STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVANUS C. WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0320

)

ANCO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

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 March 28, 1984, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Alvanus C. Walker, pro se

5512 Court "J"

Birmingham, Alabama 35208

For Respondent: C. Todd Allen, Esquire

Post Office Box 3324 Tampa, Florida 33601

By Petition dated January 11, 1983, Alvanus C. Walker, Petitioner, alleges he was discriminated against by Anco, Inc., Respondent, in employment by reason of his race (black) This complaint was investigated by the Florida Commission on Human Relations and a Determination of No Cause was filed by the Commission on December 28, 1983. Thereafter, Petitioner requested further proceedings and the case was referred to the Division of Administrative Hearings.

At the hearing Petitioner testified in his own behalf, Respondent called one witness, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner was employed as a journeyman sheet metal worker at the Florida Power and Light Crystal River project in May, 1982. At the time of his employment, the local union could not provide the sheet metal workers required by Respondent and Petitioner, with others, were hired as "travelers" as opposed to locals. Petitioner was qualified for the job held.

   
   

2. In August, 1982, Petitioner was injured on the job and was placed on worker's compensation and returned to Alabama until he recovered. While Petitioner was on worker's compensation, the project on which he was working neared completion and it became necessary to reduce the number of workers employed thereon.

3. Pursuant to an unwritten agreement between the union and Anco, "travelers" are the first to go when the work force is to be reduced. Thereafter, pursuant to the contract (Exhibit 1), the employer can lay off as he deems necessary to keep the best qualified people without regard to seniority. In accordance with this unwritten policy most of the "travelers" quit when the reduction of work made their jobs redundant. Some of those leaving were from Petitioner's Alabama union and were asked to tell Petitioner not to return to work unless called. None of these employees so advised Petitioner.

   
   

4. The local union provides all applicants for jobs at Anco. If available these always comprise members of the local union. If the trades needed are unavailable, the union notifies sister unions located elsewhere and members of those unions may apply for the job openings. These are "travelers" and are expected to leave the job to make room for locals anytime the latter become "idle" (out of work)

   
   

5. Petitioner returned to the job site September 26, 1982. At that time no "travelers" were employed as sheet metal workers. To help compensate Petitioner for his expenses in returning to the job site from Alabama, petitioner was put back to work for two days before he was discharged on September 23, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. In a discrimination case the Petitioner has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If the Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's rejection. Should the Respondent carry this burden, the Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 420 U.S. 249, 252-3, 101 S Ct. 1059, 1093, 67 L.Ed.2d 207(1981).

   
   

8. Petitioner's prima facie case that he was qualified for the job and is black was rebutted by Respondent's uncontradicted evidence concerning its agreement with the union that locals take preference over "travelers" in hiring. The evidence presented was that this unwritten agreement is applied throughout the United States between labor and management and is not restricted to the particular local union here involved. At the time Petitioner returned to the job site all "travelers" working on the project in which Petitioner was working had left. Most had quit and those that did not quit were fired.

   
   

9. Petitioner presented no evidence to show Respondent's nondiscriminatory reason for his firing was simply a pretext and that the firing was racially motivated. No evidence was presented that Respondent had discriminated against blacks in other situations or that black applicants were treated differently than other applicants. To the contrary, the evidence was unrebutted that Respondent advised the local union of the job skills needed and the union provided workers meeting these requirements.

10. From the foregoing it is concluded that Alvanus C. Walker was discharged from this job at Anco, Inc., solely because of a reduction in the work force and because he was a "traveler" who, as a class, is discharged before locals. It is therefore

RECOMMENDED the complaint filed by Alvanus C. Walker against Anco, Inc., that he was unlawfully discharged by reason of his race be dismissed.

ENTERED this 16th day of April, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1984

COPIES FURNISHED:

Alvanus C. Walker 5512 Court "J"

Birmingham, Alabama 35208

C. Todd Allen, Esquire Post Office Box 3324 Tampa, Florida 33601

Donald A. Griffin, Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

Docket for Case No: 84-000320

Orders for Case No: 84-000320