STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG JUNIOR COLLEGE, )

)

Respondent, )

)

vs. ) CASE NO. 76-2092

) PERC NO. 8H-CA-764-4136 COMMUNICATION WORKERS OF AMERICA, )

)

Charging Party. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held public hearing in the above styled case on March 14, 1977 at Pinellas Park, Florida.

APPEARANCES

For Respondent: James M. Blue, Esquire

Suite 940 Barnett Bank Building Tallahassee, Florida 32302

For Charging Rodney W. Smith, Esquire Party: 204 West University Avenue

Gainesville, Florida 32601

By Complaint filed January 30, 1977 the General Counsel PERC has alleged that Respondent's acts in refusing to rent to the Communication Workers of America (CWA) a classroom at the St. Petersburg Junior College (SPJC) for the purpose of inducing public employees to support the union's organizational efforts, constitutes an unfair labor practice pursuant to Section 447.501 F.S. Respondent by Answer and Affirmative Defenses admits most of the operative facts alleged in the complaint but denies that its refusal to rent the classroom to the CWA was based solely on the fact that the CWA is an employee organization, and further denies that the acts committed constitute an unfair labor practice. As the First Affirmative Defense SPJC contends that, as a matter of law, it is not required to rent rooms to any organization to which it does not desire to rent; and as a Second Affirmative Defense SPJC contends that to rent the room during the hours desired by CWA could have interfered with the operations of the college and possibly place the college in conflict with the Public Employees Relations Act (Chapter 447, Florida statutes).

At the hearing four witnesses were called by the Charging Party, one of these witnesses was recalled by Respondent, and nine exhibits were offered into evidence. Objection to the admissibility of Exhibit 4 on the grounds of relevancy was sustained; all other exhibits offered were admitted into evidence. At the close of CWA's case Respondent's motion for dismissal of the complaint was denied.

FINDINGS OF FACT

1. The Communication Workers of America (CWA) is an employee organization and the St. Petersburg Junior College is a public employer.

   
   

2. In June, 1976, CWA was attempting to organize various employees at SPJC. To facilitate getting their message to the employees and the group for which representation was sought, CWA inquired of SPJC about renting a classroom. Initially CWA was advised that no bar to renting the room was foreseen; however, the following day CWA was advised by SPJC that they would not rent the use of a classroom to CWA. Thereafter on June 14, 1976 CWA submitted a written request (Exhibit 3) to SPJC requesting rental of a room any weekday between July 19 and July 30. No written response to this request was made but upon oral inquiry CWA was advised that they would not be able to rent the room.

   
   

3. In April, 1975 the President of SPJC issued a memorandum (Exhibit 6) to managerial employees advising that union activities were being conducted on the campus and that they should be on the lookout for various signs of union activities. Examples of what to look for were given.

   
   

4. A union organizer at SPJC, Ms. Marcia Warden, was the principal complaining witness in these proceedings. She testified she was being followed by "supervisory" personnel each time she came on SPJC campus and was thereby prevented from having access to the employees. There were only two employees in the unit solicited by CWA that were excluded from union participation by reason of their managerial status. Another witness, an employee of SPJC, never saw either of these two employees in the vicinity of Ms. Warden the 10 or so times she observed Ms. Warden on the campus.

   
   

5. At the beginning of the organization drive notices of union organizational meetings were removed from campus bulletin boards. However, after October the union was allowed to post on these bulletin boards notices of union meetings. This authorization was memorialized in a letter to Ms. Warden dated October 18, 1976 (Exhibit 9). Thereafter on October 31, 1976, Ms. Warden advised PERC that as a result of this change in SPJC's policy, no further amendments would be made to their unfair labor practice charge (Exhibit 7). Prior to the end of 1976 a settlement agreement was executed between SPJC and CWA (Exhibit 8).

   
   

6. During the organization drive SPJC did not cooperate with the CWA to facilitate their task. A list of employees was not given to CWA until after a law suit was brought by CWA. A full list of employees was provided CWA 7 days prior to the election.

   
   

7. Ms. Warden also testified that by refusing to rent the union a room SPJC removed CWA from access to the employees other than at the parking lot where she was being watched by supervisors. An employee of SPJC in the proposed unit testified that she received numerous notices in the mail at her home address and that Ms. Warden had visited her at her home on organizational business.

   
   

8. SPJC's policy regarding renting classrooms to non-profit organizations is contained in Exhibit 5. Most such organizations that apply to lease meeting space from the college are successful in doing so. The only exceptions noted at the hearing were a karate group that had previously done some property damage, a gay liberation group, and the CWA.

9. Meetings had been held between SPJC and a previous group attempting to represent the college employees called the Career Services Employment Council. No meetings were held with that organization subsequent to July, 1976 and no evidence was presented that the group was ever allowed to rent college space for Organizational meetings. No evidence was presented that union representatives were barred from SPJC campus, that reasonable diligence on the part of union organizers would have been unsuccessful in Obtaining the names and addresses of employees in the proposed unit, or that the employer actively interfered with CWA Communicating with its employees during non-working hours. On the other hand SPJC did not cooperate with CWA so as to facilitate the Organizational efforts of the CWA.

   
   

10. CWA requested the use of a room at SPJC during working hours, i.e. from 1 to 4 P.M. and meetings held during those times could have interfered with the program of the college. However the union proposed these hours in order to have access to the largest shift of employees in the proposed bargaining unit who normally reported for duty at 2:50 P.M. Subsequent to 3:00 P.M. CWA proposed to meet with the shift that came off duty at 2:50 P.M.

    
    

11. All proposed findings of fact submitted by Respondent are treated in the findings herein submitted or were considered immaterial to the issues to be resolved.

    
    

    CONCLUSIONS OF LAW

    
    

12. The primary issue here for determination is whether or not a public employer is required to provide space for an employee organization to solicit membership on the same basis that it provides available space to civic, cultural and other similar non-profit organizations. If it is required to provide space for Organizational meetings and refuses to do so it is guilty of an unfair labor practice. A corollary issue is whether or not the public employer is required to provide meeting space to outside organizations, period.

    
    

13. Section 447.038 F.S. is nearly identical with Section 7 of the NLRA,

    29 USCA Section 157 and provides:

    
    

    "Employees shall have the right to self organization, to form, join, or

    assist labor unions or labor organizations or refrain from such activity, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual

    aid or protection."

    
    

14. Similarly 447.501(1)(a) F.S. is essentially identical with Section 8(a)(1) NLRA, 29 USCA Section 158 (a)(1) and provides:

    
    

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

    1. Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part."

15. Here no evidence was presented that SPJC had ever rented a classroom to a labor organization for any purpose. While a labor organization is exempt from income taxes pursuant to 26 USCA 501(c)(5) this does not equate a labor union to a civic, public service, or eleemosynary organization. Apart from CWA not being in the same category as civic groups to whom SPJC has traditionally rented available classrooms, there is no requirement that SPJC rent their available classrooms to anyone. Dade County Classroom Teachers Ass'n. Inc. v. Ryan, 225 So.2d 903 (1969). However, if they (SPJC) make classrooms available for the use by one labor organization but refuse to do so for another labor organization this could constitute an unfair labor practice.

    
    

16. If the CWA had been deprived of the only reasonable means available to communicate with the employees it desired to organize and represent, then the acts of the employer in interfering with those means could constitute an unfair labor practice. Here CWA complained that SPJC unduly delayed in submitting a list of employees and addresses, thus making it difficult to communicate with these employees by mail, telephone, or personal contact. However, it would not appear to be difficult for some of the employees CWA had contacted to obtain the names and addresses of the others.

    
    

17. No effort was made by SPJC to interfere with CWA talking to employees or distributing leaflets or other literature at the employees parking lot. Denial of even that opportunity by the employer in NLRB v. Babcock and Wilcox Co., 351 105, 76 S. Ct. 679 (1956) was held not to constitute an unfair labor practice. The court stated at page 112:

    
    

    "It is our judgment, however, that an employer may validly post his property against non- employee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employee with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution."

    
    

18. Section 447.501(1)(a) F.S. above quoted forbids interference; it does not compel cooperation. As the court in Babcock and Wilcox, supra, aptly stated:

    
    

    "The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization."

    
    

19. The Charging Party's contention that because the facilities here involved are public facilities, in the sense that SPJC is a publicly owned college as contrasted to privately owned facilities like the parking lot in the Babcock and Wilcox case, totally different principles apply, is without merit. The college buildings are certainly not public thoroughfares to which the public has the right of access at any time. The college has sole discretion, as noted in the Ryan case, supra, as to whom it will make its facilities available, so long as it treats all applicants of the same class equally. It could properly deny use of the facilities to one gay liberation group so long as it denies similar use by all gay groups. Likewise SPJC has sole discretion to refuse to rent available classroom space to CWA so long as it refuses to available classroom space to all rent labor organizations.

20. From the foregoing it is concluded that the refusal of SPJC to rent available classroom space to CWA as requested by CWA in its letter of July 14, 1976 did not constitute an unfair labor practice. It is therefore,

RECOMMENDED that the complaint be dismissed.

DONE and ENTERED this 11th day of April, 1977 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James M. Blue, Esquire Suite 940

Barnett Bank Building Tallahassee, Florida 32302

Rodney W. Smith, Esquire

204 West University Avenue Gainesville, Florida 32601

C. Anthony Cleveland, Esquire

Public Employees Relations Commission Suite 300 - 2003 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 76-002092

Orders for Case No: 76-002092