STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COMMUNITY COLLEGE )

FEDERATION OF TEACHERS, )

LOCAL NO. 1847, )

)

Petitioner, )

)

vs. ) CASE NO. 77-051

) PERC NO. 8H-CA-764-4213

BREVARD COMMUNITY COLLEGE. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on March 17, 1977, in Cocoa, Florida.

APPEARANCES

For Charging Party: Ken Megill

FEA/United

208 West Pensacola Street Tallahassee, Florida 32304

For Respondent: W. Reynolds Allen, Esquire and

Donald H. Wilson, Esquire

Hogg, Allen, Ryce and Norton, P.A.

225 Alcazar Avenue

Coral Gables, Florida 33134

Also appearing: Jane Rigler, Esquire

Staff Attorney for William Powers General Counsel

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Upon a charge filed by the Brevard Community College Federation of Teachers, Local No. 1847, here-in called the Charging Party or the Employee Organization, a copy of which was duly served on the Respondent on or about December 2, 1976, the General Counsel of the Public Employees Relations Commission, herein called PERC or the Commission, issued a complaint and notice of hearing on March 1, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Chapter 447.501(1)(a) and (c), Florida Statutes, (herein sometimes referred to as the Act). Copies of the charge, complaint and notice of hearing before a duly designated Hearing Officer of the Division of Administrative Hearings were duly served on the parties to this proceeding.

With respect to the unfair labor practices, the complaint alleges in substance that on May 13, 1976, the Chairman of the Commission duly certified the Charging Party as the representative of Respondent's employees in the unit found appropriate; 1/ and that, commencing on or about May 18, 1976, and continuing to date, the Charging Party has refused and continues to date, to refuse to bargain collectively with the employee organization as the certified representative, although the employee organization has requested and is requesting it to do so. Thereafter the Respondent filed its answer to the complaint admitting in part and denying in part, the allegations in the complaint.

At the outset of the hearing herein, counsel for the General Counsel filed a Motion for Summary Judgement. Respondent opposes the General Counsel's motion and advanced its position that its continued refusal to bargain is not illegal based independently and collectively on three separate grounds: (1) the Employer was denied due process by PERC's refusal to grant a hearing on its objections to the election, (2) new evidence which is material and relevant to the Employer's unfair labor practice charges and its objections to the election regarding the union's filing of a meritless unfair labor practice charge immediately preceding the election and the union's conduct in relation thereto is now available and should have been admitted as evidence by the undersigned and considered by PERC, (3) the bargaining unit which was agreed to by the parties and PERC is technically inappropriate because of the inclusion of professional and non-professional employees without the holding of a separate election. During the course of the hearing and after hearing Respondent's proffer of evidence which it contends is newly discovered and warrant reconsideration, I tentatively granted the General Counsel's Motion for Summary Judgement and advised the parties that I would issue a final ruling and recommended order upon the receipt and my consideration of briefs from the parties.

Upon the entire record in this proceeding, I make the following: RULING ON THE MOTION FOR SUMMARY JUDGEMENT

In its answer to the complaint and in its opposition to the motion for summary judgement Respondent admits in substance, all the factual averments of the complaint, including its refusal to recognize and bargain with the Charging Party. It denies, however, the validity of the certification because it questions the union's right to represent the employees in the unit certified by PERC to be appropriate; because it was not afforded a hearing on its objection to the election and based on its contention that new material and relevant evidence was proffered regarding the union's filing of a meritless unfair labor practice charge immediately preceding the election and the union's conduct in relation thereto which should now be considered by the undersigned and by PERC.

The record in the underlying representation proceeding indicates that a secret ballot election was conducted on or about February 22, 1977, in which the Charging Party received the majority of the valid votes cast in a unit that had been agreed to between the Respondent and the Charging Party and which was approved by the Chairman of PERC. The unit certified as appropriate is as follows:

INCLUDED: All full-time teaching faculty, librarians and counselors of the public employer.

EXCLUDED: All other employees of the public employer.

Respondent filed timely objections to the election which were there-after investigated and on or about May 12, 1976, the Chairman of PERC issued his recommended order in which he discussed the various objections and found them to be without merit.

The Respondent filed a request for review to the public Employees Relations Commission seeking a review and reversal of the Chairman's report on its objections to the election. On or about October 19, 1976, the Commission upheld its Chairman and certified the labor organization involved as the exclusive bargaining agent for all the employees in the above described unit which as stated, had previously been agreed to by the parties and approved by the Chairman.

In the meantime, and simultaneously with the filing of the objections to the election referred to above, the employer also filed unfair labor charges against the Charging Party. That case was designated by PERC as Case No. 8H-CB- 764-4012.

PERC's Acting General Counsel dismissed the employer's unfair labor practice charges, which was appealed to the Chairman of PERC by filing a timely request for review. On January 25, 1977, Employer's request for review was argued orally before the Chairman of PERC and Commissioner M. Calman Gitmomer. Pursuant to PERC Rule 8H-4.02, the Acting General Counsel's dismissal was upheld.

It is well settled, that in the absence of newly discovered or previously unavailable evidence or special circumstances, a Respondent in a preceding alleging a violation of its duty to bargain within the meaning of Florida Statutes 447.501(1)(a) and (c), is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 2/

All of the issues that the Respondent now raises in this proceeding were or could have been litigated in the prior representation proceeding and while the Respondent now offers evidence which it contends is newly discovered or was previously unavailable and warrants consideration, such evidence is not of the kind in which the courts in unfair labor practice cases have examined and otherwise considered as requiring a reexamination of the decision made in the representation proceeding. No contention is made that certain unit employee classifications have been changed since the certification issued. Additionally, certifications are considered presumptively valid for a reasonable period of time. Finally, I am without the authority to reexamine certifications. Chapter 447.307(3)(a), Florida Statutes. I shall therefore find that the Respondent has

not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly I shall grant the Motion for Summary Judgement.

On the basis of the entire record, I make the following: FINDINGS OF FACT

The Business of the Respondent

1. The complaint alleges, the Respondent admits and I find that the Respondent is a public employer within the meaning of Chapter 447, Florida Statutes.

   
   

   The Employee Organization Involved

   
   

2. The complaint alleges, the Respondent admits and I find that the Charging Party is an employee organization within the meaning of Chapter 447, Florida Statutes.

   
   

   The Unfair Labor practices

   
   

   The Representation proceeding

   
   

3. The Unit: The following employees of the Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 447.307(4), of the Act:

   
   

   INCLUDED: All full-time teaching faculty, librarians and counselors.

   
   

   EXCLUDED: All employees not specifically included.

   
   

4. The Certification: On or about March 3, 1976, the majority of the employees of the Respondent in a unit described above, by secret ballot election conducted under the supervision of the Commission, in Case No. 8H-RC-754-4219, designated and selected the Charging Party as their representative for the purposes of collective bargaining with Respondent, and on May 18, 1976, the Chairman of the Commission, on behalf of the Commission, certified the Charging party as the exclusive bargaining representative of the employees of the said unit. The Commission confirmed the certification by order dated October 19, 1976.

   
   

   The Request to Bargain and Respondent's Refusal

   
   

5. Commencing on or about nay 18, 1976, and at all times thereafter, the Charging Party has requested the Respondent to bargain collectively with it as the exclusive bargaining representative of all the employees in the above- described unit. Commencing on or about September 29, 1976, on October 28, 1976, and on November 10, 1976, and continuing, Respondent refused to bargain collectively with the Charging Party despite requests as the certified representative for the purposes of collective bargaining, in the above-described appropriate unit. By such refusal, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Chapter 447.501(1)(c) and (a), of the Act.

   CONCLUSIONS OF LAW

   
   

6. The parties to this proceeding were duly noticed pursuant to the notice provisions in Chapters 120 and 447, Florida Statutes.

   
   

7. The Charging Party is a labor organization within the meaning of Chapter 447.203(10), Florida Statutes.

   
   

8. The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Chapter 447307(4), of the Act:

INCLUDED: All full-time teaching faculty, Librarians and counselors.

EXCLUDED: All employees not specifically included.

By its refusal to recognize the Charging Party as the certified representative of the employees in the above described unit, the Respondent has engaged in conduct violative of Chapter 447.501(1)(c) and (a), of the Act.

Based on the foregoing findings of fact and conclusions of law I hereby make the following:

RECOMMENDATION

1. The General Counsel's Motion for Summary Judgement is hereby granted.

   
   

2. The Respondent shall cease and desist from refusing to bargain collectively with the Charging Party.

   
   

3. The Respondent cease and desist from interfering with, restraining and coercing public employees in the exercise of their rights guaranteed under the Act.

   
   

4. That Respondent post an appropriate notice on forms provided by PERC in conspicuous places.

DONE AND ENTERED this 4th day of May, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Official notice is taken of the record in the representation proceeding Case No. 8H-RC-754-4219.

2/ See Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146,162 (1941).

COPIES FURNISHED:

Ken Megill FEA/United

208 West Pensacola Street Tallahassee, Florida 32304

W. Reynolds Allen, Esquire and

Donald H. Wilson, Esquire

of the firm Hogg, Allen, Ryce & Norton, P.A.

225 Alcazar Avenue

Coral Gables, Florida 33134

Jane Rigler, Esquire

Staff Attorney for William Powers General Counsel

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Docket for Case No: 77-000051

Orders for Case No: 77-000051