The Issue The issues in the case are whether or not the Respondent (1) during the course of an organizing campaign by the Union engaged in a course of conduct amounting to unlawful surveillance and/or creation of the impression of surveillance (2) whether or not Respondent unlawfully refused to bargain in good faith with the Union and (3) whether or not Respondent unlawfully refused to execute dues checkoff authorizations signed by its employees. By the alleged acts referred above, the Respondent allegedly engaged in unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Florida Statutes 447. As stated, these issues arise on a complaint issued October 16, by the acting general counsel of the Public Employees Relations Commission (hereinafter referred to as PERC), as amended at the trial after PERC's investigation of-the charges filed by the Union on various dates. The Respondent denied the commission of any unfair labor practices. At close of the testimony all parties waived oral argument. A brief has been received by counsel for the general counsel and has been carefully considered by me in preparation of this hearing officer's report and recommended order which was signed and released by me on March 17, 1976, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and considerations of arguments of counsel, I make the following:
Findings Of Fact Respondent's operation and the status of the Union. The 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 Union is an employee organization within the meaning of Section 447.203(2) of the Public Employees Relations Act (hereinafter referred to as the Act). The Union was certified by the Commission on April 22, order no. 75E-6-31 and the parties commenced bargaining on or about April 23, 1975, and notice of negotiations was forwarded to the Commission's office on or about May 5, 1975. By way of background, the case was originally noticed for hearing to commence on October 29 and 30, 1975, in the Escambia County Courthouse. The Respondent, on October 29, applied for and obtained a temporary restraining order which had the effect of commanding the Public Employees Relations Commission to refrain from conducting or attempting to conduct the hearing based on the charges alleged in the subject complaint and notice of hearing. On the following day, the School Board filed a non-suit which had the effect of resolving the temporary restraining order. Prior thereto and subsequent to the non-suit, the Respondent filed numerous motions for continuance and dismissal based on alleged procedural violations. The basis of the procedural deficiencies were that (1) PERC failed to advise the Respondent of its investigation prior to issuing complaint and therefore the complaint was improperly issued. Additionally, the Respondent alleged that it has filed charges of a similar nature against the Union and that PERC has failed to expedite investigation of said charges which according to Respondent, amounts to violations of bad faith bargaining by the Union also in violation of Florida Statutes 447. Accordingly, Respondent asked that continuance be granted and that a period somewhere in the nature of 30 days be allowed to consider the charges alleged. Respondent also filed motions to dismiss alleging inter alia, that the charges filed by the Charging Party are false and groundless and that representatives of the Charging Party and PERC's agents have colluded to effectuate violations of its rules and enabling statutes as set forth in the complaint. Based thereon states the Respondent, it has been deprived of its opportunity for investigation and defense of the matters asserted in the administrative charges and the complaint and therefore the complaint should be dismissed. Aside from the fact that the hearing officer is without the authority to grant motions to dismiss, looking to the motion to dismiss and the motion for continuance, no evidence other than the bare claims were made to substantiate all of the allegations contained in both the motion to dismiss and the motion for continuance. Accordingly they are tentatively denied by the undersigned and the motion to dismiss is referred to PERC for final ruling. Respondent's counsel also made a motion for continuance on the final day of the hearing and as grounds therefor alleged that he had been recently retained. Aside from the fact that the testimony revealed that the law firm had been retained to represent Respondent months prior to the instant hearing, Dr. Moses, Respondent's chief negotiator under- took to represent Respondent at the hearing. Additionally, the motion was denied as being untimely filed. THE REFUSAL TO DEDUCT DUES ISSUE Guy Price, Special Education Teacher for approximately 4- 1/2 years, testified that he is a union member and that he signed a dues deduction authorization form in 1971. 2/ Price testified that the Respondent has refused to deduct dues since on or about July. He testified that the Respondent caused to be circulated in October, a notice which indicated it would only deduct dues pursuant to authorizations on a lump sum basis for the yearly dues which, according to the testimony, amounted to $110.00. He testified that inasmuch as he could not afford the lump sum deduction, he canceled his authorization go or about October 6. He testified that he was aware personally of approximately 10 other employees who canceled their dues deduction authorization based on the fact that according to his testimony, they were unable to afford a lump sum deduction. He testified that the Respondent permits piece meal deductions of other organizational and benefit drives whereas it refused to do so in this case. On cross-examination, he testified that during the months of March thru June, no deductions were made. On redirect examination, he reiterated his prior testimony that he canceled his dues deduction authorization based on the fact that he could not afford the lump sum payment as indicated by the Respondent's notice to employees. Carl Ledehman, an employee for approximately 18 months and a Union member indicated that he canceled his dues deduction authorization based on the fact that he too could not afford a lump sum deduction as testified to by Guy Price. He testified that the Respondent indicated sometime in early October that it would only deduct Union dues in a lump sum fashion and that based on this announcement, 3/ he then canceled his dues deduction. He testified that inasmuch as the Respondent indicated that it would only deduct dues pursuant to a lump sum method, he canceled his authorization and that he did so for no other purpose. He testified as did Mr. Price that to his knowledge, the Respondent deducts contributions for hospital, cancer and the united givers fund as well as other benevolent and humanitarian purposes. Albert M. Robuck, an employee for approximately 6 years, testified that he, signed a dues deduction authorization form yearly and that the employer refused, sometime in October, to deduct dues on a monthly basis. He testified that he received several memos citing in essence that Respondent would only deduct dues on a lump sum basis. Based on this statement, he canceled his dues deduction authorization on or about October 12, and that along with his cancellation, approximately three other teachers canceled their dues deduction authorization. He testified that he was aware that the employer is presently deducting health insurance, annuities and other deductions monthly. Jackie Barrineau, the Union's Chairperson and an employee for approximately three years as a teacher, testified that she has been a Union member throughout her employment with the Respondent. She testified that the Respondent submitted what she considered to be exorbitant proposals for the cost of processing the dues deductions and that the proposals ranged from $12,500.00 annually to its last offer which amounted to .05 per card per month for each employee utilizing the dues deduction procedure. On April 21, 1975, she testified that the Union agreed to pay $325.00 for dues deduction for the remainder of the school year, whereas the Employer on July 15, proposed the amount of $12,500.00 for dues deduction. She testified that the Employer amended its position and countered with the same figure it had originally proposed. Approximately two days later on July 17, the board reduced its cost for processing dues deductions and reduced the $12,500.00 figure to .50 per card per month for each employee utilizing dues deduction. In late July the parties declared an impasse and during the numerous proposals which were submitted during the impasse on or about September 4, the Respondent resubmitted the $12,000.00 figure as the cost for deducting dues. See for example Charging Party's Exhibit 7 received in evidence and is made a part hereof by reference. She testified that despite the adamant position taken by the Respondent on dues deduction, she did not cancel her dues authorization. On cross-examination she corroborated the fact that the parties tentatively agreed to a provision whereby the Respondent would deduct .05 per card for each member utilizing the dues deduction authorization procedure. The Employer advised that it had received legal advice regarding the legality of the notice given employees whereby it would only deduct dues in a lump sum and that a local attorney, William Davenport, advised that that procedure was permissible. She testified that she is charged with giving collective bargaining advice to all employees within the County School System. She testified as to a problem the Respondent advised that it had relative to incorrect signatures and improper amounts being recorded on dues authorization cards and that that was part of the stated motivation for the Employer cancelling the procedure of deducting dues on a monthly basis. She testified that as to the Respondent's release of its intention to deduct dues only on a lump sum basis, a substantial number of employees withdrew from the Union. The Respondent also claims that it refused to honor existing dues authorizations which were executed by its employees because numerous cards were either incorrectly executed or were undated. There is nothing in Section 447.303, F.S., which saddles Respondent with the responsibility of insuring that dues deduction authorizations are properly executed. Nor was there any credible testimony from any employee that dues deductions were being made without their express authorization. It thus appears that the Respondent's stated concern about the legality or propriety of the dues authorizations was nothing more than a pretext to effectuate its real desire of securing from employees mass cancellation of their dues authorizations and thus stifle the Union's ability to function. This becomes more apparent when consideration is given to the Respondent's attitude at the bargaining table relative to the amount that it proposed to the Union for the administrative costs for providing the dues deduction service. Respondent maintained the same basic "no give" position on this issue until the entry of the mediator into the negotiations. Although not specifically urged by Respondent as a defense to the refusal to deduct dues allegation, small mention was made of the fact that no contract was in existence between the parties when it (Respondent) ceased to deduct dues on a monthly basis as had been its practice during the remainder of the school year following the Union's certification as exclusive bargaining representative for Respondent's instructional personnel. Inasmuch as the statute which is pertinent to dues deduction (447.303, F.S.) at no point refers to the existence of a collective bargaining agreement as a prerequisite to dues deduction authorizations, the undersigned is constrained to conclude that the statute which is specific on its face, must be applied literally. Accordingly, even if Respondent had urged that as a defense for its actions stated above, the undersigned would recommend rejection of that ground as basis for its refusal to deduct dues pursuant to authorizations. 4/ THE SURVEILLANCE ISSUE Jack Bridges, who is the Employer's Director of Industrial Services and who is responsible for the media, news releases, etc., testified that he photographed pickets who picketed the Respondent's school administration building during the summer months of 1975. He testified that Charging Party's composite of approximately 17 pictures which the Respondent utilized in order to maintain a "historical" file. He testified that he was responsible for taking approximately 7 pictures and he recognized, after having been shown Mrs. Barrineau, Martha Smith and another teacher whom he described as being an active Union supporter. He testified that there was no blocking of ingress and egress into the school building and that the pickets picketed approximately 6 times. He testified that he had received advance notice from the news paper and TV advertisements that there would be a picket at the administration building. He testified that the photos were taken to the Director of Employee Relations, Dick Phillingem. 5/ He testified that the photos were taken with the school's camera and film. Bridges further testified that there were no blacks picketing during the time the photos were made and that to the best of his recollection there were only two pickets. On cross-examination he testified that he had received advance notice of racial picketing but that no photos were made nor was the division in which he headed asked to take pictures of such demonstration. On further recross, he testified that he was, contrary to his earlier testimony, asked to take pictures of racial matters. Thomas J. Le Master, the Respondent's Assistant Superintendent for approximately 5-1/2 years, testified that the pictures were taken to determine whether or not employees were breaking the law and to place such pictures in the labor files. He testified that Phillingem asked him if he had anyone to take pictures whereupon the answer was elicited that pictures were made such that there could be a record of labor relations. He testified that he was present at a school board meeting during mid September and that the pictures were discussed at such meeting and during a further conversation with Mr. Phillingem. He testified that he talked closely and worked closely with Phillingem on all matters relating to the operation of their division. When shown the pictures in Charging Parties Exhibit 11, he was able to identify the subjects in the pictures A,D,C,F and G. He testified that he presently serves on Respondent's bargaining team and has done so since January, 1975, when the pertinent divisions of Section 447, Florida Statutes, became operative. He testified that he had not witnessed a labor trial although he had seen Charging Party's Exhibit 2 which as stated was the notice to employees regarding dues deductions. The notice bears a date of October 2nd. On cross-examination, he also testified that the pictures were shown at a public board meetings and that few comments were made regarding the subjects contained on the pictures. He testified that the file which the pictures were part of, is used in collective bargaining negotiations between the Charging Party. He did not elaborate on this point. He testified that he obtained his advance notice for the picketing through either the news paper or the television. Dick Phillingem, Manager of Employee Relations for the past year, has been employed by the Respondent for approximately 24 years in various positions. He testified that he maintained records regarding employee relations and he referred to such correspondence a "blurb" sheets and Escambia Education Association fliers. He testified that he did not talk about his prior conversation regarding this hearing. He gave Le Master instructions to take the pictures. He testified that the instructions were to take pictures of bath the pickets and the legends contained thereon. Messr. Bridges called to inform him that the pictures were to be delivered to him via a courier and that he thereafter disbursed them at the Board meeting. He utilized the pictures to keep current his file which he uses to monitor Union activity. During the normal course of his work day he spends approximately 80 percent of his time visiting teachers, coordinators and checking records on disclosures at discussions of board meetings. When asked for the purpose for which he was collecting a "history" for his files, the witness was unspecific however, he did testify that no attempts were made to utilize the pictures for reprisals. Jackie Barrineau, who previously testified, was recalled and testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that there were approximately 25 pickets and that she confronted Jack Bridges and approximately 2 other photographers whose names she did not recall and that she approached Bridges and informed him that she did not like the idea of his taking photos of her. She testified that the Union obtained a Writ of Mandamus to compel the Respondent to disclose the budget and Dr. Moses' contract with the Respondent. The pickets expressed to her their fear of retaliation for engaging in such acts. There was no blockage of ingress or egress of the school's administration building where the picketing occurred. When shown the pictures, she was able to identify most of the subjects. She testified further that the picketing was at all times peaceful. On cross-examination she also stated that she is the Union's public relations official and reiterated her identification of Mr. Bridges as one of the photographers. 6/ Dr. Ruby Jackson Gainer, a counselor dean and an employee for approximately 20 or more years, testified that she engaged In the picketing and that she was also intimidated by a managerial employee taking pictures of her while she was picketing. She testified that despite this fear, she went along with the idea of picketing because she felt "committed to her task." She recalled an incident whereby she was discharged and her tenure removed due to her engagement in a walkout during school year 1968. She testified that the employer tried to discharge her for taking two days' sick leave and that this action was turned over to the professional practices committee. On or about August 28, she testified that she was demoted from administrative dean to counselor dean and that the difference being that as counselor dean, her work station is located in an isolated area removed from the other school facilities. William McArthur, the Respondent's Personnel Director, testified that the picketing occurred in front of the school building which is where his office is located. He is a member of the board's negotiating team and he testified that he was unaware of any employees being intimidated based on their engaging in picketing. He corroborated the earlier testimony that the pickets did not block any ingress or egress to the school's administrative building. He is the custodian of the instructional personnel records and to his knowledge, there was no data placed in the personnel files regarding the picketing. He also testified that the Respondent does not maintain any separate personnel file for pickets. He testified on cross-examination, that he viewed the picture in Mr. Odom's office which were lying on his desk uncovered. He was unable to witness pickets from the school's building as was previously testified to by other witnesses. In the private sector, the NLRB has consistently held that direct surveillance by company supervisory employees or executives is intimidating and coercive. However, the mere presence of a supervisor or agent of a Respondent is insufficient to prove surveillance where such presence is not out of the ordinary. In this case, evidence reveals that the occurrence of the picketing was a matter of common knowledge throughout the county. The picket was so well known that there was extensive media coverage. The evidence reveals further that the photos were passed around at a public School Board meeting and that since that time no reprisals have been practiced upon the subjects appearing in the photographs. There was no evidence that employees' job activities were more closely scrutinized than before the picture taking episode occurred. Jackie Barrineau, a chief spokesman for the Union testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that approximately 25 pickets gathered in front of the school's administration building and that Jack Bridges and two other photographers took pictures of the pickets. She as well as other witnesses testified that they feared reprisals would be taken against them for engaging in the picketing and that they were unable to discern any useful purpose as to why the pictures were being taken by Jack Bridges. The evidence also reveals that the Respondent's agents testified that the purpose for which the photos were made was to maintain "history" for their files. Further testimony on this point, however, reveals that the photos were openly discussed at a public meeting and that no attempts were made by the Respondent and/or its agents to utilize those photos for retaliation or for any other purpose unlawful under Chapter 447, Florida Statutes. The record was barren of any evidence that the Respondent attempted to use the pictures from the pickets to substantiate retaliatory motives. While one witness testified that she was demoted because she participated in a strike several years ago, such testimony standing alone is insufficient to base a finding that the Respondent during the picketing in 1975 utilized or planned to utilize the photos for some unlawful purpose. Furthermore, there is no evidence to show that the Respondent treated picketing employees any differently than it did any other employees who engaged in the strike following the time that the photos were taken. This tends to show the exact opposite of a surveillance situation or the creation of the impression of surveillance as alleged. It is true that there was scant evidence that the Respondent utilized the materials in a file relative to labor relations matters, no ulterior or unlawful motive was attached or shown by the evidence. While one might infer or surmise that the photos would be utilized for discriminatory purposes, there was no proof of that and mere suspicion is no substitute for proof. For these reasons, the undersigned hereby recommends that the surveillance issue be dismissed for lack of proof. THE REFUSAL TO BARGAIN ISSUE Fred Haushalter, the Charging Party's Executive Director for approximately 8 years and a consultant, testified that he requested access to budget information from the comptroller and for a copy of the contract given to the Respondent's labor negotiator, Ed Moses. He testified that the request was made on or about 5 different times during the month of July, 1975. He said when Respondent refused to honor his request for budget papers at the school board meeting, the mandamus suit was filed to compel disclosure whereupon the court ordered the Respondent to turn over those documents and, ill addition, the Union was awarded attorney's fees and cost for bringing the action. He testified that the school board plead that it was unable to pay any additional salaries since revenues were right and further, that there would be no economic improvements contained in the collective bargaining agreement that the parties were negotiating. He testified that all bargaining team members were notified that there would be no economic improvements forthcoming from the Respondent. On cross-examination, he testified that he requested the school board's budget work papers and a tentative budget. He testified that bargaining commenced in late July, 1975. Specifically, he testified that he asked the comptroller, Messr. Olden, for a copy of the tentative budget. Beginning in April, 1975, the Union formally began to formulate proposals and the procedure utilized was that of past practice when the employee organization had utilized in negotiating prior contracts. By letter dated September 8, Robert C. Mott, Deputy Superintendent, stated that he was supplying, (1) a copy of the tentative 75-76 budget; (2) a copy of Dr. Moses' contract; and (3) a copy of the administrative salary schedule. He testified that of the data which was requested by the union, some could not he supplied immediately as some of it needed to be assembled. As to the other request, Mott advised that "since it related so directly to the collective bargaining scene," he would need the "legal advice" from Dr. Moses concerning that data. He concluded by stating that he would submit the requested data when he was able to either assemble it or when Dr. Moses gave him the proper advice. 7/ He testified that Moses was Respondent's chief spokesman as of May 20, and that there were approximately 13 sessions. He phoned Dr. Moses on June 12, 13, 16, 18, 19, 20, 23 and 24 and he (Moses) failed to respond to his phone calls. He had previously been advised by Dr. Moses on June 4 that a negotiating session could be arranged on June 9. He testified that when his phone calls to Dr. Moses were unanswered, he started calling the school board's secretary; Mr. Phillinger and a Mr. Davis, who according to his testimony is Dr. Moses' assistant. Davis took the message and informed him that he would give it to Dr. Moses immediately. When he spoke to Mr. Phillinger, he indicated that he would try to contact Dr. Moses as soon as possible. After approximately 10 or more phone calls, Moses returned his call on June 24, a Tuesday, and informed him that he was told that no one would be in the office until around 1:00 p.m. on that day, i.e., June 24. He testified that Phillinger, Director of Employee Relations, stated that he would contact Dr. Moses since he did not have the authority to arrange dates for collective bargaining negotiation sessions. The following day a Messr. Leper was called and he informed him of the difficulty that he had encountered in trying to contact Dr. Moses. He testified that during a two-week period he made approximately 22 phone calls to both officers of Educational Services Bureau, Inc., a consulting firm in which Dr. Moses is employed and serves as its Executive Vice President. He testified that when he finally made contact with Dr. Moses, they arranged a tentative date of July 1 to commence negotiations and that he requested dates of June 25 or 26 and to that request, Moses indicated July 1 would be the earliest date. He testified that at the July 1 session, Moses brought with him no proposals, but merely read a statement that the union's proposals were hastily prepared and irresponsible. He testified that the negotiating team which consisted of approximately 6 members began preparing the original proposal in October of 1974 and that special preparation lasted through April 1975 when formal proposals were submitted. He testified that Phillingem advised that the employer would only discuss the preamble and the following three articles, mainly (1) recognition; (2) association and teacher rights and (3) negotiation procedures. 8/ He testified that at that session, Respondent would only propose language regarding the recognition article. During that meeting the employer submitted its "guidelines for negotiation" and previously thereto on April 23, Respondent advised that it would have prepared at its next session, a counter proposal. The Union's proposal consisted of some 123 pages containing approximately 33 articles. The next meeting was held on May 19, and the parties agreed to payroll deduction for the remaining school year. He testified that Moses, at that meeting, advised that he wanted the Union's negotiating team to "localize the agreement." He testified that the next three sessions mainly consisted of questions by Moses, who informed the Union's bargaining team that "when we start bargaining, we will get. responses." 9/ On cross-examination, Moses asked the witness a number of questions regarding the Union's necessity of affiliation, the understanding as to why two whereases were included in Hue Union's preamble and other questions regarding language contained in provisions of its (the Union's) proposal. Moses inquired of him what his definition of good faith bargaining was and how the Union derived the one 1000th figure as the cost for dues deduction payments. He testified that Moses indicated to him that most of the Union's proposals were "non-bargainable items." The Respondent counter-proposed with a one page proposal. The Employer's initial counterproposal, which was submitted on July, in essence contained provisions that all offers were package offers which had to be either accepted or rejected as a package; that the contract term be two years and that the salary level be that level that was paid to instructional personnel the last school year. The proposal also contained provisions that all negotiable benefits be maintained at the funded level as contained ill the last contract and for existing benefits only; that final and binding arbitration be added to the present concept of grievance as is now in use in the Escambia County Schools.. The counterproposal ended with a provision which stated that all other bargainable items proposed by the union and identified as bargainable by the board were rejected. 10/ Mrs. Barrineau testified that the board's final proposal which was mailed to the teachers contained provisions whereby lunch hours were discretionary with the principal; a no strike provision; dues deduction and mileage allowance which was less beneficial than that contained in the predecessor agreement. The counterproposal also contained more restrictive provisions regarding maternity leave, personal leave and a two year contract term. There was a provision regarding association and teacher rights, three paid holidays, professional leave and procedures for reviewing personnel files. There was a provision controlling posting, voluntary transfers, class size, teacher's schedules, $60.00 bonus and that in her opinion, the salary proposal was regressive. She testified that the Respondent attempted to withdraw certain items which had been tentatively agreed to by the parties. The Respondent advised that this proposal which was submitted to the union on or about September 26, could only be accepted or rejected "in toto." On July 3, Mrs. Barrineau asked the Respondent for a counter and that its failure to do so would result in the Union's filing an unfair labor practice charge with PERC. Respondent's chief negotiator indicated that management's rights superseded employee rights except as specifically restricted by law. She testified that the only items which he considered negotiable were those items which were existing items or items which were covered by Respondent's policy. She testified that the principle area of discussion at that session dealt with grievance procedures and Dr. Moses informed the Union's negotiating team that their proposals were "so far out of line that they would not be either accepted or entertained." She testified that while the Union was willing to discuss item by item in their proposals and various counterproposals, the Employer indicated that all proposals had to be either totally accepted or rejected. The Union pressed for an informal grievance procedure and a more expeditious manner to resolve such but this was not forthcoming through negotiations. She expressed the opinion the "in toto" position urged by the Respondent was stifling the bargaining process and in her opinion, an attempt was being made to create an impasse. Regarding maternity and sabbatical leave, the discussion surrounding those areas were more regressive and restrictive than the existing policy. 11/ She testified that the Union agreed to accept the Respondent's dormant position regarding insurance in order to enable it to put insurance bids to various carriers. The Employer took a "no give" stance on the preamble and refused to allow employees a "choice of forums to resolve grievances." The next session which was held on July 9 was, according to Mrs. Barrineau, a discussion which largely centered around grievance procedure and sabbatical leave and that in the Unions opinion, the grievance procedure advanced by Respondent was "too detailed." For a detailed discussion on the grievance procedure, see Charging Party's Exhibit 31, which is a counter dealing with grievance procedure. During the next discussion, the witness testified that she expressed concern about the absence of insurance, sabbatical leave and teacher's retirement provisions, and that this was a subject to which the Employer refused to discuss.. The only items that the Employer would discuss were sabbatical leave and insurance. During the July 9 meeting, the Employer agreed to withdraw its insurance proposal. At the next session on July 14, the Union submitted its counterproposal no. 5, which was a regression from its earlier proposal regarding unpaid leave and grievance procedures and all other proposals were identical to its earlier submission and previously adopted position. 12/ Another session was held the following day, i.e., July 15, and the employer adopted the position of making responses only via written proposals and during that session, the Union changed its dues deduction proposal and incorporated a hold harmless clause for the Employer. Thereafter, the Union changed its position on the grievance procedure and advanced an informal one which in her opinion, provided for a more expedited procedure of resolving grievances. During that period from May 20 through mid-July, the parties had only agreed to three items. The Employer adopted a "no give" position regarding sabbatical leave. During a negotiating session on July 17, Dr. Moses appeared at the session approximately one and one-half hours late. At that meeting he submitted a counter which in essence stated that all issues which were "bargainable" had been discussed. She testified that the employer refused to submit counters on promotions, overtime, transfers, calendars, affect of class sizes and all other items. The Employer remained adamant regarding its position that dues deductions were subject to a $.50 deduction per card per employee and that she expressed the opinion that all other deductions were not subject to a like charge and, therefore, the administration charge for dues deduction was punitive in nature. She testified that at the July 17 meeting, the Respondent submitted its counterproposals 9 and 10 and that there were no changes regarding bargainable versus nonbargainable items. The proposals contained regressive language and that employees had to specifically state the reasons for taking personal leave. There were other changes in military and professional leave which deviated from and were more restrictive than existing policies. She testified that the dues deduction pursuant to the $.50 per card charge amounted to approximately $12,450.00 for the Union. The Employer submitted a proposal whereby the instructional personnel would work an 8-hour day which had the effect of increasing the normal work day and the lunch period was reduced to 20 minutes. The proposal contained no compensation allotments for overtime work and the Employer took the position that salary supplements were not negotiable. The Employer refused to change its attitude with regard to physical examinations, mileage allowances and the collective bargaining contracts would be printed at the Union's expense. There was no movement from the initial salary proposals submitted on April 23. During the period from July 1 through July 23, Respondent was unprepared approximately seven times and was late approximately nine times for bargaining sessions. On July 23, the Respondent submitted its counter no. 11 which changed the contract terms from one year to two years and the recognition clause also contained the provision deleting "the board and the association and added the State of Florida." On dues deduction, the employer agreed to recede from its earlier position adopted in its counter no. 10 by an amount totaling $50.00, i.e., the amount previously stated from $12,450.00 to $12,400.00. The proposal also contained a provision that Respondent reserved the right to establish those deductions which it considered to be voluntary deductions and that said right also included the "establishment of a reasonable set deduction, if in the opinion of the board such cost is necessary." All other items were consistent with those contained in its earlier counterproposal. 13/ On July 23 the Union declared impasse which was 60 days prior to the Respondent's budget submission date. At the time of the impasse, the parties had not reached agreement on: the insurance proposal, grievance procedures, sick leave, illness in line of duty, personal leave, sabbatical leave, general leave of absence, military leave, professional leave, visitation rights, dues deduction, preamble, maternity leave, as well as others. 14/ The parties scheduled their first mediation session on August 13, and it was scheduled to begin at 4:30 p.m. At that session, the Respondent's team was late by approximately two hours. The testimony is that the dues deduction costs submitted to the mediator was for a lump sum payable by the Union of $12,400.00. At that session, the Employer took the position that the subject of discharges was a nonnegotiable item. At the next meeting, on or about August 26, the Respondent's chief negotiator was late approximately two hours. On November 10, the Union requested a further session and Moses wired a message that he would not be available until November 15. The witness remained at the negotiating meeting on November 15 for approximately one hour and no negotiating official of Respondent appeared. The Employer remained adamant on positions wherein there was disagreement only as to language but not in principle. The parties agreed to a marathon bargaining session beginning November 28, and the sessions continued through November 30, at which time an agreement was tentatively reached by the parties, subject to ratification by the bargaining unit members. 15/ The unit members voted against ratification of Charging Party's Exhibit 46 which is the agreement entered into by the negotiating team and the Respondent's team on that same date. Included therein, is a salary proposal which amounts to a reduction in the previous school year salary of approximately 3.6 percent, i.e., $8,320.00 per annum versus $8,266.00. The Respondent refused to accede to most proposals submitted by the Union based on its stated claim that most were already provided for by law and thus that there was no need to incorporate such in a collective bargaining agreement. A member of the Respondent's negotiating team allegedly made the statement that "the teachers had nothing, that the school board had everything, that the school board could do what it desired regarding salaries. Additionally, it considered as nonnegotiable such matters as: dismissal, layoffs, evaluation, tenure, discipline for annual contract teachers and the scheduling of planning periods." Floating teachers, assignment of summer school teachers, problems regarding absence without leave and class size were also nonbargainable. Respondant's negotiating team also took the position that the effects of such items were also nonnegotiable. The chief spokesperson, Mrs. Barrineau, testified that her duties consisted primarily of carrying out speaking engagements regarding collective bargaining rights, effectuating collective bargaining policy for the Escambia Education Association, the certified bargaining agent, to settle disagreements within the collective bargaining team, to formulate policy, to issue news releases, to make civic speeches, to attend EEA workshops and to formulate a collective bargaining budget. She testified that the proposals resulted from a joint effort of EEA's collective bargaining team. She became actively engaged in the formulation of proposals on or about March 1. She testified that she made approximately seven phone calls during the period June 12 through June 26, in an effort to schedule a session with Respondent. At the August 14 meeting, the Respondent presented the impasse proposals to the FMCS mediator. As of September 25, the parties reached the figure of approximately $1300.00 for the cost of deducting dues pursuant to checkoff authorizations. Mr. Phillingem was called and testified that the file to which he earlier testified to contain Chapter 447 and the pertinent enabling statutes and the Department of Education Rules and Regulations in addition to proposals submitted by EEA, the certified bargaining agent, "blurb" sheets which are distributed and various other Union news letters. He testified that the school board's legal counsel is, to the best of his knowledge, associated with Muller & Mintz, a Miami law firm. Wallace S. Odom, the comptroller, testified that he is responsible for maintaining all financial data with regard to the school's budget. He is charged with maintaining accurate records and during fiscal year from October 1, thru September 30, there was a county wide reduction in teacher aides by approximately 110. He testified that there was no increase in salaries based on the status of incoming revenues. He testified that there has been an increase in the millage paid for property tax in and around Escambia County and that such increase is up to, according to his testimony, a full 8 mills. Fred Haushalter, EEA's Executive Director, testified that he monitors correspondence which comes through his office. He testified that the allowance for dues deductions during the months of June, July and August was achieved through negotiations and that the parties stipulated as to the amount of the cost for such deductions. He testified that the stipulation was reached on or about May 20, 1975. Thereafter during the remaining months of the school year, the parties entered into a stipulation whereby the cost of administration and dues deduction were set at a cost somewhere in the nature of $325.00 for the remaining three months. While the basic issues here can be simply stated, they are not susceptible of a short and simple answer: Did the Respondent negotiate with the Union in bad faith and with the intent of avoiding reaching agreement or conditioning agreement with the Union's acceptance of terms and conditions which the Respondent knew or should have known are unacceptable to any self respecting Union? The governing principles need not be set forth in exhaustive detail. Section 447, F.S., (the Act) defines collective bargaining and imposes upon the parties the duty to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment or the negotiation of and agreement, or any question arising thereunder... but such obligation does not compel either party to agree to a proposal or require the making of a concession. " The Public Employees Relations Act which was largely patterned after the National Labor Relations Act, 29 USC 151 et seq, sets forth the yard stick which is contained in Section 8(d) of the National Labor Relations Act and provides that the measurement of "good faith" is not rigid but, necessarily is an elastic concept having meaning only in its application to the particular facts of a particular case. See for example N.L.R.B. v. American National Insurance Company, 343 U.S. 395, 410 (1952). The U.S. Court of Appeals for the second circuit stated in N.L.R.B. v. National Shoes, Inc., and National Syracuse Corporation, 208F 2d. 688, 691-692 (1953), the problem is essentially to determine from the record the intention of the state of mind of [the employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record. See also N.L.R.B. v. Reed and Prince Manufacturing Company, 205F. 2d.131, 134-135 (C.A. 1, 1953), cert. denied 346 U.S. 887 (1954). The National Labor Relations Board has repeatedly held that it is without authority to either directly or indirectly compel concessions or otherwise set in judgement upon substantive terms of a collective bargaining agreement. A necessary corollary to this principal is that just as the Act contains no authority to force an agreement when the parties have reached an impasse (N.L.R.B. v. The United Clay Mines Corporation, 219F. 2d 120, 126 (C.A. 6, 1955), so also refusal to bargain cannot he equated with refusal to recede from an announced position advanced and maintained in good faith. Division 1142, Amalgamated Association of Street Electric Railway and Motorcoach Employees of America, AFL-CIO (Continental Bus System v. N.L.R.B., 294F. 2d 264, 266 (C.A.D.C., 1961). Applying these principles to the facts here, it becomes apparent that based on the small movement and the repeated standoffs by Respondent, I am constrained to conclude that the Respondent here has failed to fulfill its obligation to bargain in good faith with the Union. Turning to the pertinent facts in this case, up to and including the point of "impasse", the Respondent refused to recede from its initial stand on inter alia, checkoff, seniority, grievance procedure, all types leave, assignment scheduling, shorter lunch periods, reduction in pay and longer work days. Based on this position, one would readily infer that the Respondent approached the table with a preconceived determination never to reach agreement on these issues and that it maintained this position during negotiations without doing anymore than listen to Union argument on those points. Thus, in effect it engaged in surface bargaining on those as well as other issues without any attempt to explore argument thereon with a sincere desire to reach agreement. The Respondent's chief negotiator approached the table with a cleverly concealed scheme of displaying a real and sincere attitude of negotiating which was carried on with sophistication and finesse and the mere making of concessions on some items was the very means by which he concealed a purposeful strategy to make bargaining futile or fail. Using this approach, the Respondent opened negotiations with an extremely high cost for the administration of dues deduction and then failed to recede from this position until the waining moments of the negotiating sessions and after the parties had gone through the lengthly process of calling in mediators which were costly to both parties. There was no meaningful change on its consideration of position on the mandatory subject of checkoff as provided in Section 447.303, Florida Statutes. Throughout the sessions, the Union brought out and repeated all its main arguments regarding checkoff, salary levels, scheduling assignments, grievance procedures, contract terms, health insurance coverage as well as other items which the record is replete with documentary evidence. The Respondent, according to the testimony, stood fast on various articles which it deemed to be nonbargainable throughout the negotiation and as the sessions progressed, its position hardened. These are mandatory bargaining subjects and the Respondent's failure to enter negotiations with an effort to reach agreement constitutes bad faith bargaining in violation of 447.501(c), Florida Statutes. One example of this unlawful conduct can be examined by consideration of the fact that during the previous school year, the Respondent agreed to deduct dues on a monthly basis and the cost of such deduction amounted to approximately $325.00 for a three month period whereas when it entered the negotiation table it started out with the "outrageous" figure of approximately $13,000.00 for the same service that it had earlier provided for a total cost of $1300.00 if projected over a one year period. The same can be said for the Respondent's adamant refusal throughout the negotiations to accede to minor language changes in the preamble and other matters which in its opinion, were matters already covered by other laws and therefore there was no need to incorporate such in a collective bargaining agreement. While not suggesting that the Act requires concession by either side during bargaining nor the surrender of convictions or alterations of philosophies provided such convictions or philosophies are not made operative in such manner as to foreclose bone fide consideration of bargainable issues, the repeated refusal to consider or counter when proposed with items which amounts to nothing more than language changes, such a position militates a finding that the employer approaches the bargaining table with the intent of reaching an agreement and/or to engage in good faith bargaining. While parties oft times approach the bargaining table and jockey for positions, there comes a time when there must be a sincere desire to reach agreement. Further support in this position can be found in the fact that the Union on numerous occasions made futile attempts to reach the Respondent's Chief negotiator. During one period during the negotiating sessions, the Union's chief spokesman testified that she made more than ten phone calls during a twelve day period and that at no time were her calls returned by the Respondent and/or its agents. This in the opinion of the undersigned evinces a practice on the part of the Respondent to engage in dilatory and evasive tactics designed to make the bargaining process a sham and fruitless process. For example, anti-discrimination clauses are customarily included in contracts whereas there are other specific laws which specifically provide for and cover such proscribed activity. The fact that a proposal is made to include such in an agreement does not detract from or otherwise modify from other existing laws covering the same procedure. Further support for the conclusion reached by the undersigned can he found in the fact that the Respondent's chief negotiator entered the negotiating sessions with the idea that all proposals submitted by the Respondent would be package proposals and that the Union could not accept part of a counter proposal put by the Respondent without completely accepting or rejecting the entire proposal. This is not to say that the parties cannot enter into negotiations and negotiate on an item by item basis but the adoption of an "in toto", or take it or leave it" policy is further indication of bad faith bargaining. This is of much significance here since Respondent refused to agree to insignificant or traditional items contained in collective agreements. See e.g., Big Three Industries, 201 N.L.R.B. No. 105. Another indicia of the negotiating process which is indicative of bad faith bargaining is the fact that after the Union had been certified for approximately 6 months, the Respondent without prior consultation with the Union, unilaterally indicated that dues deductions could only be effected on a lump sum basis which ultimately had the effect of forcing numerous employees to cancel their dues deduction authorizations. This statement is based on the credited testimony of several witnesses including Mrs. Barrineau and Mr. Price. Although the Respondent, during the course of the hearing, testified that the dues deductions were canceled or that attempts were made to get employees to execute new authorization forms, there is nothing in Florida Statutes which places such a burden on the Respondent. A careful reading of Section 447.303, Florida Statutes, indicate that such authorizations are revokable at the employee's will upon 30 days written notice to both the employer and employee organization. Based on the foregoing, I therefore conclude and find that the Respondent's negotiating team entered the table with no intent to fulfill their duty to bargain in good faith and that its actions in forcing employees to execute forms which call for the single deduction of Union dues was a deliberate attempt on its part to force mass withdrawals from the Union in an effort to undermine it.
Findings Of Fact The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent, Douglas Porter, should be terminated for his third absence without leave in violation of the Collective Bargaining Agreement between Petitioner, Seminole County School Board, and the non-instructional personnel of Seminole County.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter and the joint stipulation submitted April 24, 2007, the following Findings of Facts are made: Respondent, Douglas Porter, is, and has been, employed by the School Board of Seminole County since July 13, 1993. Paul Hagerty and William Vogel have been Superintendents of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the Collective Bargaining Agreement, and School Board policies. Respondent is an employee of Petitioner's Grounds Maintenance Department, 100 Division ("maintenance department"). He began his employment in that division at the entry level position of Grounds Laborer I and worked his way up to Grounds Laborer II, prior to becoming a mechanic crew leader. As a mechanic crew leader, Respondent supervised three employees on his crew and interacted with principals and assistant principals to determine the landscaping needs of various schools. Respondent held the position of mechanic crew leader for approximately two years. Respondent has been employed by Petitioner for more than three years and is a "regular" employee and subject to the Collective Bargaining Agreement, copies of which he receives annually. Article VII, Section 15, of the Collective Bargaining Agreement, provides, in pertinent part: Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense - Written reprimand and one day suspension without pay. 2nd Offense - Five day suspension without pay. 3rd Offense - Recommended for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file. Article VII, Section 15, has consistently been construed to apply to an employee's absence from his or her assigned duties for any portion of the day, as well as the entire day. An employee who is absent from his or her assigned work duties without the permission of the employee's supervisor is considered to be absent without leave. The Collective Bargaining Agreement requires that an employee call in before the start of the work day if he or she is going to be absent; historically, maintenance department employees are given a 15-minute grace period after the start of the work day to call in. Although not reduced to a written directive, this practice is well-known within the maintenance department. An employee in the maintenance department who calls in sick, is reported to the payroll clerk who checks the employee's timesheet; if the employee has time on the books, he or she is approved for pay for the sick time. If the employee does not have time on the books, he or she is charged with a sick day with no pay. An employee who fails to call in, or calls in late, is considered absent without leave if he or she does not physically report for work that day or for the portion of the day missed due to tardiness. If the employee reports for work, he or she is subject to discipline, but is paid for the hours worked. If the employee calls in during the 15-minute grace period and is late, he or she is not subject to discipline, but is paid only for the time worked. Respondent had used 13 days of annual leave, 16 days of sick and personal leave, and 27 days of unpaid leave in the 2000 school year. This prompted Respondent's supervisor to indicate that his attendance needed improvement in Respondent's annual evaluation. As reflected in each of Respondent's annual assessments during his employment, Respondent's absenteeism created a hardship on his department and his attendance needed improvement. Normally, an employee is not required to provide proof of illness. In instances where an employee has excessive sick days, validation of illness is required. Concern with Respondent's excessive sick days prompted his supervisor to require, by letter dated October 1, 2001, medical certification of future illness that required missing work. By October 1, 2001, for the 2001 school year, which began on July 1, 2001, Respondent had used six days of vacation, eight days of paid leave, and four and a-half days of leave without pay. This "abuse of sick leave" resulted in a letter of reprimand dated October 1, 2001, which was clearly intended to warn Respondent to improve his attendance and required validation of illness as referenced in the preceding paragraph. Respondent was absent on September 1, 2002. He did not provide a medical validation of the illness causing the absence and, as a result, the absence was treated as an absence without leave. On September 18, 2002, Respondent received a letter of reprimand and a one-day suspension without pay due to his failure to provide medical verification for this unpaid leave day. This invoked the first step of progressive discipline as contained in the Collective Bargaining Agreement. On March 20, 2005, Respondent called in during the late evening and left a message on his supervisor's voicemail stating that he would not be at work the following day. The message was vulgar and unacceptable. Respondent did not report to work on March 21, 2005, and did not produce medical verification for his absence. On March 28, 2005, his supervisor recommended that he be suspended from work without pay for this absence without leave, his second offense in the progressive discipline system. On April 7, 2005, Respondent received a letter from the Superintendent notifying him that he would be following the supervisor's disciplinary recommendation for Respondent's absence without leave. The Superintendent's letter clearly references Respondent's failure to give appropriate prior notice of absences "in accordance with practices established at each cost center," and warns that future failure to comply "with procedures established at the Facilities Center to properly report and receive approval for future absences" would result in discipline in accordance with the Collective Bargaining Agreement. On September 7, 2006, Respondent voluntarily entered South Seminole hospital, a psychiatric facility. He was discharged on or about September 25, 2006. Respondent's condition required that he again be hospitalized on October 31, 2006, for four days. Respondent was diagnosed as suffering from bipolar disorder. During his hospitalizations, Respondent was administered various medications to treat his condition. Following release from his second hospitalization, Respondent's prescriptions were changed due to adverse side effects he was experiencing. In addition to being diagnosed with bipolar disorder, Respondent also voluntarily sought treatment for substance abuse at the Grove Counseling Center through the outpatient drug/substance abuse program. Respondent returned to work in November 2006, but was still suffering from problems related to his medication. He was late on November 8, 2006, and absent on November 9, 2006. Respondent had a meeting with his supervisor on November 10, 2006; it was the supervisor's intention to recommend Respondent for termination for the tardiness of November 8, 2006, and absence of November 9, 2006. On November 10, 2006, Respondent advised his supervisor that he had been diagnosed with bipolar disorder in September 2006 and that he was having problems with his medication. As a result of this conversation, instead of being recommended for termination, Respondent was given time off to adjust his medications, and it was agreed that Respondent would return to work on January 2, 2007. On January 9, 2007, approximately a week after returning to work, Respondent called in at approximately 7:10 a.m., his work day begins at 6:30 a.m., to advise that he had overslept and would be late to work. Respondent arrived at work at 7:28 a.m., 58 minutes after the start of his work day. As a result of this tardiness, Respondent's supervisor recommended suspension and termination to the Superintendent for a third offense of being absent without leave.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Doug Porter, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S 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 31st day of August, 2007. COPIES FURNISHED: Jeanine Blomberg, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Bill Vogel, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Pamela Hubbell Cazares, Esquire Chamblee, Johnson & Haynes, P.A. 510 Vonderburg Drive, Suite 200 Brandon, Florida 33511
Findings Of Fact Jurisdiction The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The complaint alleges, the parties admit, and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. In addition, the complaint alleges, the Respondent admits, and I find that the Charging Party is now, and has been at all times material herein, a certified representative for the purposes of collective bargaining for all employees employed by the Duval County School Board in the following described unit: INCLUDED: Classroom teachers: nursery, kindergarten, elementary (primary 1-3), elementary (intermediate 4-6), elementary (1-6), junior high (7-9), senior high (10-12), driver education, exceptional (special education), remedial, resource (art, music, etc.), vocational-home econo- mics, vocational distributive, vocational agriculture, vocational trade and indus- trial, vocational technical, office educa- tion, industrial arts, manpower and diver- sified (DCT), guidance counselors, occupa- tional specialists, media specialists, specialists-other, instructional, TV instructor, other instructional (except administrative assistants). EXCLUDED: Associate superintendents, general directors, directors, supervisors, coordi- nators, specialists, community school "coordinators", principals and assistant principals, and administrative assistants. The Charging Party was certified as representative of the above named employees on March 24, 1975, following voluntary recognition by Respondent. The Charging Party and Respondent were parties to a collective bargaining agreement effective July 1, 1975, which expired June 30. On March 16, Duval Teachers United's President, James W. Geiger (DTU) called Respondent's superintendent, Herb A. Sang and requested that collective bargaining for a successor agreement begin as soon as possible. Geiger suggested that bargaining commence during the first week in April which was rejected by Sang. After two other suggestions by Geiger, the parties agreed to meet on April 22, and the session opened with the introduction of the respective bargaining team members and an introductory statement by Robert B. Bates, Chief Negotiator for DTU. At the outset, Bates initially alluded to the fact that a few days prior, superintendent Sang had publicly attacked him as a "outside agitator and hired gun and that the DTU was coming to the table to pick the pockets of the taxpayers." Bates advised the Respondent's team that despite the public attack, mutual trust was essential to the negotiation process and that both sides should refrain from making such attacks in the future. Thereafter negotiations began by discussion of the ground rules which had been presented by Respondent and had been used in the previous year's negotiations. The first ground rule proposal stated that each negotiating session would be scheduled at a mutually agreeable date, time and place which would be determined at the preceding session. Bates expressed reservations about daily scheduling in light of his commitment to negotiate an agreement in St. Louis, Missouri. After some discussion with DTU President Geiger, Bates agreed with the day to day scheduling rule as proposed by Respondent. Bates also advised Respondent's team that he would like to take a vacation sometime in July, if negotiations had not been completed by that time and that he would want to clear it with Respondent's team prior to scheduling any time during that month. Respondent voiced no objections to Bates' suggestions and indicated that hopefully an agreement would be consummated prior to June 30. Thereafter the parties agreed to meet on April 28, 29 and 30, for the purpose of clearing up ground rules and according to DTU, to proceed into negotiations on the union's proposals. The parties met, as agreed, on April 28 and after three hours of discussion, the language of ground rules which had not been agreed to on April 22, was finalized. Andrew J. Knight, Respondent's chief negotiator, announced that since the ground rules stated that the parties' final proposals were to be submitted by May 10, and since all of the union's package was not in, no bargaining on proposals already submitted would occur until May 10. In this regard, the record reflects that approximately 80 percent of the DTU proposals had been submitted on April 28. When Respondent refused to commence substantive bargaining, the DTU team left the meeting with Bates advising the Respondent's team that DTU would resume bargaining when management submitted its proposals. The remainder of the DTU's proposals were submitted on May 10. Respondent's team submitted five proposals to the DTU on May 11. The parties again met on May 12, at which time Respondent's chief negotiator advised Bates that the five proposals was its entire response to the DTU's package. When Bates complained about not receiving counter proposals as to all of its proposals, the Respondent's team advised DTU that it should not look forward to receiving responses to all proposals. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by Respondent. The parties agreed to meet the following day and they placed on the agenda proposals dealing with Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer. When the parties met on May 13, and DTU attempted to negotiate concerning Discipline and Discharge, Personal Rights, Academic Freedom, and Transfer, Knight stated that these subjects were "inherent rights of management" and therefore nonnegotiable. Respondent's counter proposals on the other agenda items were those extracted from the previous years contract. Bates tried to schedule future sessions and was told by Knight that such scheduling could not be done in view of the language of ground rule 1. (See joint exhibit 4). Bates attempted to secure a commitment from Respondent that it would meet on Saturday, May 15, since he had a plane ticket on Friday that he would cancel in order to negotiate on that Saturday. Knight responded that it would "probably be OK" but refused to categorically state that it would negotiate on the 15th because the strict interpretation of ground rules precluded such commitment a day in advance. The parties agreed to and met on May 14. On May 13, Bates attempted to place items the Respondent had declared nonnegotiable back on the agenda whereupon Respondent's negotiator insisted that agendas must be "mutually agreed to" and refused to put those items on the agenda. The following day, Bates again attempted to begin discussions of the DTU proposals that he wanted on the agenda and again Knight insisted that the DTU items were not on the agenda and therefore could not be negotiated. Near the close of the session and when it was too late for Bates to depart on his flight as scheduled, Respondent declined to meet on Saturday, May The next session was held on May 19 and at that time Bates insisted that the ground rules did not provide for a mutually agreed to agenda as Respondent insisted and he (Bates) thereupon demanded that the alleged nonnegotiable items be placed on the agenda for that date. Since this item did not appear on the agenda prepared by Respondent for the 19th, Respondent refused to negotiate and Knight responded that the Board counters would be given on each issue as it came up on a "mutually agreed to agenda". The DTU team left the meeting and Bates replied that the DTU would return when management's proposal package was forthcoming. On May 28, Knight and Geiger had a phone conversation in which the parties agreed to resume bargaining on June 3. Geiger questioned whether Knight and the remainder of the Board's team were serious about bargaining and Knight replied affirmatively and that they would move "immediately into their calendars". The parties met on June 3 at 5:00 P.M. at which time the Respondent presented the expired contract as its counter proposal package. No counter proposals were given on any item in the union package which was not contained in the expired agreement. Bates again attempted to negotiate the alleged nonnegotiable items with no success. Knight replied that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been achieved pursuant to the ground rules and no mutually agreed to agenda had been set up. Knight advised however that the Board's team was willing to sit with the DTU's team but not to bargain. The parties eventually agreed to meet on June 8. At the outset, Bates advised the Board's team that the DTU was unavailable for negotiations from June 19 to June 22 because of schedule conflicts but that the DTU was available for five days preceding June 19. No agreements were reached on June 8 except an agreement to meet on June 14. On June 8, Geiger asked the Respondent's team whether it intended to predetermine bargaining concerning the calendar by its adoption of the 76-77 school year calendar which had been put into effect. The Board's response was that the calendar could be modified at the bargaining table respecting any dates that affected students. Thereafter they met daily from June 14 - 19. During this period, one agreement was reached on June 16, when a "salesman" article was signed. Thereafter Respondent maintained its prior stand on issues of summer school assignment, student discipline, and a fair treatment clause stating either that the subject items were inherent management rights or that they were matters which were nonnegotiable in that they "infringed student rights". Respecting the DTU's attempt to produce dialogue on a DTU proposal on fair treatment, Respondent made the comment that the union only represented incompetent teachers, and that competent teachers had no problems concerning the meaning of "fair and equitable". Knight said that if the union was in charge of student discipline, "the firing squad would come into existence", and that he would "take it all the way to the supreme court before this would ever go into a collective bargaining agreement". Other items such as disruptive student policy, school nurse, and evaluations were labeled nonnegotiable by Respondent. During the June 18 session, Respondent's team advised the DTU's team that any agreement reached thru negotiations after the expiration of the current agreement would not be retroactive and that if the DTU did not meet on Saturday, June 19, the Board "just might have to file an unfair labor practice charge." The parties met again on June 19, and the entire discussion centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put them into a contract. Near the end of the June 19 meeting, Respondent's team indicated that they desired to meet on Sunday, June 20, which was Father's Day. Bates declined, citing his previous commitment in Tampa to which the Respondent had been informed and when the Board's team insisted that a meeting take place on the 20th or 21st notwithstanding previous DTU commitments, the parties engaged in a lengthy discussion about both teams' failure to meet as scheduled. According to Bates, he was told that the Board's team was available to meet on Wednesday, June 23, and when Bates advised that the DTU's team would be available, Respondent's team indicated its availability. The DTU team, believing that a meeting was setup for Wednesday, June 23, arrived for the session at 9:00 A.M. but the Respondent's team did not appear. The next meeting was held on June 24, the following day. Geiger states that he advised Knight that the DTU's team wanted to commence serious bargaining at the next session and on this, he was assured by Knight that serious negotiations would occur. Geiger received a memo from Knight stressing his version which in essence was that the June 24 meeting was solely to set a date, time and agenda, pursuant to the ground rules. (See GC Exhibit 4a). Knight, as evidenced by his memo, refused to bargain at the June 24 session, insisting that to do so would violate the ground rules since in his opinion, no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour, and officially reconvened after agreement pursuant to the ground rules. Geiger commented that such a move was "silly" and that he thought Respondent was "playing games". The next session took place on June 25 which centered almost exclusively around a budget presentation by school board member, Mssr. Clemmons. Respondent submitted its first counter proposals on salary on June 3, which was identical to the then existing current salary schedule. During his testimony, Kennedy admitted that that proposal was not submitted in earnest. Respondent's second salary proposal was submitted on July 1 which was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday i.e., June 26, and that they had expected it to be offered at the earlier sessions prior to July 1. At the July 2nd meeting, DTU requested from Respondent information regarding the employee benefits article it submitted to which Knight responded that "no cost estimates had been prepared and that DTU could work out the costs as easily as the Board could". Knight advised that the board was of the opinion that DTU did not feel serious about the Board's being able to afford the proposals and therefore no estimates were prepared. Estimates however were provided at the next meeting which, according to Geiger, were prepared by Messr. Simmons, of the Board's team. In submitting them, he advised that they were not detailed estimates. Also discussed at the July 2nd meeting was the issue of the sick leave bank. The Board team expressed no objection in principle to the foundation of a bank but expressed its opinion that it was illegal. Then advised that such a bank existed in Dade County, Knight testified that he still questioned its legality since Kennedy had made inquiries of the Dade County School Board and when he inquired as to the authority for such a bank, he was told that it was not expressly sanctioned by any statute, rule or regulation. On July 1, Respondent's team requested the assistance of a mediator and DTU responded that on July 2, it had not objection to the appointment of a mediator. DTU expressed its opinion that the appointment of a mediator at that time was premature but that they had no objection based on the Respondent's commitment that they were really "ready to get down to meaningful bargaining". Geiger conversed with Bates about the DTU's availability during the following week whereupon they agreed that they would have their team there and would be at the bargaining table. The DTU's team cancelled its vacation plans and agreed to be prepared to negotiate the next week. Geiger testified that negotiations were carried on during the week July 5 - 9 and that it was a fruitless exercise in futility". On July 9, after the DTU's team was unable to obtain counter proposals from Respondent, and when they refused to schedule the next meeting date or to agree to any time after the 26th of July, a period to which Respondent had agreed to in view of the DTU's advance statements that it would be gone for the three week period during July 2 thru July 26, the Union declared impasse. Mr. Kazin, the mediator, indicated that of the two following weeks he was not available for one of those weeks since he would be out of town and the DTU's team suggested that the remaining week be spent to resume bargaining for the teacher aide unit. It should be noted that the DTU was certified to represent the regular unit in addition to the teacher aide unit and that Respondent's team was used to negotiate on behalf of the school board for both units. Geiger testified without contradiction, that Superintendent Sang had released to the press) a copy of what he termed to be "nonnegotiable issues". When the DTU's team asked Respondent's team for such a list, they were advised that no such list existed initially and after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list which had been distributed to the press and to which Respondent indicated that it would refuse to bargain over. (See General Counsel's Exhibit 5, received in evidence and made a part hereof). No bargaining took place between the period July 9 thru August 2. Bargaining resumed on August 3, at which time the DTU demanded that Respondent place on the table the salary schedule which had been released to the press by Respondent on July 22. Respondent refused to present the schedule which had never been submitted at the table. The demand was renewed at bargaining sessions on August and 5 and it was finally submitted by Respondent on August 10. The schedule was unilaterally adopted by Respondent September 13. During the August 10 session, Bates questioned whether Kennedy and the remainder of the Respondent's team had the authority to negotiate issues reported to be nonnegotiable by Respondent. Kennedy admitted that while there was some overlap between management rights and working conditions, he refused to negotiate those areas. A special master hearing was held on August 20 and his report was received by the parties on September 1. (See General Counsel's Exhibit #6). On August 21, negotiations resumed under a court order following the issuance of an injunction which was petitioned for against the Respondent for allegedly engaging in bad faith bargaining and against the Union for allegedly participating in unlawful strike activity. On August 21, the parties reached an agreement on the language on a discipline and discharge article, however the Respondent indicated that it would not include such agreement in the collective bargaining agreement but rather would append it to the contract. Messr. Kennedy of the Respondent's team advised that a transfer proposal would be included in the contract which was the first time that such a proposal had been introduced since negotiations started in April, if the Union accepted Respondent's proposal on discipline and discharge. The Union rejected the package as unacceptable following Respondent's notice that the agreed language was not for inclusion in the collective bargaining agreement. During a circuit court hearing on the progress of the parties' negotiations on August 27, DTU offered to accept school board language on two issues, grade reporting and court or jury duty. No further negotiations were held after September 9. A final package offer was made to DTU which was essentially the same package offer of August 21 with the exception of the transfer/discipline and discharge proposal and with a retroactive effective date of July 1. When this package was offered on September 9, the Respondent was at the same time rejecting the special master's report in toto. As stated, in its answer, Respondent takes the position that it has not refused or failed to bargain collectively in good faith in that the items listed in the Acting General Counsel's complaint are items which are vested in Respondent by Chapter 230, Florida Statutes and Section 447.209, Florida Statutes and it is therefore precluded as a matter of law from negotiating said items. Section 447.209, F.S., gives public employers the right to unilaterally determine the purpose of its constituent agencies, to set standards, to exercise control, to take disciplinary action for cause and to relieve employees from duty due to lack of work or for other legitimate reasons. That statute goes on to read that employees aren't precluded from raising grievances where decisions have the practical consequence of violating terms and conditions of any collective bargaining agreement in force or any civil or career service regulation. It seems glaringly apparent therefore that the legislature foresaw instances wherein public employers and employee organizations would reach agreements on the very matters on which Respondent would urge that it has no obligation to include or bargain about. Collective bargaining as defined in the Public Employees Relations Act, Section 447.203(14) is: "the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employement, except that neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this part". The undersigned could find no Florida cases in which this issue had been decided, however there are numerous federal and state cases in other jurisdictions in which collective bargaining has been defined by judicial and other administrative bodies. Section 447.203(14), F.S., is strikingly similar to Section 8(d) of the National Labor Relations Act, 29 U.S.C. 151, et-seq. Respondent does not dispute the fact that it approached the negotiation table with a fixed and preconceived determination on its part to never reach agreement on those issues listed in the complaint filed herein. It maintained this position in the negotiations without doing anymore than listen to Union arguments on those points and by so doing it engaged in surface bargaining on those as well as other issues, without any attempt to explore the arguments thereon with a sincere desire to reach agreement on them. Court decisions too numerous to cite here have stated that "good faith bargaining takes more than mere surface bargaining or "shadow-boxing to a draw" or "giving the union a run around while purporting to be meeting with the union for the purpose of collective bargaining". On the subjects listed in the complaint, it is patent that by the third negotiating session, the Union had brought out and repeated all its main arguments for those subjects. Throughout the sessions, Respondent stood fast on its position that it would never include those subjects into a collective bargaining agreement. Its position on this had hardened even at the outset of the negotiations when it maintained that it had customarily appended said subjects to the collective bargaining agreement such that they would not be subjected to the grievance arbitration provision of the collective bargaining agreement and further that those items were among those rights exclusively vested to it by Section 447.209, F.S. Respondent maintains that it released information to the public through its agent which was an exercise of its right of free speech pursuant to Section 447.501(3), Florida Statutes, and/or that it was its legal duty imposed on it by Chapter 119, Florida Statutes. The Respondent apparently overlooked the fact that the employee organization (the Charging Party here) is certified to be the exclusive bargaining agent for purposes of bargaining. This means of course, that as agent for unit employees, it is charged with the responsibility of negotiating with the public employer in an attempt to reach agreement on all matters affecting wages, hours and other terms and conditions of employment. This also means that Respondent is obliged to do more than merely listen to the various proposals advanced without any attempt or effort to reach an agreement on basic terms which are customarily included within collective bargaining agreements. As previously stated, the Act does not require concessions by either side during bargaining nor the surrender of convictions of alterations of philosophies, provided such convictions or philosophies are not made operative in such manner as to foreclose bona fide consideration of bargainable issues. Duro Fittings Company, 121 N.L.R.B. 377, 383. Throughout these sessions, DTU was repeatedly rebuffed on minor problems such as establishing an agenda and obtaining agreement for future negotiating sessions. Respondent maintained its stand on all the items alleged by it as "nonnegotiable" which left the Union in a situation wherein, in order to make any movement, it was forced to submit counters to its own proposals without any movement on management's part. The failure on management's part to submit any counter proposals on those items lends support for an inference that they were not bargaining in good faith. Further support for this inference lies in the fact that Respondent publicly denounced the DTU's chief negotiator as a hired gun and as a person who wanted to pick the pocket of the taxpayers and by publicly releasing to the press items which the employees' exclusive bargaining representative had been repeatedly pressing for at the negotiating table. I recognize it is not usually the obligation of the employer to make suggestions when it takes a position and maintains it in good faith, and that refusal by an employer to aid a Union by acceding is not sufficient, standing alone, to permit an imputation of an intent to frustrate final agreement. This is true only if the refusal is supported by reasons of substance which are advanced in good faith and to further legitimate business interests, while indicating that it still maintained an open mind on the issue. Hence, where the Union had displayed a disposition to be flexible and make concessions on the deadlock issues and Respondent itself indicated publicly to the unit employees that it had in mind a possible raise for them, it was incumbent upon Respondent, as evidence of its good faith, to broach the alternatives formally to the Union immediately after, if not before, said information was released to the press, especially when the Union questioned its stand, if it was at all sincere in its desire to resolve those issues in an effort to reach a final agreement. Also the thrust of the article released to the press which in essence indicated that the Union had lost a 6.25 percent raise because their Union forced negotiators to an impasse, while failing to advise the Union even after the details of such had been released to the press, strongly indicated that the Respondent was treating the Union, not as a certified bargaining agent of the workers, but as an interloper seeking to gain some advantage for itself, in any dealing between Respondent and its employees. This attitude ignored the fact that Respondent was in fact and in law dealing with the employees themselves, when it talked to the Union as their bargaining agent. This is strong indication of bad faith bargaining, for in effect Respondent was announcing to the employees, during and after bargaining, that while it would give them benefits as workers it would not consider a grant of certain benefits, because they were asking for them through their bargaining agent. See for example Kayser-Roth Hosiery Company, 176 N.L.R.B. 999, 1000, 1001. Considering the totality of its conduct vis-a-vis the employees and their chosen agent before, during and after the negotiations, I am constrained to conclude that Respondent's standing attitude of hostility toward the Union, including its blunt threats against the bargaining team's members, pervaded and controlled its attitude in bargaining and its adamant opposition to those subjects was the primary cause of the impasse reached. In this respect, Respondent failed to meet its obligation to bargain in good faith with the Union in violation of 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining appears in its dealing with the press when it released the fact that the union had been instrumental in losing a 6.25 percent raise because it (the Union) forced negotiations to an impasse while knowing that it had never offered such to the Union and when requested for such proposals, it initially denied that it existed and after repeated requests only grudgingly released such. The same is true with respect to the failure to submit to the DTU's negotiating team a list of items which Respondent labeled "nonnegotiable" by its taking the position initially that no such list existed and after repeated requests to find out if such a list existed, the Respondent belatedly released such to the DTU's team. The Respondent's contention that its purpose in issuing the letter to the press was not to make a proposal but to (a) avert a strike and (b) to allow the Union a face saving means of returning to the bargaining table is unpersuasive and is regarded by the undersigned as incredible in view of the entire course of conduct by the Respondent's team throughout the negotiating process. This was further clear indication of surface" or "sham" bargaining in bad faith in violation of the Act. 2/ The evidence indicates that on at least two occasions after the information had been released to the public, Respondent refused to grant those releases to the DTU's team at the negotiating table. I find that such conduct on the part of the Respondent is coercive in nature because, when stated in the terms released to the press without explanation, they tended to demonstrate to employees the futility of further negotiations on salaries, as well as an adamant and apparent unreasoning attitude on it, which is some evidence of bad faith bargaining. I find that Respondent thereby violated Chapter 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining is found in the fact that it refused to reduce and include in written form in its collective bargaining agreement, those items to which it reached agreement on. By engaging in such conduct, I find that the Respondent thereby engaged in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining lie in its insistence on agreeing to schedule sessions on a daily basis and by its refusal to discuss items which, although not on the agenda, were related and the only reason Respondent advanced for not discussing such items was based on that fact. At one session, when DTU attempted to discuss a non-agenda subject, management suggested that the session be adjourned for one hour and reconvene so that the additional non-agenda items could be placed on the agenda and discussed. In each case in which the Respondent is charged with having failed to satisfy its duty to bargain in good faith, the entire course of conduct at the bargaining table has to be judged and considered by the totality of the circumstances. The term good faith has been held to mean that parties must approach the bargaining table with an open mind and with the intent to reach agreement. See for example N.L.R.B. v. Herman Sausage Company, 275 F.2d 229 (CA5, 1960); N.L.R.B. v. Reed and Prince Manufacturing Company, 205 F.2d 131 (CAl, 1953). Turning to the outset of the negotiation process in this case, prior to the first session, Bates testified without contradiction that superintendent Sang publicly attacked him as Charging Party's national representative as a "hired gun" and a person who was seeking to "pick the pockets of the taxpayers". Concerning his memo of April 19, Kennedy testified that "this document reads like history written in the spring as to what occurred not". See General Counsel's Exhibit #7 received into evidence. As that exhibit reflects, Respondent seemed calculated and more concerned with establishing rules and creating other subterfuges by which it could refuse to bargain than it was with performing its obligation to bargain in good faith. For example, evidence reveals that bargaining did not commence until approximately five weeks after the DTU's initial request. The first session centered around clearing up a ground rules proposal which as the evidence reveals, were the previous years ground rules. It took more than two negotiating sessions to finalize ground rules. This pattern continued throughout the negotiating process and clearly evinces Respondent's strategy of putting form over substance. Management does not deny and in fact admits that it termed various subjects "nonnegotiable". However it urges that it would include such subjects as appendages to the collective bargaining agreement. By so doing, the enforceability of such appendages would indeed be questionable. Furthermore, Section 447.001, F.S., requires the parties to negotiate a grievance procedure which shall be final and binding on the parties. By appending traditional subjects of collective bargaining such as discipline and discharge to the collective bargaining agreement, the employer would obviate its obligation to submit any disciplinary action to the grievance machinery and the collective bargaining agreement and would make a nullity of the proviso to Section 447.209, F.S. Also, Section 447.309(5), F.S., provides in pertinent part that "any collective bargaining agreement ... shall contain all of the terms and conditions of employment of the employees in the bargaining unit The evidence clearly shows in this regard that Respondent, after having agreed on certain proposals, refused to put them in the collective bargaining agreement thereby obviating any obligation to grieve them by the grievance machinery. Without going through each of the subjects listed in the complaint, some discussion on some of the items is worthy of mention in this decision. The Respondent termed discipline and discharge, seniority, transfer, summer school assignment, student discipline and disruptive student policy nonnegotiable subjects. However it agreed to append such subjects to the collective bargaining agreement. It is ludicrous to even suggest that discipline, discharge, seniority and transfer are not matters which affect an employee's employment relationship. As the evidence indicates, Respondent has a rule which states that violations of its policies subject a teacher to disciplinary action including discharge. Thus, for example, if a teacher fails to discipline a student who is disruptive in a manner which, according to Respondent, violates its policy, said teacher is subject to disciplinary action which often may lead to discharge. Another subject, seniority, has been held by numerous jurisdictions to be a mandatory subject of bargaining in that it, among other things such as merit, determines which teachers are eligible for promotion to various positions which become vacant during the school term. This necessarily affect a teacher's employment conditions and is therefore a term and condition of employment within the meaning of Section 447.309, F.S. Additionally, numerous jurisdictions have held that the impact of a managerial decision on terms and conditions of employment is a mandatorily negotiable subject. See for example, West Irondequoit Teachers Association v. Helsby, 315 N.E. 2d 775(Ct of App., 1974). Based on the foregoing, and by offering only the prior contract language as its counter proposals on the vast majority of issues, by refusing to tie logically related issues together in negotiations, by unreasonably delaying discussion on money issues, by attempting to denigrate the DTU's representative in the press and by attempting to deal directly with the employees and thereby bypassing the employees designated exclusive bargaining representative, and by unreasonably delaying discussion on money issues, Respondent effectively refused to bargain throughout the entire course of negotiations. Based on the above conduct and in light of Respondent's continual insistence on appending agreed upon proposals to the collective bargaining agreement and thereby avoiding the enforceability thereof by arbitration, Respondent thereby violated Section 447.501(1)(a) and (c), F.S.
Recommendation Having found that the Respondent has refused to bargain collectively in good faith with the Union as found above, I shall therefore recommend that it take the following action, which is necessary to effectuate the policies of the Act: Upon request, bargain collectively in good faith with the above-named union as the exclusive bargaining representative of all employees in the appropriate unit described above and, if an understanding is reached, embody such understanding in a signed agreement and recognize and deal with said union as such exclusive bargaining agent. DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was terminated from his employment by the Respondent based on discrimination because of his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner is an African-American male. He was employed at times pertinent hereto until his termination, by the Respondent Mold-Ex, L.L.C. The Respondent is a manufacturing company located in Milton, Florida, which operates a manufacturing facility and operation on a multi-shift basis, engaged in the manufacturing of various plastic and rubber products, particularly automotive-related parts. The Petitioner began employment with the Respondent on September 8, 1989, as a press operator. He also worked as a machine operator for about four months and was promoted to Second Shift Supervisor in the injection department. This is an injection molding operation which molds plastic and rubber parts. The Petitioner was a Second Shift Supervisor in that department for eight and one- half years. The Petitioner reported to Jerry Decker, who was his supervisor. The Petitioner is an employee and the Respondent company is an employer within the meaning of Section 760.10, Florida Statutes. The Petitioner's duties included monitoring overall operation of the machinery, training, new employees, setting up machines and jobs, completing attendance reports and holding employee meetings. As many as twenty-three employees were supervised by him on the second shift. The Petitioner was the only black supervisor at Mold-Ex. The Petitioner was terminated from his employment on December 4, 1998. He was told by Mr. Decker, his supervisor, that he was being terminated because the company was "down-sizing" or reducing positions and the number of employees due to financial difficulties. The Petitioner elected to contest this by filing a Charge of Discrimination with the Commission, claiming that he was harmed because he was discharged because of his race. Beginning in early 1998, the corporate parent company which owned Mold-Ex, L.L.C., was experiencing significant financial difficulties. This resulted in part from the "reservoir seal project" which involved a contract for a certain part that the Respondent was to manufacture for the Delphi Division of General Motors Corporation. There were difficulties in manufacturing the reservoir seal successfully, it was difficult to manufacture and required extra labor. It was termed by the Respondent's president as a "real disaster" which caused serious financial drain on the company. The company had a great deal of difficulty in successfully manufacturing the part to the correct specifications and lost much revenue due to unfilled orders and/or improperly manufactured parts which had to be replaced. Additionally, and related to these difficulties, the parent company was having great difficulty meeting its debt service obligations. In fact, the parent company never actually recovered from the financial difficulties from 1998, such that ultimately the Respondent was sold to another corporation. These financial difficulties throughout 1998 resulted, by the fall of that year, in the parent corporation putting significant pressure on the Respondent's management in Milton to reduce costs substantially, including labor costs. The Respondent considered and implemented several ideas for cutting costs, including restructuring the supervision of the operation and otherwise seeking to reduce labor costs. In September of 1998, the Respondent employed an excess of people over those needed to operate efficiently. At that time the Respondent employed approximately three-hundred workers. Because there was an excess of employees and, therefore, payroll expense, a hiring freeze was instituted. This resulted in a steady reduction of employees through not filling positions that were voluntarily vacated by employees leaving the company, as reflected in the Respondent's Exhibit 10 in evidence. The overall operating officer of the Milton facility, Vice President Ettelson, established in his testimony that in late November of 1998, the hiring freeze resulted in a reduced head count which saved the company substantial amounts of money. Thus, by the end of 1998, the company employed only approximately 280 persons instead of the 300 who were employed in September of 1998. By April of 1999, the employment roster was down to approximately two hundred and fifty persons. The Respondent additionally restructured supervision in order to save money and to operate more efficiently, in terms of simply more effective manufacture and filling of orders, as well as in the saving of personnel and related expenses. This restructuring involved combining supervisory positions and re- allocating duties, such that one plant superintendent was placed in charge of all of the operations on the second shift rather than having approximately three supervisors overseeing the individual business units operating on the second shift. The Petitioner was a Second Shift Supervisor whose position was eliminated in this restructuring. His duties were distributed among Mr. Don Brumley, who was a long-experienced employee who was re-hired out of retirement and who became the Second Shift Plant Superintendent; an employee in the injection and molding department, referred to as a "lead-employee" and also to certain individuals on the first shift. The restructuring resulted in a savings of approximately $40,000.00 as to salaries by eliminating three positions and selecting Mr. Brumley as the plant superintendent for the second shift. The re-structuring concentrated on the second shift because the other two shifts required the management personnel that were currently in place. On the first shift, various improvement projects and process development efforts required more intense, active supervision and supervisory personnel that were already in place. On the second shift, because no improvement projects were being conducted, the differences in activity between the second and first shift allowed the company to supervise that entire shift, as to all departments, by placing a strong effective plant superintendent in charge of that entire shift; eliminating three supervisory positions for a substantial savings in expenses. On the third shift, no re- structuring occurred because it was only a small operation of approximately twenty-five employees. The highest management personnel present for that shift was already a lead person in the mixing department and a supervisor in the injection molding department. Additionally, the company management recognized a strong need for a superintendent such as Mr. Brumley who had a record of implementing better disciplinary measures and who could ensure consistency and efficiency of operation in all of the operating departments on the second shift. The re-structuring effort resulted in a change in the reporting system or "chain of command" as well. Prior to re- structuring, three managers, one for each of the three business units (profile extrusion, molding, and reinforced hose), reported directly to Vice President Ettelson. Below these three managers were the supervisors in charge in each individual department within the three business units. For example, in the molding department where the Petitioner worked as Injection Molding Supervisor on the second shift, supervisors in injection molding on the first and third shifts as well as a first shift supervisor in the trim department, for a total of four supervisors, reported directly to molding manager Jerry Decker. Four supervisors reported to the Reinforced Hose Manager, Sidney Hood. Two supervisors reported to Profile Extrusion Manager Steve Wieczorek. Those three managers reported to Vice President Ettelson. After the re-structuring, supervisors remained in place on the first and third shifts, but on the second shift no supervisors remained who would be reporting to the department managers Decker, Hood and Wieczorek. Instead, Don Brumley, re- hired from retirement as the second shift plant superintendent, reported directly to Vice President Ettelson. Don Brumley was therefore in charge of all three business units during the second shift. His duties were much more substantial than the Petitioner's. He managed approximately 60 people while the Petitioner had managed approximately 20 to 23 people. Mr. Brumley had more administrative duties than did the Petitioner. He had hiring and firing authority that the Petitioner did not have and had the responsibility for adherence to company policy on the entire second shift rather than in only one department. Molding Manager, Jerry Decker, established that the re-structuring organization functioned effectively. It resulted in the elimination of the Petitioner's position on or about December 4, 1998. Additionally, two white males in supervisory roles were terminated by the Respondent because of the re-structuring. The Petitioner maintained that one of those terminated white individuals, Dan Lowery, had been out of work seven months with tuberculosis and was permanently disabled and, therefore, was terminated because he was not qualified to perform his job duties. However, the Human Resources coordinator, Nick Bores, the person with probably the most knowledge and insight concerning Mr. Lowery's employment capabilities, established in a credible fashion that Mr. Lowery had indeed been on leave for a few months due to his illness but returned to his employment duties with a full clearance from his physician to perform all of his duties. This testimony was corroborated by that of molding manager Jerry Decker and Vice President David Ettelson and is accepted. The Petitioner also contended in his testimony, in essence, that racially discriminatory motivation for his termination existed as shown by two incidents. One incident in 1997 involved an employee who had been disciplined in some way by the Petitioner, who then purportedly placed a "swastika" symbol on the Petitioner's car in the parking lot. The Petitioner asserts that the employee was not disciplined for that act, which he contends was indicative of racially discriminatory animus toward him by the Respondent's management. In fact, however, the Respondent did not discipline that employee because, upon questioning, he denied the conduct. The Respondent had no independent proof that he was guilty of the act. The Petitioner himself was not disciplined on an occasion when he was accused of sexual harassment by a female employee, because he denied it and the Respondent had no independent proof that he was guilty of the alleged conduct. Moreover, at about the same time as the "swastika incident" the Petitioner received a written commendation, signed by CEO Thomas Henry and Vice President Ettelson. These facts, considered together, tend to show lack of racial animus by the company management. The other incident described by the Petitioner related to management reaction to observing an employee under the Petitioner's charge failing to wear safety goggles. Mr. Ettelson purportedly told the Petitioner he would "kick his butt" if his employees again failed to wear protective goggles. This statement, if made, may be coarse or harsh, but was not shown to be other than an isolated occurrence. Moreover, it does not evince a racially discriminatory motive or attitude on the part of an employment-related decision-maker. The Petitioner maintained that his replacement, Don Brumley, was not qualified for the position created by the re- structuring and that his "lead man," Eddie Byers, was the only person in the department who could have performed the duties that the Petitioner had performed. This testimony, however, is rebutted by the testimony of witnesses Decker, Ettelson and Thomas Henry, the CEO of the company. Their testimony establishes that Mr. Brumley was well-qualified to assume management of the entire second shift operations as Plant Superintendent which included the scope of the Petitioner's job but included other substantial duties and responsibilities as well. In fact, with the exception of being retired for approximately one year, Mr. Brumley worked for the Respondent since 1963 and was the company's first employee after it was founded by Mr. Henry, his father and Mr. Henry's brother. Prior to his retirement, Mr. Brumley functioned as Compression Molding Manager, which was a position above the Petitioner's position level in the hierarchy of the company and at the same level as the Petitioner's former supervisor, Jerry Decker. In fact, Mr. Brumley, at one time, had a supervisory role over the Petitioner. The Petitioner's experience was limited to one department during his tenure with the company. Mr. Brumley, however, had worked in all departments in his 36 years with the Respondent. Mr. Brumley knew the operations of the company very well and bringing him back to the company to function as the Second Shift Plant Superintendent, with his skills and experience, saved the company substantial expenses by allowing it to avoid the necessity of retaining other employees. Additionally, Mr. Brumley had a reputation as a strict disciplinarian and Mr. Ettelson and the company management felt that stricter discipline was required for the operations on the second shift. When the Petitioner was terminated he was offered a severance package of four weeks' pay at the time of termination, but elected not to accept that offer. He was not offered a different employment position with the Respondent because no suitable options, in terms of his skills and qualifications and in relation to his salary level, were available with the company at that time. The Petitioner was earning $7.80 per hour, at the time of his termination and his annual salary, without overtime, was $16,234.00. During 1998, which was his best year in terms of income, he earned approximately $27,000.00 when overtime was added to his regular salary. The Petitioner earned a total of $13,175.72, in 1999 and earned $3,117.00 in unemployment compensation in 1999. He earned $7,513.51, when employed by Britt Landrum Temporaries, Inc., in 1999, and earned $1,608.01 when employed by Interim Services, Inc., in 1999. Additionally, he was employed by Transport Leasing Contract, Inc., in 1999 and earned $937.20 with that employer. Since approximately January 2000, the Petitioner has been working at the Waterfront Mission and earned $6.50 per hour, and then in September 2000, was raised to $7.00 per hour. The Petitioner concedes that with his qualifications and experience he could obtain employment at more than $7.00 per hour, which he makes at the Waterfront Mission. He chose to work at the Waterfront Mission because that employment is compatible with his calling to be a minister. He desires to have work which is compatible with his duties as a pastor for two churches in the area. He has earned about $375.00 per month as a pastor for his two churches since approximately May 2000. The Respondent presented evidence by witnesses Ettelson, Decker and Bores, the Human Resources coordinator, all of whom testified that the re-structuring plan, which included the elimination of the Petitioner's position, was for the purpose of serving the above-referenced financial business needs in relation to reducing costs, as the reasons which led to the Petitioner's termination. All testified that the primary goal was reducing costs in order to help the company to survive its business downturn, including the fact, established by Mr. Henry's testimony, that the United Auto Workers strike of the Delphi Division of General Motors began in the summer of 1998. This caused a loss of approximately one-million dollars per month. That is the reason that the re-structuring was effected which allowed them to bring in a more experienced man, Mr. Brumley, who was qualified to run the entire department at lower costs as the Plant Superintendent on the second shift, rendering the Petitioner's job and position unnecessary. Their testimony that these business reasons were the cause of the re- structuring and the Petitioner's termination is accepted, rather than the Petitioner's contention that the reasons for his termination involved his race.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of April, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501 Heather Fisher Lindsay, Esquire Gordon, Silberman, Wiggins & Childs, P.C. 1400 South Trust Tower Birmingham, Alabama 35203 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
