STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0860

)

KEVIN JINKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 10, 1997, by video teleconference at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132

For Respondent: Kevin Jinks, pro se

16220 East Bunch Park Drive Opa Locka, Florida 33054

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be demoted from his current position of Refrigeration Mechanic I to Trades Helper because of his failure to meet the requirements of his Training Agreement and Training Standards, in that he failed to obtain a valid refrigeration journeyperson's license (Certificate of Competency).

PRELIMINARY STATEMENT

By letter dated February 6, 1997, the Dade County School Board (School Board) notified Kevin Jinks that he was being demoted from his position as Refrigeration Mechanic I, effective February 5, 1997. By letter dated February 13, 1997, the Dade County School Maintenance Employee Committee, on behalf of

Mr. Jinks, requested a formal hearing to challenge the School Board's action. On February 24, 1997, this matter was referred to the Division of Administrative Hearings. Subsequently, on March 7, 1997, the School Board filed a two-count Notice of Specific Charges alleging, among other things, in Count I that Mr. Jinks failed to conduct himself in a manner that reflects credit upon himself and the School Board; and in Count II that Mr. Jinks was being demoted from a Refrigeration Mechanic I to a Trades Helper because of his failure to meet the requirements of his Training Agreement and Training Standards, in that he failed to obtain a valid refrigeration journeyperson's license (Certificate of Competency). At hearing, Petitioner withdrew Count I.

Further, at hearing, Petitioner presented the testimony of three witnesses and entered fifteen exhibits1 into evidence.

Respondent presented no testimony and entered no exhibits into evidence.

No transcript was ordered. The time for filing post-hearing

submissions was set for no later than ten days from the date of the hearing. The School Board filed proposed findings of fact and conclusions of law which have been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Kevin Jinks was employed by the Dade County School Board (School Board) as an Air Conditioning/Refrigeration (ACR) Mechanic I. Mr. Jinks is a member of the Dade County School Maintenance Employee Committee (Maintenance Employee Committee) collective bargaining unit, and the Maintenance Employee Committee's collective bargaining agreement is applicable to Mr. Jinks.

2. The Trainee Career Development Plan (Career Plan) has been collectively bargained and is applicable to Mr. Jinks.

3. The Career Plan is an orderly, well-defined career development plan for trainees in the construction and maintenance trades, and includes formal classroom training and related on- the-job training. The Career Plan provides trainees with periodic reviews and appropriate step (salary) increases as they advance through the Career Plan, preparing for increased responsibilities in their trade as they advance to a journeyperson's position.

4. A journeyperson is a skilled worker who has completed a formal apprenticeship program and has obtained a certificate of competency, also referred to as a license,2 in the trade in which

   the journeyperson works, if the trade is licensed. A journeyperson works independently and is held responsible for the job being performed. Also, supervision of the trainees in their trade is the responsibility of the journeyperson.

5. A trainee (apprentice) is an employee in the Career Plan, who is bound for a specified period of time by an agreement with the Trades Helper/Trainee Career Development Board (Trades Helper/Trainee Board). A trainee works under the supervision of a journeyperson to obtain on-the-job training in his trade skills and attends formal classroom instruction. Unlike the journeyperson, a trainee does not work independently and is not held responsible for the job.

6. The Trades Helper/Trainee Board oversees the advancement of the trainees. It meets quarterly to assess the progress of the trainees participating in the Career Plan, to provide counseling, and to make recommendations regarding a trainee's continuation in the Career Plan. The Trades Helper/Trainee Board decides whether to advance a trainee to the next step.

7. Trainees are required to complete the Career Plan within a specified time period. In Mr. Jinks' situation, a four-year training period is specified; however, trainees are provided five years in which to complete the four-year Career Plan.

8. Trainees are placed on notice by the Career Plan that the goal of the Career Plan is to make certain that trainees are "fully trained and licensed" and that trainees must obtain a

   certificate of competency to advance to the fifth and final step in the Career Plan.

9. The Career Plan advises trainees that they cannot remain trainees permanently. Further, the Career Plan advises trainees that, if they are not successful in the Career Plan, they are subject to administrative action, including reclassification to a trades helper position, i.e., a demotion.

10. At the time of hearing, 206 School Board employees had participated in the Career Plan. Out of the 206, 161 have become journeypersons; 16 have obtained their licenses and are awaiting an in-house skills examination; 10 have been demoted to trades helpers at a reduced salary; and 19 have left the Career Plan for various reasons.

11. The Career Plan is being phased out by the School Board. Trainee positions are no longer being staffed by the School Board; no new trainees are being added to the Career Plan by the School Board.

12. A trades helper is a laborer who also assists the journeyperson. No employment positions exist between the trades helper position and the trainee position.

13. Trades helpers are eligible for the Special Opportunities Program for Advancement through which a trades helper may become a journeyperson. Therefore, Mr. Jinks is not foreclosed from becoming a journeyperson for the School Board.

14. The Maintenance Employee Committee contract provides,

    in pertinent part, at Article IX, entitled "Working Conditions," as follows:

    Section 12. Trainees

    
    

    1. Trainees shall work under the supervision of a journeyperson. . . .

       
       

    2. All trainees will be hired at Step 1. All trainees will be in the Trainee Career Development Plan. The Trainee Career Development Plan will be governed by the Trades Helper/Trainee Career Development Board.

       
       

    3. The advancement of trainees through the Trainee Center Development Plan will be governed by a Trades Helper/Trainee Career Development Board whose membership shall consist of four voting members. These voting members will be the Supervisor of Adult Trade and Industrial and Apprenticeship Training in the Office of Vocational, Adult, Career, and Community Education; the Executive Directors

       (2) of the Office of Facilities Operations; and, [sic] the Manager of the Office of Facilities Operations. Additionally, a DCSMEC [Maintenance Employee Committee] representative and a representative from the Office of Personnel Management and Services may attend Trades Helper/Trainee Career Development Board meetings as observers.

       
       

    4. The Trades Helper/Trainee Career Development Board shall meet four times a year for the purpose of reviewing trainee requests for advancement in the Trainee Career Development Plan. . . .

       
       

    5. The Trades Helper/Trainee Career Development Board . . . will use the approved Division of Facilities Operations Administrative Procedures for the operation of the Trainee Career Development Plan. . . .

       The Trades Helper/Trainee Career Development Board is responsible for:

       
       

       1. Monitoring, recommending, and approving training programs for each trainee.

       2. Determining the appropriate step placement of each trainee in the Trainee Career Development Plan. Advancement to the appropriate step in the Trainee Career Development Plan required by the approved Office of Facilities Operations Administrative Procedures.

          
          

       3. Requiring each trainee to complete the Trainee Career Development Plan within the timeframes [sic] specified in approved Office of Facilities Operations Administrative Procedures.

          
          

       4. Trainees who successfully complete the Trainee Career Development Plan and hold a valid Certificate of Competency from Dade, Monroe, Broward, Palm Beach, or Collier County . . . are eligible for consideration for priority advancement to an open journeyperson position in their respective trade upon the recommendation of the Trades Helper/Trainee Career Development Board. . .

          
          

       5. Any trainee who fails to complete the Trainee Career Development Plan within the allotted timeframe [sic] will be subject to administrative action, including reclassification to trades helper position upon the recommendation of the Trades Helper/Trainee Career Development Board. Current employees who have exceeded the timeframes [sic] in their job position will meet with the Trades Helper/Trainee Career Development Board to be evaluated and to determine the appropriate training requirements and the timeframe [sic] that will be permitted to complete the Trainee Career Development Plan. Current employees who cannot or will not complete the Trainee Career Development Plan will be subject to administrative action.

15. The Maintenance Employees Contract provides further, in pertinent part, at Article XI, entitled "Disciplinary Action," as follows:

    Section 1. Notification

    
    

    Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated.

    Every effort shall be made to have an informal discussion with the employee, prior to the issuance of any disciplinary action.

    
    

    1. Any employee summoned for a Conference- for-the-Record (CFR) shall be given no less than two working days' notice, except in cases deemed to be an emergency. The notification shall contain a statement of the reason(s) for the CFR.

       
       

       An employee notified of a CFR which may lead to disciplinary action shall have the right to request Union representation and shall be so informed of this right. . . .

       
       

       * * *

       
       

       Section 2. Dismissals, Suspensions, Reductions-in-Grade

       
       

       Employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer who

       shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. . . .

       
       

16. On June 25, 1985, Mr. Jinks began his employment with the School Board. On February 19, 1986, he entered Step 1 of the Career Plan. Mr. Jinks was advanced as he completed schooling and on-the-job training. On November 28, 1986, he reached

    Step 2. Mr. Jinks skipped Step 3 and advanced to Step 4 on November 27, 1987. At Step 4, he began receiving 75 percent of a journeyperson's salary.

17. To reach Step 5, the only requirement for Mr. Jinks to satisfy was to pass the licensing examination, which could be taken in several counties, namely, Broward, Collier, Dade, Monroe, or Palm Beach. The School Board has no control over the licensing examinations or process. The examinations are given frequently enough that Mr. Jinks could have taken at least one examination per month. No limitation is placed on the number of times an examination may be taken.

18. Mr. Jinks began his four-year Career Plan on September 1, 1988, when he signed his formal Training Agreement and Training Standards, in which he acknowledged that a failure

    to complete the Career Plan would result in his becoming a trades helper. Mr. Jinks four-year Career Plan expired on

    September 1, 1992, and his automatic fifth year expired one year later, September 1, 1993.

19. As of November 27, 1987, Mr. Jinks was eligible to take the licensing examination. However, he did not begin taking the examination until 1995, well after his fifth and final year.

    Mr. Jinks submitted documentation of having taken the examination only once, which was in 1995 and which he failed.

20. Trainee reviews were held with Mr. Jinks on several occasions, including December 15, 1993, June 29, 1994, September 30, 1994, March 1995, and June 1995. At each review meeting, Mr. Jinks was given extensions. At each review meeting, the requirement to pass the licensing examination was stressed, and

    Mr. Jinks was put on notice that, if he did not pass the licensing examination and obtain a certificate of competency, he would be subject to demotion to a trades helper and that, as a consequence, his salary would be reduced. Furthermore, written notice was provided to Mr. Jinks on August 3, 1994, November 7, 1994, and November 7, 1996.

21. On November 7, 1996, in accordance with Article IX, Section 12.E.5, of the Maintenance Employee Committee contract and with Mr. Jinks' Training Agreement, the Trades Helper/Trainee Board recommended that Mr. Jinks be demoted to trades helper for his failure to comply with his Training Agreement and Training Standards. As of November 7, 1996, Mr. Jinks had had approximately nine years to pass the licensing examination and reach Step 5 of the Career Plan.

22. On December 5, 1996, a Conference-for-the Record was held with Mr. Jinks at which he failed to produce proof of licensure. As a result, the recommendation for demotion continued to be processed. Furthermore, Mr. Jinks was notified that, if he could produce official documentation of passing the licensing examination prior to the School Board taking action, the recommendation would be rescinded.

23. Demotion is the established practice under the Maintenance Employee Committee contract for similarly situated employees.

24. On February 5, 1997, the School Board voted to demote

    Mr. Jinks to the position of trades helper.

    
    

25. Mr. Jinks challenged the School Board's action and requested a formal hearing.

26. After the School Board's action and prior to hearing, Mr. Jinks again took the licensing examination. At the time of hearing, he was awaiting the results.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

28. The School Board has demonstrated that Mr. Jinks failed to obtain a journeyperson's certificate of competency or license, within the time period specified in his Training Agreement and Training Standards and that he was aware of the terms and conditions of employment in a trainee position and was reminded of those terms from time to time. Furthermore, the School Board has demonstrated that Mr. Jinks was given generous extensions by the School Board to obtain his license. Under the circumstances demonstrated in this case, demotion, pursuant to Article IX, Section 12.E.5 of the Maintenance Employee Committee contract, is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Dade County School Board enter a final order demoting Kevin Jinks to the position of Trades Helper.

DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997.

ENDNOTES

1/ Petitioner's Exhibit No. 7 was separated into two exhibits, i.e., Exhibit No. 7A and Exhibit No. 7B.

2/ A "certificate of competency" and a "license" are used interchangeably.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132

Kevin Jinks, pro se

16220 East Bunch Park Drive Opa Locka, Florida 33054

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue No. 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000860

Orders for Case No: 97-000860