and ) CASE NO. 76-1724
) PERC NO. 8H-CA-763-0143
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on January 31, and February 1, 1977 at Leesburg, Florida.
For Charging Party: Gene L. Johnson, Esquire
William E. Powers, Esquire General Counsel
For Respondent: Norman F. Burke, Esquire
By complaint filed January 11, 1977 the General Counsel of PERC alleges that the City of Leesburg, Respondent herein, has been guilty of an unfair labor practice by reason of Respondent's agent, John Torpey, threatening employees of the Sanitation Department by:
"(a) Advising said employees that support of the union could result in loss of may benefits for the upcoming year.
The complaint further alleges that Respondent further committed an unfair labor practice by discharging two employees for the reason that they had, or Respondent believed that they had, engaged in activities supporting the Charging Party's efforts to represent the employees of Respondent.
Subsequent to the Charging Party failing to obtain a majority vote for representation, the Charging Party filed an Objection to the Election alleging, inter alia, that the actions of Respondent's agents in threatening employees of the Sanitation Department as noted in (a), (b), and (c) above interfered with the employees' free choice so as to warrant setting aside the election. By Report on Objections filed January 14, 1977, the Chairman of PERC dismissed the Objections other than Objection No. 1, which involved the allegations of threatening the employees of the Sanitation Department, and directed that this objection be consolidated for hearing with the Complaint filed January 11, 1977.
By Answer filed January 21, 1977 and Answer to Objection to Election filed November 23, 1976, Respondent denied all material allegations of improper conduct.
At the hearing on January 31 and February 1, 1977 seven witnesses were called by the Charging Party, three witnesses were called by Respondent, and eleven exhibits were offered into evidence. Exhibit 2, after being marked for identification, was subsequently withdrawn by the Charging Party. One witness who had remained in the hearing room after the rule had been invoked was called to "authenticate" Exhibit 11, a copy of a newspaper article. Objection to this witness testifying was sustained and a proffer was made that if allowed to testify the witness would say that he had obtained Exhibit 11 from the files of the newspaper office. Objection to Exhibit 11 on the grounds of hearsay and relevance was sustained. At the conclusion of the Charging Party's presentation Respondent moved for a directed verdict. This was denied but the Charging Party withdrew charge (c) above. After fully considering all evidence presented the following is submitted:
The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S,
William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S.
Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S.
The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election.
Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees;
however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD).
Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews.
The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash.
Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid.
The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00
p.m. They are paid for a full eight hour work day.
Parks Department employees, also in the PWD, commence work at 7:00
a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash.
Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city.
Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred.
On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of
Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties.
Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed.
Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed.
A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them.
When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed.
The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office.
Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office.
Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours.
Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked:
"Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work?
Yeah; true.
Q. Is that true?
A. uh-huh.
Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union?
A. Him and some other people too."
Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236)
The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time.
In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed.
Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction.
Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
CONCLUSIONS OF LAW
Section 447.501 F.S. lists unfair labor practices and provides in pertinent part:
"(1) Public employees and 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 member- ship in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.
(3) Notwithstanding the provisions of sub- sections (1) and (2), the parties' rights
of free speech shall not be infringed, and the expression of any argument or opinion shall not constitute, or be evidence of, an unfair employment practice or of any other violation of this part, if such expression contains no promise of benefits or threat of reprisal or force."
The operative facts pertaining to the July 28, 1976 meeting were substantially as noted in the findings above. The major portion of the evidence, again as noted above, involved the operation of the Sanitation Department, dissemination of management policies, and established customs and procedures of the department.
As noted in the preliminary statement the Charging Party withdrew the charge under 6(c) of the Complaint. This leaves the charged acts of coercion to be "advising said employees that 'union advocates would end up hitting the road'" and "advising said employees that support of the union could result in loss of pay benefits for the upcoming year."
The burden is on the Charging Party to prove by a preponderence of the evidence the acts charged. Torpey categorically denied making the satements attributed to him and no witness specifically testified that he understood Torpey to say or intend that anyone who advocated the union would be fired.
Several witnesses referred to a statement by Torpey at the July 28, 1976 meeting that Labor Board had "gone down the road" just like the union would, but no evidence was present regarding which or what "Labor Board" was referred to, what they were trying to do, or what, if anything, illegal or unfair could be inferred from the comment.
In order for Torpey's reference to the proposed pay increase he mentioned at the July 28th meeting to constitute a threat or coercion, it must be found that the fair inference of what he said was that if PWD employees voted for a union the proposed pay raise would be withdrawn. If this is truly what was said an unfair labor practice was committed. However, if the fair import of his comments was that, if the union is voted in, pay and work schedules would have to be negotiated, he merely enunciated one basic premise of collective bargaining. As noted in the findings of fact above the sanitation crews were not told that if they voted the union in the pay raise would be withdrawn.
Furthermore on July 28, agreement for a consent election had not been reached, therefore the time for an election to be held was indefinite.
The act of Respondent in firing the two employees was not the type of conduct, "which by its very nature contains implications of the required intent [to coerce or intimidate]", cf. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Labor Relations Board, 365 U.S. 667, 675 (196). Therefore, in order to find the firing to be a ULP it is necessary to find a specific illegal Intent on the part of the employer to discourage union organization efforts.
The Respondent submitted adequate evidence of a legitimate business motive in firing Prather and Sietsema and the Charging Party failed to rebut this evidence with any evidence of a specific intent on the part of the public employer to coerce or interfere with the right of its employees to join a labor organization.
The issue involved in a case such as this was succinctly stated by the Supreme Court in American Shipbuilding Company v. NLRB, 38 U U.S. 300, 85 S. Ct. 955 (1965) as follows:
"Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employer organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicions of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. See e.g. NLRB v. McKay Radio & Telegraph Co. 304 U.S. 333, 347, 58 S.
Ct. 904, 911 82 L. Ed. 1381. Such a
construction of Section 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise.
See Textile Workers' Union v. Darlington Mfg. Co. 380 U.S. 263, 85 S. Ct. 994."
The firing here involved is not an act so inherently prejudical to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other anti-union animus is required, See American Shipbuilding Company v. NLRB, supra, p 311.
Insuring that the garbage and trash pick up crews do a thorough job is essential to the success of the task system used by the City of Leesburg. The best way to guarantee the crews do not omit pick ups in order to sooner complete their task is to have it well understood that if they do miss a pick up it is their duty, and theirs alone, to return and make the pick up before they are released to go home. A clear release from someone in authority is required
before the crews are permitted to leave. Deliberate failure to get such a release occurred in this case and the action of the Director of PWD in firing Prather and Sietsema was proper.
No credible testimony was presented that the transfer of Sietsema from the Parks Department to the Sanitation Department had any anti-union motivation whatsoever. Although the inference was made that the work in the Sanitation Department was physically more demanding than that in the Parks Department, it is difficult to comprehend that wheeling a garbage can from the curb to the rear end of a truck and back to the curb is more physically demanding than operating a 7 hp rototiller. Even if the work in Sanitation is more difficult than in Parks, the selection of Sietsema for transfer was clearly based upon his length of service and not upon his union activities. It is to be noted that this transfer was not made the basis of any charge in the complaint.
From the foregoing it is concluded that the Charging Party has failed to prove that Respondent, City of Leesburg, by and through its agents and employees, committed an unfair labor practice by advising employees that "union advocates would end up hitting the road" and that support of the union could result in loss of pay benefits.
It is further concluded that both William Sietsema and Richard Prather were fired for disobedience of orders and not for engaging in union activities. It is therefore,
RECOMMENDED that the Complaint be DISMISSED. It is further,
RECOMMENDED that the Objections to Election be DISMISSED as being without merit.
DONE and ENTERED this 1st day of March, 1977, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Gene L. Johnson, Esquire and William E. Powers, Esquire Public Employees Relations Commission - Suite 300
Norman F. Burke, Esquire
