   

8. The School Board should be found guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year. The

School Board should be ordered to cease and desist from continuing to utilize the Calendar Committee.

RECOMMENDATION

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

RECOMMENDED that an order be entered as follows:

1. Finding the School Board of Jackson County guilty of committing unfair labor practices by implementing restrictive policy changes at Marianna High School, Malone High School, and Golson Elementary School in such a manner as to discourage membership in the Jackson County Education Association, and interfere with its employees in the exercise of their rights to engage in the collective bargaining process.

   
   

2. Finding the School Board of Jackson County guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year.

   
   

3. Requiring that the School Board of Jackson County cease and desist from continued enforcement of the policy changes, and from continued utilization of a calendar committee.

   
   

4. Directing that the School Board of Jackson County conspicuously post a notice that it has committed unfair labor practices, that it has been directed to cease and desist from such activities, and that it will cease and desist from such activities.

RECOMMENDED this 12th day of January, 1977, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

Austin F. Reed, Esquire Public Employees Relations Commission - Suite 300 2003 Apalachee Parkway

Tallahassee, Florida 32301

Richard Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

Joseph A. Sheffield, Esquire Post Office Box 854 Marianna, Florida 32446

John F. Dickinson, Esquire COFFMAN & JONES

2065 Herschel Street Post Office Box 40089

Jacksonville, Florida 32203

Docket for Case No: 76-001004

Orders for Case No: 76-001004