The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
Findings Of Fact The UBC filed it's petition with PERC on April 16, 1975. (Hearing Officer's Exhibit #1). The HMREBU filed it's petition with PERC on May 7, 1975. (Hearing Officer's Exhibit #9). The Laborers filed it's petition with PERC on June 16, 1975. (Hearing Officer's Exhibit #5). The hearing in these cases was scheduled by separate notices dated July 9, 1975. (Hearing Officer's Exhibits #2, 6, and 10). The Escambia County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (See: transcript of proceedings 1/ at page 7). The UBC, the HMREBU, and the Laborers are Employee Organizations within the meaning of Florida Statutes, Section 447.002(10). (Stipulation TR 8). There is no contractural bar to holding representation elections in these cases. (Stipulation, TR 8, 9). There is no relevant collective bargaining history that affects these cases. (Stipulation, TR 9). The UBC, the HMREBU, and the Laborers are properly registered with PERC. (Hearing Officer's Exhibits #3, 7 and 11; Stipulation TR 10). PERC has previously determined that the UBC, the HMREBU, and the Laborers have filed the requisite showing of interest with their petitions. (Hearing Officer's Exhibits #4, 8, and 12). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties have stipulated that in the event PERC certifies a collective bargaining unit substantially similar to the one proposed by the Laborers, the positions of Transportation Director, Route Supervisor, Garage Foreman, and Assistant Garage Foreman should be excluded from the unit. (Stipulation TR 205, 206). In the event that a collective bargaining unit substantially similar to the one proposed by HMREBU is certified by PERC, the parties have stipulated that the Director of School Food Service, the Assistant Director, and the Lunchroom Managers should be excluded from the unit. (Stipulation TR 208, 209). In the event that a collective bargaining unit substantially similar to the one proposed by the UBC is certified by PERC, the parties have stipulated that the Supervisory Custodian, the Custodian in Charge, and the Custodial Foreman should be included within the unit. (Stipulation TR 210, 211). The Public Employee Relations Commission has previously certified a collective bargaining unit consisting of instructional personnel employed by the School Board of Escambia County. Each of the proposed units described in the petitions of the Employee Organizations in these cases include only non- instructional personnel. There are approximately 1740 persons employed by the Public Employer in non-instructional positions. Approximately 300 of these employees would be included within the unit proposed by the UBC. Approximately 230 would be within the unit proposed by HMREBU. Approximately 190 would be within the unit proposed by the Laborers. A civil service system, created by a special act of the legislature, has been in operation in Escambia County since 1953. See: Laws of Florida, Chapter 74-480 (1974). A Civil Service Board maintains a classification and salary plan, provides a central pool for testing and classifying new employees, and participates in an annual review of the salaries of classified employees. The Civil Service Board provides it's services for tide Public Employer in this case, and for other governmental entities within Escambia County, including the county. The classification system utilized by the School Board is the same as that utilized by the county. An employee of the School Board with a given classification would have the same qualifications, would perform approximately the same duties, and would receive the same salary and benefits as an employee of the county with the same classification. There are frequent transfers of employees covered by the civil service system among the governmental entities in Escambia County. All of the non-instructional personnel employed by the Public Employer, including all of the employees within the proposed collective bargaining units, are covered by the civil service system. All of these employees have salaries as set out in the civil service salary plan. The same sick leave and vacation leave policy, grievance procedure, disciplinary procedure, promotional process, insurance benefits, and retirement plan apply to all of these employees. It would be more time consuming for the Public Employer to engage in collective bargaining with several collective bargaining units than with one unit. During the week prior to the hearing in these cases the Public Employer's negotiating team spent four days in negotiations with the bargaining representatives of instructional personnel. Assuming that the bargaining representatives of several units successfully negotiated dues deductions, it is proper to assume that the existence of several units would place added bookkeeping chores upon the Public Employer. The three units for which certification is being sought include less than 40 percent of the non- instructional personnel employed by the Public Employer. Employees within the three proposed bargaining units are not interchangeable with one another. Custodial employees are not interchangeable with lunchroom employees, nor with bus drivers and mechanics, and so on. Employees within the three units have very little job contact with one another. Custodians perform limited functions in the lunchroom; however, custodians and lunchroom employees are not likely to have any contact with bus drivers or mechanics. Bus drivers and mechanics spend the greater portion of their work day off of the school campuses as distinguished from custodians and lunchroom employees. Custodians and lunchroom employees are supervised by the school principals. Bus drivers and mechanics are supervised by the Board's Director of Transportation, except that bus drivers are supervised by the school principals during the times they are carrying children to and from the schools. The work performed by personnel in the proposed units is very different, and lateral transfers between the proposed units are not likely to ever occur. While there is no collective bargaining history indicating a pattern of dealing with the proposed units separately, there has been a school food services association which performs social functions for food service employees. ENTERED this 6 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
The Issue The issue is whether Petitioner should terminate Respondent's employment because she excessively used the internet for personal matters unrelated to her work while she was on duty at her assigned computer terminal.
Findings Of Fact Petitioner is the governing board of the Marion County School District. At all times material to this proceeding, Petitioner had a written internet usage policy for its employees. The policy states as follows in pertinent part: District computers, network access, and other information resources such as electronic mail (e-mail) are provided for staff use to support the District mission and goals. All such resources are District property, and subject to the same rules for use as other physical property. In addition, the following rules shall apply: Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized. E-mail, World Wide Web pages, and other forms of electronic documentation: Will not be obscene, abusive, or contain other inappropriate material. Will require the same handling as other public records. User accounts and passwords must not be shared except where authorized. The person in whose name an account is issued in responsible for its proper use at all times. Copyright and license agreements will be respected; no unauthorized copies of programs or files will be made. Users shall not take unauthorized actions which gain access or attempt to gain access to, deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems. However, the written policy was not disseminated or discussed with Respondent or any other employees. Instead, Petitioner's employees generally understood that they could use the internet for personal reasons during their two 15-minute breaks and their one-hour lunch break for a total of one and a half hours a day. Respondent worked for Petitioner for 12 years. She began working as a data entry clerk in the Applied Technology Department. In time, Respondent was promoted to the position of a computer lab technician in the same department. Respondent's job involved gathering data on students in Petitioner's middle and high school vocational programs and electronically transmitting the information to the Florida Department of Education (DOE). Her primary job required her to code and edit the information, correcting any problems identified by DOE so that Petitioner could receive the appropriate funding for its vocational programs. Respondent required more time to complete her primary duties at certain times of the year depending on DOE reporting requirements. At other times of the year, Respondent was able to complete her work with time to spare. Kathy Clarke worked with Respondent in the Applied Technology Department. Respondent showed Ms. Clarke and other people in the department how to protect the privacy of the department's computers by using a screen-saver password. Ms. Clarke chose "kiss" as the screen-saver password. Several employees, including Respondent, used the same screen-saver password so that, if necessary, they could access each other's computers. In June 1999, Petitioner furnished Respondent with a new Mackintosh desk-top computer that was delivered without the appropriate internal zip drive. Respondent immediately installed a software password protection program on her computer. When Petitioner received the zip drive for Respondent's computer, Petitioner arranged for outside computer technicians to install it. Respondent was not in the office when the outside computer technicians arrived. The outside computer technicians and Kathy Clarke waited 45 minutes for Respondent to return to the office because they did not know the software password to access Respondent's computer. When Respondent returned to her office, she installed the zip drive herself. At or near the end of 1999, Petitioner transferred Respondent from the Applied Technology Department to the Management Information Services (MIS) Department. The transfer from one department to another required the physical relocation of Respondent's desk and computer, but her duties in relation to transmitting information to DOE for the vocational programs remained the same. Anthony Burke became Respondent's supervisor in the MIS Department. He assigned Respondent additional duties on an as needed basis. These duties included answering the phone, passing out maps, mailing out notices, scanning records, greeting walk-in clients, and generally helping her co-workers when they got behind in their work. On some occasions, Respondent willingly accepted these assignments; on other occasions, she acted as if she resented doing any work except her primary responsibility of transmitting vocational educational data. In the latter event, Respondent would tell her supervisor that she was too busy to perform other duties. When Respondent set up her workstation in the MIS Department, she located her computer monitor with the screen facing a storage area. The position of the monitor made it difficult for others in the office to casually observe the monitor's screen. In April or May 2001, Mr. Burke decided to reconfigure the workstations within the MIS Department so that employees with highly specialized work would not be located in the flow of walk-in traffic. The reconfiguration of the workstations resulted in Respondent being moved to the front of the office and next to Tanya Eason. Respondent objected to being placed next to Ms. Eason with whom Respondent had a personality conflict. Respondent informed Mr. Burke about her displeasure over the move to the front of the office. She claimed that being in the new location with an obligation to back up Ms. Eason, the "office secretary and greeter," would interfere with Respondent's duties related to vocational programs. Mr. Burke responded that he intended to proceed with the reconfiguration plan as soon as possible. Respondent had a personal relationship with Jim Warford, Superintendent of Marion County School District, because he had taught Respondent's daughter. Based on that relationship, Respondent had a conversation with Superintendent Warford about her concerns with the changes in the MIS Department. Subsequently, Mr. Burke became aware that Respondent had spoken to Superintendent Warford about problems in the MIS Department. After discussing his concerns with Respondent and for at least a couple of months, Mr. Burke did not acknowledge or speak to Respondent except in the context of a departmental meeting. After the reconfiguration of the workstations in the MIS Department, Mr. Burke observed that Respondent was generally busy at her computer terminal. However, Respondent's workstation was once again set up so that one could not observe her monitor's screen without entering her work station and standing behind or adjacent to her. In October 2001, Mr. Burke and Christopher Mendola, Director of Information and Technology Services, discovered information that led them to question whether Respondent had breached Mr. Burke's e-mail security. After the close of business on October 16, 2001, Mr. Burke and Mr. Mendola took Respondent's computer off of her desk. When Respondent returned to work on October 17, 2001, she had no idea why her computer was missing. At approximately 4:00 p.m., on October 17, 2001, Respondent attended a meeting with Mr. Mendola, Mr. Burke, and Jim Noell, Petitioner's personnel director. At that time, Respondent was informed that her computer was taken because she had been seen trying to access Mr. Burke's e-mail in a web design class. Respondent denied that she had breached anyone's e-mail security. She explained that during a web-design class, her e-mail had been so easy to access through Outlook Express that she used Mr. Burke's name to see if other e-mail addresses were as easily accessible. During the October 17, 2001, meeting, Mr. Mendola asked Respondent whether she ever used the internet for personal reasons because it was inappropriate to do so on "company time." Respondent replied emphatically that she did not use the internet for personal reasons. Mr. Mendola was in possession of Respondent's computer for approximately one month. During that time, Respondent was assigned alternative duties. Because she did not have an office computer with internet capabilities, Respondent could not perform her duties related to the vocational program. Mr. Mendola had Respondent's computer placed in a secure location in his office. Mr. Mendola could start the computer but could not access the computer's contents due to a password protection program. Respondent would not provide Mr. Mendola with the password but she agreed to disable the password protection program. Mr. Mendola did not find evidence that Respondent had made any effort to access Mr. Burke's e-mail from her office computer. He did find evidence that a large number of internet websites, unrelated to work, had been extensively accessed on Respondent's computer. Among the information stored on Respondent's hard drive were "favorite" or "book-marked" sites organized into categories. Mr. Mendola began looking through the caché, a temporary storage area, in Respondent's computer. In the caché, he found pictures and documents, indicating that Respondent's computer had accessed at least 33 internet sites. The caché contained hundreds of photographs of people from internet-dating sites. The dating sites included "Welcome to Dating.com," and "www.Homecams.com." Access to the "www.Homecams.com" site was blocked by filter that Petitioner uses to prevent retrieval of inappropriate internet sites. Subsequently, a second password protection program appeared on Respondent's computer, preventing Mr. Mendola from accessing other areas of Respondent's hard drive. Respondent had to disable the second password protection program before Mr. Mendola could proceed with his investigation. Mr. Mendola's continued investigation revealed one internet site that was related to Respondent's work. The name of that site was "Work Force Development." Next, Mr. Mendola performed a hard drive recovery. He recovered thousands of internet files unrelated to Respondent's work. Some files could not be recovered because they had been written over. Mr. Mendola began looking for files that were recoverable and so large in size as to be significant. He found that approximately 25 percent of Respondent's hard drive contained at least 10,000 such files. Many of these files were bookmarked so they could be easily accessed at a later date. The files came from internet sites related to travel, perfumes, and other commercial sites, together with one education site. The files on Respondent's hard drive also included a lot of "see-me cam sites" where people had cameras set up, projecting pictures from their living rooms or bedrooms every five to ten minutes, or cameras to view cars crossing a bridge. Some of the "see-me cam sites" that were listed in Respondent's history list could not be retrieved from Mr. Mendola's office because of the filter that Petitioner uses to block inappropriate or pornographic internet sites. During the hearing, Respondent suggested that telephone repairmen who were working in the vicinity of her office might have accessed her computer after hours. She asserted that she installed a password protection program on her computer at that time. This would account for Respondent's having two such password protection programs on her computer. However, there is no credible evidence that any access by the repairmen would have resulted in the list of "bookmarks" and "favorites" found in Respondent's hard drive. Additionally, there was no credible evidence that the repairmen had access to her computer during the dates and times that print-outs of her internet usage show the activity to have occurred. To the contrary, Respondent had placed a password protection program on her computer as early as June 1999 such that Kathy Clarke and the outside computer technicians could not access Respondent's computer. At some point in the middle of November 2001, Mr. Mendola returned Respondent's computer to her desk. Mr. Mendola did not tell Respondent what he had discovered on her computer. Respondent was not aware that Mr. Mendola had installed a real-time monitor on the computer. During the time that Respondent's computer was being monitored, Petitioner's staff made daily reports regarding Respondent's internet usage. They found that her internet activity involved sites that were unrelated to work. A week or so later, Mr. Mendola informed Respondent that he was going to check her computer again. He asked her not to shut it off and to make sure that she disabled the password protection. Mr. Mendola's second check of Respondent's computer confirmed that Respondent was using her computer to access the internet for purposes unrelated to her work. For example, there were many files related to furniture shopping. Mr. Mendola also discovered that the hard drive had been changed so that some files previously stored on the computer were no longer located there. Respondent's hard drive had been erased and started over. On or about December 17, 2001, Mr. Mendola and Mr. Noell had a meeting with Respondent. At that meeting, Respondent was shown printouts showing her internet usage. Respondent was then suspended until the January 8, 2002, school board meeting at which time it was recommended that Respondent be terminated. The real-time monitoring of Respondent's computer revealed that she used the internet extensively for personal reasons during working hours. Her internet usage at these times was more than the time available in a normal work day during two 15-minute breaks and a one-hour lunch break. It may be that Respondent's computer remained connected to the internet while she performed her primary or secondary duties off-line. In that case, the internet site might have automatically sent additional unsolicited messages and files that were stored in Respondent's hard drive. At times, Respondent might have used the internet beyond the time allotted for breaks and lunch when she completed her job assignments. However, Respondent admitted during the hearing that she used the internet as much as four hours a day, or perhaps as much as all day, during the time that she was "looking for furniture." Petitioner has always been satisfied with Respondent's job performance. With the exception of one performance evaluation in May 2001, Respondent has received the highest evaluation possible from her supervisors. In May 2001, Respondent received a "satisfactory" performance rating in teamwork skills and an "excellent" performance rating in all other areas. There is no evidence that Respondent's internet usage ever interfered with the performance of her primary duties relating to the transmission of vocational school program data to DOE. However, Respondent knew or should have known that Mr. Burke would have assigned her additional duties for the good of the department if he had known she was using so much of her time for personal activities after completing her assigned work. In fact, Mr. Burke testified that he would have told her to "knock it off" because such extensive internet usage was equivalent to reading a novel, watching television, or making personal telephone calls for several hours a day. Section 5.02 of the Collective Bargaining Agreement between Petitioner and the Marion Essential Support Personnel states that "[n]o bargaining unit member shall be disciplined without just cause." The agreement also contains a procedure know as "NEAT." This procedure, which is set forth in Section 5.03 of the Collective Bargaining Agreement, states as follows in pertinent part: Section 5.03 Except in emergency situations and situations which threaten the health and safety of students or other employees, the NEAT procedure will be used when disciplining members of the bargaining unit or when a deficiency is defined. The NEAT Procedure is defined as follows: N - Notice - when a deficiency is defined, the building administrator will provide the employee with written notification of the deficiency. E - Explanation and Expectation - the building administrator will include in the written notification the nature of the deficiency and the performance level expected. A - Assistance - the building administrator will include in the written notification where information can be obtained to help the employee improve and/or will provide other forms of assistance as appropriate. T - Time - the building administrator will define for the employee an appropriate time frame for improvement to occur before any disciplinary action is taken. Petitioner did not use the NEAT procedure before suspending Respondent's employment. Mr. Mendola admitted during the hearing that Respondent's internet usage did not involve an emergency situation or threaten the health and safety of students or other employees. He also admitted that under the Collective Bargaining Agreement, he did not have discretion to ignore the NEAT procedure when disciplining an employee. Mr. Mendola was aware of the NEAT procedure; he had used it with other employees. In this case he did not implement the procedure because of Respondent's denials that she had ever used the internet for personal reasons. According to Mr. Mendola, Respondent's lack of truthfulness precluded the benefit of any assistance he could have provided Respondent in correcting her behavior pursuant to the NEAT procedure. Article 4.00 of the Collective Bargaining Agreement sets forth a four-step grievance procedure, the last of which is binding arbitration. Section 4.10 of the Collective Bargaining Agreement states as follows in pertinent part: Section 4.10 For the purposes of this Article, the term "grievance" means any dispute between the Employer and one or more employees involving the interpretation or application of the current Collective Bargaining Agreement. The following matters shall not be the basis of any grievance filed and/or processed under the Grievance Procedures of this Agreement. * * * 3. Any complaint respecting termination of employment for which there is another remedial procedure or forum established by law or regulation having the force of law . . . .
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order reinstating Respondent's employment with back pay and benefits. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002. COPIES FURNISHED: William C. Haldin, Jr., Esquire William C. Haldin, Jr., P.A. 808 Southeast Fort King Street Ocala, Florida 34471 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Beverly Morris, Esquire Marion County School Board 808 Southeast Fort King Street Ocala, Florida 34471 James Warford, Superintendent Marion County School Board Post Office 670 Ocala, Florida 34478-0670
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2010.
Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The petition herein was filed by Petitioner with PERC on February 12, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated April 23, 1976. (Hearing Officer's Exhibit 2). The Sheriff of Sarasota County is an officer who holds his position by virtue of Article VIII, Section 1(d) of the Constitution of the State of Florida. The duties, responsibilities, and powers of the Sheriff's Department are delineated in Florida Statutes, Ch. 30. There are no special statutes which alter the provisions of Ch. 30 with respect to the Sheriff of Sarasota County. The Petitioner is an association which is seeking to represent a group of public employees concerning matters relating to their employment relationship with the Sheriff's Department. The Petitioner has been certified by PERC to serve as the bargaining representative for employees of the City of Sarasota, Florida. The Petitioner requested recognition as the bargaining agent of the unit of employees described in the petition. The Sheriff's Department did not respond to the request. (Stipulation, Transcript of Record, Page 6). 1/ There is no contractual bar for holding an election in this case. (Stipulation, TR 6). There is no collective bargaining history which would affect the issues in this case. (Stipulation TR, 6, 7). PERC has previously determined chat the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties stipulated that probationary personnel employed by the Sheriff's Department, and special deputies who are not regularly salaried employees of the Sheriff's Department should be excluded from any collective bargaining unit ultimately certified by PERC as appropriate in this case. The organizational structure of the Sheriff's Department is accurately depicted in an organizational chart which was received in evidence as Hearing Officer's Exhibit 5. The Sheriff is the chief executive officer of the Sheriff's Department. The Sheriff's Department is divided into six divisions. There are six sworn law enforcement personnel in the Research, Development, and Training Division. The Division is headed by a Lieutenant. A Corporal serves in this division for two days weekly in the Crime Prevention office. There are four officers in the division. The Sheriff's Staff is headed by the Sheriff. There are no sworn law enforcement personnel in this division. There are five sworn law enforcement personnel in the Detention Division. The Division is headed by a Captain. One sergeant and three patrolmen serve in the division. Two of the patrolmen serve as process servers. The Sergeant supervises the activities of the patrolmen and answers to the Captain. There are approximately 78 sworn law enforcement personnel in the Patrol Division. A Captain is in charge of the Division. There are five lieutenants, seven sergeants, and seven corporals. There are five sworn law enforcement personnel in the Administration Division. The Division is headed by a Captain and includes one lieutenant, one corporal, and two patrolmen. There are sixteen sworn officers in the Investigative Division. The Division is headed by a Captain, and includes two sergeants and three corporals. The Sheriff is ultimately responsible for hiring, firing, suspending, and transferring employees of the Sheriff's Department. Captains serve as heads of four of the Department's divisions. The Captain is responsible for the functioning of his division, and for the assignment and training of personnel who serve under him. Captains are the second highest ranking officers in the Department, and answer directly to the Sheriff. Captains normally work a standard day shift. Lieutenants are in charge of the shifts in the Patrol Division. The lieutenants answer to the Patrol Division Captain. The Lieutenant in the Administration Division is in charge of the Purchasing Office and answers to the Administration Division Captain. The Lieutenant in the Research, Development and Training Division is in charge of the Division and answers directly to the Sheriff. Lieutenants who work the day shift work primarily in the central office. In the four to midnight and midnight shifts the Lieutenant works primarily in a patrol car. Lieutenants are responsible for scheduling the men on their shifts, and for inspecting the men. Lieutenants will serve as acting captain during all times when no captain is on duty. The uniform worn by lieutenants and captains includes a white shirt with the appropriate bars worn on the shoulder. Personnel with the rank of sergeant or below wear uniforms which have light green shirts with patches on the arms. Each of the captains in the Department has use of a department motor vehicle. Some but not all lieutenants and sergeants have use of automobiles. The Sergeants are directly responsible for supervising deputies on patrol. Sergeants are generally responsible for supervising fewer employees than Lieutenants supervise, and Sergeants do not perform regular office functions. Corporals generally serve as backup units for the road deputies. The Sheriff seeks recommendations from each level of the chain of command for personnel action including hiring, firing, transfer, suspension, and other disciplinary action. An advisory committee, which consists of sergeants, corporals, and deputies, makes recommendations respecting hiring of new employees. The Sheriff also utilizes an advisory committee to make recommendations respecting promotions. The Sheriff typically follows the recommendations of Captains respecting personnel administration. Typically the Captains recommendations will be based upon the Lieutenant's recommendations which will be based upon the Sergeant's recommendations. Each division and each department within each division submits proposed budgets to the Administrative Captain. The Administrative Captain and the Sheriff together prepare a proposed budget for the Sheriff's Department. Final budget approval must come from the County Commission. The Sheriff has the various appeal routes set out in Florida Statutes Ch. 30 in the event the County Commission does not approve his proposed budget. Only the Sheriff can expend funds on behalf of the Sheriff's Department. Staff meetings are conducted by the Sheriff on an as-needed basis. Captains and Lieutenants regularly serve on the Sheriff's staff. No personnel below the rank of lieutenant regularly serve on the staff. Other officers are invited to participate in the staff meetings when matters affecting their area of responsibility are involved. The Sheriff receives input at the staff meeting respecting new policies. The Sheriff is ultimately responsible for making decisions respecting new policies, but he does seek the advice of the staff. In the event that the Sheriff's Department engages in the collective bargaining process, no final plans have been formulated respecting which personnel would serve on any negotiating team. The Sheriff intends to do his own negotiating and has not determined whether he will utilize the services of any assistants. ENTERED this 9 day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Respondent is the governing body of the Jackson County School District, and maintains its office in Marianna, Jackson County, Florida., The Respondent is engaged in the business of operating a school system. The Respondent is a public employer. The JCEA is an employee organization. On or about June 16, 1975, the Public Employees Relations Commission, in Case No. 8H-RC-754-1084, certified the JCEA as the exclusive bargaining representative of certified instructional personnel who are employed halftime or more by the Respondent in specific job categories. After lengthy contract negotiations, which began in August of 1975, a collective bargaining agreement was executed by the School Board and the JCEA on February 2, 1976. A copy of the agreement was received in evidence as General Counsel's Exhibit 1. On February 12, 1976& the JCEA filed an unfair labor practice charge against the School Board with the Public Employees Relations Commission. On February 20, 1976, the JCEA filed written grievances pursuant to Article III of the Collective Bargaining Agreement. The matters raised in the grievances are substantially the same as those raised in the unfair labor practice charge. In accordance with the provisions of the Collective Bargaining Agreement, implementation of the agreement was to be completed by February 16, 1976. During the period just prior to and just following February 16, the Respondent, through its agents, implemented numerous unilateral changes in policies. Prior to August, 1975, members of the collective bargaining unit at Marianna High School were not required to sign in at the beginning of the work day, or to sign out at the end of the work day. During August, 1976, new sign in and sign out procedures were implemented. The procedures applied only to members of the unit. On February 16, 1976, a time clock system was implemented at Marianna High. The system was implemented in accordance with "Memorandum #10", dated February 9, 1976. The memorandum was received in evidence as General Counsel's Exhibit 2. Members of the bargaining unit were required under the new policy to "clock in" on the time clock at the beginning of the work day, and to "clock out" at the completion of the work day. It was announced that failure to clock in and out would constitute grounds for dismissal. The principal at Marianna High School testified that the Collective Bargaining Agreement required more accurate time records, and that the time clock system was instituted in order that more accurate records could be kept. Article IV, Sections 4.2 and 4.3 of the Agreement were cited. Section 4.2 provides as follows: "The teacher's work day shall be seven (7) hours and fifty (50) minutes, during which each teacher shall be provided a duty-free lunch period on campus of not less than twenty-five (25) minutes. The principal of each school shall set the beginning and ending time of the work day. Teachers must have the prior approval of the principal or his designee before they leave school during working hours. Loss of time during the workday shall be covered by approved leave, loss of pay, or compensatory time." Section 4.3 provides as follows: "The principals may assign teachers extra duty which shall be restricted to supervising students on campus before and after school. The principal may also select from volunteers, teachers to supervise students at lunch. Compensatory time, equal to the extra duty time, shall be given teachers serving extra duty and lunch supervision, provided however, compensatory time shall not be given during the student day." Prior to the implementation of the Collective Bargaining Agreement, employees within the bargaining unit were not paid extra duty time. The principal at Marianna High School testified that the precise delineation of the work day, and the entitlement to extra duty pay necessitated the more accurate record keeping. This explanation is inadequate. In the first place, in order to be entitled to extra duty compensation, the principal would have to assign the extra duty. The extra duties could include supervising students on campus before and after school, and during lunch. These sorts of extra duty are not such as would permit great variances in time. It is difficult to perceive why more accurate time keeping procedures were required. Indeed, as to extra duty during the lunch period, the time clock system would be of no assistance whatever. If more accurate time keeping was necessary at Marianna High School, it would have been just as necessary prior to implementation of the Collective Bargaining Agreement. Non-instructional employees of Marianna High School have not formed a collective bargaining unit. Any of these employees are compensated on an hourly basis, and are entitled to more or less compensation depending upon the hours they work. Accurate time records are as necessary for this group of employees as for employees within the bargaining unit; however, the time clock system applied only to employees within the bargaining unit. The time clock system was not the only new policy implemented at Marianna High School to coincide with implementation of the Collective bargaining Agreement. Teachers had been permitted prior to the adoption of the contract, to leave school early for doctors appointments, or to serve civic functions, without the necessity of taking any leave time. Subsequent to the adoption of the contract, if a teacher left more than ten minutes early, he or she would be required to take a minimum of one hour leave time. On or about February 16, 1976, teachers were instructed to stand outside of their classroom from 7:45 A.M. until 8:00 A.M. to supervise students coming into their classroom. Although teachers had previously been required to supervise students coming into their classroom, they were not required to stand outside of their classroom. Prior to implementation of the Collective Bargaining Agreement teachers were permitted to use the teacher's lounge for a planning period. As of February 16, teachers were not permitted to use the lounge for their planning period. The principal at Marianna High School testified that this was necessary in order that he would know where the teachers were since the planning period was to be used for parent consultations in accordance with the Collective Bargaining Agreement. The testimony clearly revealed, however, that the planning period had been used for parent conferences prior to the adoption of the contract. Insofar as limiting the locations for the planning period was necessary, it was as necessary prior to adoption of the contract as subsequent to it. During the course of negotiations, the principal at Marianna High School had expressed a hostile attitude toward the collective bargaining process. None of the new policies set out above were discussed during the course of the negotiations. Each of the new policies was more restrictive than had been the case prior to collective bargaining. The timing of implementation of the policies to coincide with implementation of the agreement, the fact that the policies applied only to personnel within the bargaining unit, the fact that a hostile attitude toward collective bargaining had been expressed, and the lack of any other reasonable explanation for the policies lead inescapably to the conclusion that the new policies were implemented in order to dramatize to members of the collective bargaining unit that resort to the bargaining process would result in more restrictive supervision by the employer. The new policies were implemented for the purpose of discouraging membership in the JCEA, and to interfere with the employees' rights to engage in the collective bargaining process. Similar new and restrictive policies were implemented by the Respondent's agents at Malone High School, and at Golson Elementary School. The new policies at these schools were adopted to coincide with implementation of the Collective Bargaining Agreement, applied only to personnel within the unit, and were implemented in asetting of hostility toward the collective bargaining process. Like the new policies at Marianna High, the new policies at Malone and at Golson were adopted to discourage membership in JCEA, and to interfere with employees in the exercise of their rights to engage in the collective bargaining process. At Malone High. School teachers were no longer permitted to use the teacher's lounge for their planning period as they had been prior to implementation of the contract. Prior to implementation of the contract teachers were permitted to eat lunch in the cafeteria, in the teacher's lounge, or in their own classrooms. Subsequent to the agreement, they were permitted to eat lunch only in the cafeteria, or in the Home Economics classroom, which was not available during all lunch periods. Nothing in the contract in any way necessitated these new policies. One of the top priorities of JCEA in negotiating a collective bargaining agreement was a "duty free" lunch period. JCEA was successful in this respect. The agreement provides for a "duty free" lunch period. Subsequent to adoption of the agreement at a faculty meeting the principal at Malone strongly advised members of the unit to eat with their classes, and in this regard made statements which could only have been perceived as threats. He stated for example that it might be necessary to trade the best player to make a better team. At Golson Elementary School, a "sign-in, sign-out" system was initiated just prior to February 16, 1976. The principal told members of the bargaining unit that he had treated them as professionals", but that now there was a collective bargaining agreement. He required that they sign in at 7:45 A.M. and he frequently reminded the teachers over the intercom system during morning announcements that they should sign in. Prior to implementation of the contract, teachers at Golson Elementary were permitted to leave the school grounds as much as twenty minutes early in order to attend classes, civic functions, or doctors appointments, without the necessity for using leave time. After the contract it was necessary to use one hour leave time in order to leave ten minutes early. Prior to implementation of the contract teachers were permitted to eat lunch in the teacher's lounge or in their own classrooms. Subsequent to the contract they were no longer permitted to do that. Prior to certification of the JCEA as the exclusive bargaining agent of instructional employees of the School Board, the School Board utilized a "Calendar Committee" to assist it in promulgating a calendar for each school year. A representative would be chosen from each school, and the Committee would recommend a calendar for the school year. Among recommendations made by the Calendar Committee would be dates for holidays. During the course of negotiations leading to the Collective Bargaining Agreement, the School Board asserted that the calendar would prohibit negotiations respecting vacation days. The JCEA requested that a Calendar Committee not be utilized for the 1976-77 school year. The School Board nonetheless opted to utilize the Calendar Committee. At Marianna High School Betty Duffee, the chairman of the JCEA's negotiating team was nominated at a faculty meeting to serve on the Calendar Committee. The principal at Marianna High School discouraged the faculty from selecting Ms. Duffee because JCEA would be otherwise represented on the Committee. Use of the Calendar Committee was not designed to frustrate collective bargaining. A Calendar Committee had been utilized prior to certification of the JCEA by the Public Employees Relations Commission. Use of the Calendar Committee to make recommendations respecting mandatory subjects of collective bargaining, such as vacation days, would, however, at this juncture circumvent the exclusivity of JCEA's representation. The fact that the principal at Marianna High School discouraged selection of a JCEA representative to the Calendar Committee indicates an intention to utilize the Committee to make decisions respecting mandatory subjects of collective bargaining, such as vacation days, without the JCEA participating in negotiations. Mary Jo Morton is a teacher employed at Marianna High School. She is active in the JCEA, and this fact is known to the principal at Marianna High School. Shortly after implementation of the Collective Bargaining Agreement Ms. Morton was evaluated by her principal and received an unfavorable evaluation. It appears from the evidence that the evaluation was not conducted under the best circumstances. For example, Ms. Morton was criticized for not permitting sufficient classroom participation during one class while a test was being conducted. Insufficient evidence was offered, however, to establish that the unfavorable evaluations of Ms. Morton were motivated even in part by her participation in the JCEA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that an order be entered as follows: Finding the School Board of Jackson County guilty of committing unfair labor practices by implementing restrictive policy changes at Marianna High School, Malone High School, and Golson Elementary School in such a manner as to discourage membership in the Jackson County Education Association, and interfere with its employees in the exercise of their rights to engage in the collective bargaining process. Finding the School Board of Jackson County guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year. Requiring that the School Board of Jackson County cease and desist from continued enforcement of the policy changes, and from continued utilization of a calendar committee. Directing that the School Board of Jackson County conspicuously post a notice that it has committed unfair labor practices, that it has been directed to cease and desist from such activities, and that it will cease and desist from such activities. RECOMMENDED this 12th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Austin F. Reed, Esquire Public Employees Relations Commission - Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Richard Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Joseph A. Sheffield, Esquire Post Office Box 854 Marianna, Florida 32446 John F. Dickinson, Esquire COFFMAN & JONES 2065 Herschel Street Post Office Box 40089 Jacksonville, Florida 32203
