STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY POLICE )

BENEVOLENT ASSOCIATION, )

)

Charging Party, )

)

)

vs. ) CASE NO. 77-267

) PERC NO. 8H-CA-766-2152

CITY OF OCALA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to a charge filed August 17, 1976, by Donald D. Slesnick, II, Attorney for the Charging Party, alleging violations of 447.501(a) and (e), of the Public Employees Relations Act (herein sometimes referred to as PERA or the Act), the General Counsel of the Public Employees Relations Commission (hereinafter sometimes referred to as PERC or the Commission) filed a complaint and notice of hearing on March 23, 1977. On March 30, 1977, the Respondent, by and through its counsel, filed an answer denying the commission of any unfair labor practices as alleged. Thereafter, the parties agreed to waive the necessity of a hearing and to submit the matter to this Division for a decision on written briefs based on the issues posed by the administrative complaint and the answer as amended, filed by the Respondent. By order dated April 22, 1977, the undersigned permitted the parties to utilize the procedure of submitting the matter for decision based on written briefs.

APPEARANCES

Seymour H. Rowland, Jr., Esquire

105 Legal Center

19 Northwest Pine Avenue Ocala, Florida 32670

Jane Rigler, Esquire Staff Attorney

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Donald D. Slesnick, II, Esquire 2540 Northwest 29th Avenue Miami, Florida 33142

Attorney for the Charging Party

FINDINGS AND CONCLUSIONS

1. The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act.

2. The complaint alleges, the Respondent admits and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act.

   
   

3. The complaint alleges, the Respondent admits and I find that on or about December 2, 1976, the Public Employees Relations Commission issued a certification certifying the Charging Party as the exclusive bargaining representative for the public employees in the following unit:

   
   

   INCLUDED: Patrolmen, Patrolmen 1st class, Master Patrolmen, Evidence Technician, and Traffic Enforcement officer.

   
   

   EXCLUDED: All other employees of the Ocala Police Department including Sergeants who are shift commanders.

   
   

4. The pleadings establish that during 1972, the Respondent, by and through its City Council, promulgated a City Ordinance (Chapter 13B of the Ocala Code) which regulates labor relations for its employees. Chapter 13B has remained in full force and effect and has never been approved by the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes (1975). Among other things, the ordinance provides that:

   
   

   "Solicitation for membership in a labor organization or the collection of dues therefor, or other internal affairs of a labor organization shall not be con- ducted by employees on working time, or on city premises. Labor organization literature, pamphlets, handbills and the

   like shall not be distributed in the work areas of the city premises at any time." (See Section 13B-8.)

   
   

5. A summary review of the parties' joint exhibits demonstrate that Chapter 13B attempts to regulate nearly all aspects of a collective bargaining relationship. In PERC v. The City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) the court determined that an entity may not assume jurisdiction of a public employee bargaining procedure until PERC has approved that procedure. In this case, no such approval has been granted by PERC as it is required pursuant to 447.603, Florida Statutes (1975). Further comparison of the provisions of Chapter 13B of the Ocala Code and Chapter 447, Florida Statutes, lends support to the conclusion that Respondent's employees' collective bargaining rights are not on a parity with those rights guaranteed them by Chapter 447, Florida Statutes. For example, 13B-1(c) of the ordinance defines "supervisor" and section 13B-1(b) defines "employee". Supervisors are excluded from the definition of employee and thereby from collective bargaining whereas Chapter

447 contains no definition of supervisor and the Commission consistently determines that supervisors are entitled to protections guaranteed by Chapter

447. See CWA and Hillsborough County Hospital and Welfare Board, case no. 8H- RC-752-0175, 2 FPER 46 (1976); Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 2 FPER 72 (1976). Additional distinctions are found respecting the definition of confidential employees and the determination by despondent in its code of "bargainable" subjects. It was noted that Respondent does not consider itself required to negotiate with respect to wages, hours and

terms and conditions of employment. See the May Department Stores Co., 191 NLRB 928 (1972). While Chapter 447 vests all authority respecting appropriate unit placement of employees with PERC, Chapter 13B-2(b)(1) authorized Respondent's City Manager to make such determinations.

1. A further examination of Chapter 13B of the Ocala Code reveals that it makes a striking distinction between the authority guaranteed employees respecting the proper bounds for solicitation-distribution rules. Chapter 447.509, Florida Statutes, provides in pertinent part that during an employee's lunch hour, an employer may not restrict solicitation and distribution whereas Chapter 13B of the Respondent's Code restricts solicitation and distribution during working time and on the premises of the City, making no exception or distinction for lunch breaks and therefore Respondent's maintenance of such provisions amounts to unlawful interference, restraint and coercion within the meaning of Section 447.501(1)(a), Florida Statutes. Although the Respondent defends in part on the fact that no employee had been disciplined for violating the above referenced rules, legions of cases have held that the maintenance, without enforcement of an overly broad solicitation-distribution rule constitutes an unfair labor practice. (See for example Essex International, Inc., 211 NLRB 934, 86 LRRM 1411; Dreis and Krump Manufacturing, Inc., 221 NLRB 309, 90 LRRM 1647 (1975).

   
   

   CONCLUSIONS OF LAW

   
   

2. The parties were properly noticed pursuant to the notice provisions of Chapters 120 and 447, Florida Statutes.

   
   

3. The authority of the Commission is derived from Chapter 447, Florida Statutes.

   
   

4. The Respondent is a public employer within the meaning of Chapter 447.203(2), Florida Statutes.

   
   

5. The Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act, and has been certified as the exclusive bargaining representative for Respondent's employees in the above described unit.

   
   

6. The Respondent, by maintenance of Chapter 13B of the Ocala Code which regulates labor organization and Respondent's employees without the approval of the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes, constitutes conduct violative of Section 447.301(1)(2) and 447.03 of the Act. Based thereon, the Respondent engaged in conduct which amounts to a derivative violation of Section 447.501(1)(a) of the Act.

RECOMMENDATION

Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to:

A. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by the Commission, a notice substantially providing: that it will not in any like or related manner interfere with, restrain, or coerce its employees in the exercise of any of the rights guaranteed them under the Florida Public Employees Relations Act; that it will upon request of the above-named employee organization, rescind the applicability of Chapter 13B of the Ocala Code as it

relates to the regulation of organizational rights of employees, without having been first approved by the Commission.

RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Seymour H. Rowland, Jr., Esquire

105 Legal Center

19 N.W. Pine Avenue Ocala, Florida 32670

Jane Rigler, Esquire Staff Attorney

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue

Miami, Florida 33142

Docket for Case No: 77-000267

Orders for Case No: 77-000267