Findings Of Fact The petition herein was filed by the Petitioner with PERC on February 11, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated May 3, 1976. (Hearing Officer's Exhibit 2). The City of Boca Raton is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record */ , Page 6). The Petitioner is an employee organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6, 7). The Petitioner has requested recognition as the bargaining agent of employees set out in the petition, and the Public Employer has denied the request. (Stipulation, TR 7). There is no contractual bar to holding an election in this case, and there is no pertinent collective bargaining history which affects the issues in this case. (Stipulation, TR 7, 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer contends that the unit described in the petition is inappropriate, and that the Petitioner has made no appropriate showing of interest with respect to any appropriate collective bargaining unit. The Public Employer's Fire Department is divided into five divisions. The employees in the proposed collective bargaining unit all work under the Administrative Division, and are supervised by an assistant chief. The other divisions are the Training Division, Operations Division, Staff and Line Support Division, and Fire Prevention Division. The Public Employer operates four fire stations. Station No. One is the Department's headquarters. Fire fighters and emergency medical personnel are housed at headquarters as are all communications personnel, including the persons in the proposed collective bargaining unit. None of the persons in the proposed unit are stationed at the Public Employer's other fire stations. Dispatchers and Alarm Operators are supervised either by the Assistant Chief in charge of the Administrative Division, or by the company officer in- charge of the shift at the headquarters station. Dispatchers are not certified fire fighters, and they do not perform the duties of certified fire fighters. Fire fighters work what is called a twenty-four-hour-on, forty-eight-hour-off shift. Dispatchers work an eight-hour shift which revolves so that one or more dispatchers are continuously on duty. Dispatchers and fire fighters have a different pension plan, and different employee benefits. Fire fighters make a larger contribution to theirs pension plan than do dispatchers, and are covered by their plan from the first day of employment. Dispatchers are not covered until after the passage of six months. The City provides hazardous duty insurance for fire fighters, but not for dispatchers. Dispatchers have a six- months probationary period. Fire fighters have a one-year probationary period. Although dispatchers do not perform the work of fire fighters, fire fighters are trained to serve as dispatchers, and do frequently perform the dispatchers' functions. The dispatchers and fire fighters work closely together. There are occasional social functions attended by fire fighters and dispatchers which no other city employees attend. Dispatchers receive the same basic employment benefits that are received by clerical employees of the Public Employer. They have the same pension plan, vacation and sick leave policies, and they serve the same probationary period. Dispatchers and clerical employees receive similar salaries. The only promotions available to dispatchers within the City of Boca Raton would be to clerical positions with a higher pay grade. There are no promotions available within the Fire Department. Dispatchers do not perform typing, filing, and other general clerical duties. Their function is not, however, unique to the City. The Police Department also employs dispatchers, and police and fire dispatchers have the same job description. (Public Employer's Exhibit 7). The Public Employer is presently engaged in collective bargaining with three employee organizations representing three certified bargaining units. There is a unit of "blue collar" employees, a unit of sworn police officers, and a unit of certified fire fighters. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James C. Crossland, Esquire Muller & Mintz, P. A. Suite 600, One Hundred Biscayne Blvd. Miami, Florida 33132 Richard F. Krooss, President Fire Fighters of Boca Raton, No. 1560 Post Office Box 565 Boca Raton, Florida 33432 Curtis L. Mack, Chairman Public Employees Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32304 =================================================================
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
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
Findings Of Fact During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41 to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976. On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16). The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows: "The Faculty Council and the President of the College were in full consensus in affirming the following specifics relative to solicitations on the campus: College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified dining areas and during the scheduled lunch hour of any given employee. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, Mr. James Rhoades, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature and notices which are not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed." The guideline is signed by Dr. McCracken followed by the following note: "Although inadvertently overlooked in the discussions with the Faculty Council, it is, of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business." The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows: "Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings." Solicitation is defined in the memorandum in pertinent part as follows: "College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed. College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership." The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated. Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications. The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired. The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3. Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties. At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting. (PERC Exhibit 9). As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA. Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses. The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied. The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting. The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort. The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation. The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.) The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC. In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later. PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation: . . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College." This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process. PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum. PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed by the Respondent did not result in any subversion of the election process. The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate. PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative. PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ." Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election. All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process. As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization. Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations. In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation. In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list within the period set out in the agreement was not the fault of the Respondent. No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
Findings Of Fact The Respondent is the governing body of the Jackson County School District, and maintains its office in Marianna, Jackson County, Florida., The Respondent is engaged in the business of operating a school system. The Respondent is a public employer. The JCEA is an employee organization. On or about June 16, 1975, the Public Employees Relations Commission, in Case No. 8H-RC-754-1084, certified the JCEA as the exclusive bargaining representative of certified instructional personnel who are employed halftime or more by the Respondent in specific job categories. After lengthy contract negotiations, which began in August of 1975, a collective bargaining agreement was executed by the School Board and the JCEA on February 2, 1976. A copy of the agreement was received in evidence as General Counsel's Exhibit 1. On February 12, 1976& the JCEA filed an unfair labor practice charge against the School Board with the Public Employees Relations Commission. On February 20, 1976, the JCEA filed written grievances pursuant to Article III of the Collective Bargaining Agreement. The matters raised in the grievances are substantially the same as those raised in the unfair labor practice charge. In accordance with the provisions of the Collective Bargaining Agreement, implementation of the agreement was to be completed by February 16, 1976. During the period just prior to and just following February 16, the Respondent, through its agents, implemented numerous unilateral changes in policies. Prior to August, 1975, members of the collective bargaining unit at Marianna High School were not required to sign in at the beginning of the work day, or to sign out at the end of the work day. During August, 1976, new sign in and sign out procedures were implemented. The procedures applied only to members of the unit. On February 16, 1976, a time clock system was implemented at Marianna High. The system was implemented in accordance with "Memorandum #10", dated February 9, 1976. The memorandum was received in evidence as General Counsel's Exhibit 2. Members of the bargaining unit were required under the new policy to "clock in" on the time clock at the beginning of the work day, and to "clock out" at the completion of the work day. It was announced that failure to clock in and out would constitute grounds for dismissal. The principal at Marianna High School testified that the Collective Bargaining Agreement required more accurate time records, and that the time clock system was instituted in order that more accurate records could be kept. Article IV, Sections 4.2 and 4.3 of the Agreement were cited. Section 4.2 provides as follows: "The teacher's work day shall be seven (7) hours and fifty (50) minutes, during which each teacher shall be provided a duty-free lunch period on campus of not less than twenty-five (25) minutes. The principal of each school shall set the beginning and ending time of the work day. Teachers must have the prior approval of the principal or his designee before they leave school during working hours. Loss of time during the workday shall be covered by approved leave, loss of pay, or compensatory time." Section 4.3 provides as follows: "The principals may assign teachers extra duty which shall be restricted to supervising students on campus before and after school. The principal may also select from volunteers, teachers to supervise students at lunch. Compensatory time, equal to the extra duty time, shall be given teachers serving extra duty and lunch supervision, provided however, compensatory time shall not be given during the student day." Prior to the implementation of the Collective Bargaining Agreement, employees within the bargaining unit were not paid extra duty time. The principal at Marianna High School testified that the precise delineation of the work day, and the entitlement to extra duty pay necessitated the more accurate record keeping. This explanation is inadequate. In the first place, in order to be entitled to extra duty compensation, the principal would have to assign the extra duty. The extra duties could include supervising students on campus before and after school, and during lunch. These sorts of extra duty are not such as would permit great variances in time. It is difficult to perceive why more accurate time keeping procedures were required. Indeed, as to extra duty during the lunch period, the time clock system would be of no assistance whatever. If more accurate time keeping was necessary at Marianna High School, it would have been just as necessary prior to implementation of the Collective Bargaining Agreement. Non-instructional employees of Marianna High School have not formed a collective bargaining unit. Any of these employees are compensated on an hourly basis, and are entitled to more or less compensation depending upon the hours they work. Accurate time records are as necessary for this group of employees as for employees within the bargaining unit; however, the time clock system applied only to employees within the bargaining unit. The time clock system was not the only new policy implemented at Marianna High School to coincide with implementation of the Collective bargaining Agreement. Teachers had been permitted prior to the adoption of the contract, to leave school early for doctors appointments, or to serve civic functions, without the necessity of taking any leave time. Subsequent to the adoption of the contract, if a teacher left more than ten minutes early, he or she would be required to take a minimum of one hour leave time. On or about February 16, 1976, teachers were instructed to stand outside of their classroom from 7:45 A.M. until 8:00 A.M. to supervise students coming into their classroom. Although teachers had previously been required to supervise students coming into their classroom, they were not required to stand outside of their classroom. Prior to implementation of the Collective Bargaining Agreement teachers were permitted to use the teacher's lounge for a planning period. As of February 16, teachers were not permitted to use the lounge for their planning period. The principal at Marianna High School testified that this was necessary in order that he would know where the teachers were since the planning period was to be used for parent consultations in accordance with the Collective Bargaining Agreement. The testimony clearly revealed, however, that the planning period had been used for parent conferences prior to the adoption of the contract. Insofar as limiting the locations for the planning period was necessary, it was as necessary prior to adoption of the contract as subsequent to it. During the course of negotiations, the principal at Marianna High School had expressed a hostile attitude toward the collective bargaining process. None of the new policies set out above were discussed during the course of the negotiations. Each of the new policies was more restrictive than had been the case prior to collective bargaining. The timing of implementation of the policies to coincide with implementation of the agreement, the fact that the policies applied only to personnel within the bargaining unit, the fact that a hostile attitude toward collective bargaining had been expressed, and the lack of any other reasonable explanation for the policies lead inescapably to the conclusion that the new policies were implemented in order to dramatize to members of the collective bargaining unit that resort to the bargaining process would result in more restrictive supervision by the employer. The new policies were implemented for the purpose of discouraging membership in the JCEA, and to interfere with the employees' rights to engage in the collective bargaining process. Similar new and restrictive policies were implemented by the Respondent's agents at Malone High School, and at Golson Elementary School. The new policies at these schools were adopted to coincide with implementation of the Collective Bargaining Agreement, applied only to personnel within the unit, and were implemented in asetting of hostility toward the collective bargaining process. Like the new policies at Marianna High, the new policies at Malone and at Golson were adopted to discourage membership in JCEA, and to interfere with employees in the exercise of their rights to engage in the collective bargaining process. At Malone High. School teachers were no longer permitted to use the teacher's lounge for their planning period as they had been prior to implementation of the contract. Prior to implementation of the contract teachers were permitted to eat lunch in the cafeteria, in the teacher's lounge, or in their own classrooms. Subsequent to the agreement, they were permitted to eat lunch only in the cafeteria, or in the Home Economics classroom, which was not available during all lunch periods. Nothing in the contract in any way necessitated these new policies. One of the top priorities of JCEA in negotiating a collective bargaining agreement was a "duty free" lunch period. JCEA was successful in this respect. The agreement provides for a "duty free" lunch period. Subsequent to adoption of the agreement at a faculty meeting the principal at Malone strongly advised members of the unit to eat with their classes, and in this regard made statements which could only have been perceived as threats. He stated for example that it might be necessary to trade the best player to make a better team. At Golson Elementary School, a "sign-in, sign-out" system was initiated just prior to February 16, 1976. The principal told members of the bargaining unit that he had treated them as professionals", but that now there was a collective bargaining agreement. He required that they sign in at 7:45 A.M. and he frequently reminded the teachers over the intercom system during morning announcements that they should sign in. Prior to implementation of the contract, teachers at Golson Elementary were permitted to leave the school grounds as much as twenty minutes early in order to attend classes, civic functions, or doctors appointments, without the necessity for using leave time. After the contract it was necessary to use one hour leave time in order to leave ten minutes early. Prior to implementation of the contract teachers were permitted to eat lunch in the teacher's lounge or in their own classrooms. Subsequent to the contract they were no longer permitted to do that. Prior to certification of the JCEA as the exclusive bargaining agent of instructional employees of the School Board, the School Board utilized a "Calendar Committee" to assist it in promulgating a calendar for each school year. A representative would be chosen from each school, and the Committee would recommend a calendar for the school year. Among recommendations made by the Calendar Committee would be dates for holidays. During the course of negotiations leading to the Collective Bargaining Agreement, the School Board asserted that the calendar would prohibit negotiations respecting vacation days. The JCEA requested that a Calendar Committee not be utilized for the 1976-77 school year. The School Board nonetheless opted to utilize the Calendar Committee. At Marianna High School Betty Duffee, the chairman of the JCEA's negotiating team was nominated at a faculty meeting to serve on the Calendar Committee. The principal at Marianna High School discouraged the faculty from selecting Ms. Duffee because JCEA would be otherwise represented on the Committee. Use of the Calendar Committee was not designed to frustrate collective bargaining. A Calendar Committee had been utilized prior to certification of the JCEA by the Public Employees Relations Commission. Use of the Calendar Committee to make recommendations respecting mandatory subjects of collective bargaining, such as vacation days, would, however, at this juncture circumvent the exclusivity of JCEA's representation. The fact that the principal at Marianna High School discouraged selection of a JCEA representative to the Calendar Committee indicates an intention to utilize the Committee to make decisions respecting mandatory subjects of collective bargaining, such as vacation days, without the JCEA participating in negotiations. Mary Jo Morton is a teacher employed at Marianna High School. She is active in the JCEA, and this fact is known to the principal at Marianna High School. Shortly after implementation of the Collective Bargaining Agreement Ms. Morton was evaluated by her principal and received an unfavorable evaluation. It appears from the evidence that the evaluation was not conducted under the best circumstances. For example, Ms. Morton was criticized for not permitting sufficient classroom participation during one class while a test was being conducted. Insufficient evidence was offered, however, to establish that the unfavorable evaluations of Ms. Morton were motivated even in part by her participation in the JCEA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that an order be entered as follows: Finding the School Board of Jackson County guilty of committing unfair labor practices by implementing restrictive policy changes at Marianna High School, Malone High School, and Golson Elementary School in such a manner as to discourage membership in the Jackson County Education Association, and interfere with its employees in the exercise of their rights to engage in the collective bargaining process. Finding the School Board of Jackson County guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year. Requiring that the School Board of Jackson County cease and desist from continued enforcement of the policy changes, and from continued utilization of a calendar committee. Directing that the School Board of Jackson County conspicuously post a notice that it has committed unfair labor practices, that it has been directed to cease and desist from such activities, and that it will cease and desist from such activities. RECOMMENDED this 12th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Austin F. Reed, Esquire Public Employees Relations Commission - Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Richard Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Joseph A. Sheffield, Esquire Post Office Box 854 Marianna, Florida 32446 John F. Dickinson, Esquire COFFMAN & JONES 2065 Herschel Street Post Office Box 40089 Jacksonville, Florida 32203
