Findings Of Fact On October 18, 1971, the Respondent through ordinance Number 201 (Respondent's Exhibit 1) established a civil service system. The ordinance in pertinent part provided that the civil service board shall "adopt, enact and amend a code of rules and regulations for each department covering, among other things, duties, hours of work, discipline and control, rules and regulations for appointment, employment, suspension and discharge of employees based on merit, efficiency, character and industry." Evidence reveals that the Civil Service Board took no action to "adopt, enact or amend a code" pursuant to Section 5 of ordinance Number 201 and, until the unilateral acts here complained of, Respondent had little in the way of written rules and regulations. However, within the Police Department there were "general rules of conduct" which had been promulgated by the Police Chief. (See G C Exhibit 8). Thereafter, the City Attorney drafted an ordinance amending ordinance Number 201 (see Respondent's Exhibit 8). Police Department representatives attended a meeting with the Mayor on June 15, 1975, for the purpose of discussing the proposed amendment to ordinance Number 201. After the meeting, George Slinkman, then President of the FOP, learned of its purpose and was given a rough draft of the proposed amendment. He was informed that the departmental representative had voiced objections to the Mayor concerning the amendment and on July 31, 1975, the proposed amendment came before the City Council at a workshop meeting. Present at that meeting was the President of the FOP who informed the council that the FOP was in favor of implementation of the original ordinance Number 201 rather than the proposed amendment to which the FOP objected. President Slinkman indicated that if the Respondent was proceeding with the new amendment as proposed, the FOP would like to provide some input into the proposal. No further action on the proposed amendment was taken by the City Council at that meeting nor did it appear on subsequent council agendas. On December 15, 1975, PERC certified the Charging Party as the exclusive bargaining representative of Lauderhill Police Department Employees in the following unit. INCLUDED: Police Detectives, Officers and Sergeants. EXCLUDED: Police Lieutenants, Captains and the Chief. (See G.C. Ex. 7). Approximately two weeks later, the City Service Rules and Regulations, first part, through implementing resolution Number 511 (G.C. Ex.2) was presented to the City Council by the Mayor as an implementation of Civil Service Ordinance Number 201. The rules contained therein governed personnel recruitment and examinations for positions within the City. The Mayor informed the Council that there had been no employee input on such rules. While members of the Council received their copies approximately five days prior to the December 30th Council meeting, they were informed at the meeting that copies had not otherwise been distributed. City resolution no. 511 was passed by the City Council at the December 30, 1975, meeting and became effective immediately. Apart from the fact that witnesses George Slinkman, the former President of the FOP and President Elect Ralph Dean testified that Respondent failed to request input from the FOP on the rules as adopted, they also testified that no agent of the Fraternal Order of Police was made aware of the existence of the newly passed resolution until several days thereafter. (TR.401-402, 420-422). On or about April 22, 1976, Richard Witt, FOP State President, wrote to Mayor Cipolloni advising that he had been asked to represent the Charging Party in collective bargaining negotiations with the Respondent. Witt requested a meeting with the Mayor for the purpose of discussing negotiations. In response, the Mayor suggested the parties meet during the morning of April 28, in the Mayor's office. On Tuesday night, April 27, the Mayor introduced the City Service Rules and Regulations, second part, along with implementing resolution Number 571 to the City Council. This document contained numerous proposed changes in terms and conditions of bargaining unit employees including changes in appointments, lay-offs re-employment, evaluations, physical and mental exams, weight regulations, hours of work, vacations, holidays, sick leave, suspensions, demotions and grievance procedures. The Council was informed that employees had not provided input on the rules although the Mayor expressed his understanding gained from a recently attended labor relations seminar that Respondent needed a base for forthcoming negotiations with the Charging Party. When it was learned that the Civil Service Board had not been consulted with regard to the document, the resolution was tabled and Civil Service Board members were invited to be present the following evening when it would be brought up again, Richard Witt, the Mayor, and Police Chief Ramsdell met as scheduled on the morning of April 28, 1976. Witt requested that prior to collective bargaining the City furnish him with budget documents and other materials pertaining to police officers' health program, welfare and other employment working conditions. The Mayor responded, according to Witt, that it would take some time for him to assemble such but that the information would be forthcoming. That night, the City Council passed resolution no. 571, which adopted the City Service Rules and 7Regulations, save the sick leave policies which became effective January 1, 1977. (See G.C. Ex. 6). Ralph Dean, the President of the Charging Party testified that Respondent was not requesting input from the FOP on the rules and regulations, second part, nor had FOP representatives been furnished copies of the documents prior to their adoption. Additionally, he testified that the Charging Party was not notified of the pending adoption of the document and did not obtain a copy of such until after passage on April 28, 1976. Corroborative testimony on this point was given by Councilwoman Hatcher and employees Dean and Slinkman. The parties' first negotiation session was held on May 22, 1976 and at that time the Charging Party advised the Mayor and the City Attorney that in their opinion, some of their proposals were in violation of existing City ordinances, including the rules and regulations first and second parts. Two days thereafter, on May 24, 1976, the Charging Party filed with the Commission the instant unfair labor practice charges. The parties were again scheduled to meet on May 28, 1976. Upon receipt of the unfair labor charges, the City Council met with the Mayor in "executive session" and it was then decided that Respondent would "suspend bargaining" until the charges were disposed of. The Mayor arrived at the May 28th session and informed the Charging Party that Respondent would not return to the bargaining table until the pending charges had been resolved. A second charge was filed against the Respondent alleging essentially that the Respondent's suspension of bargaining constitutes a refusal to bargain in good faith within the meaning of Section 447.501(a)(c) of the Act. The evidence also reveals that on approximately March 30, 1976, the Respondent adopted a pay plan for its police department employees who are in the bargaining unit in which the Charging Party was certified to represent. The pay plan, as adopted, represented a reduction in the existing pay plan. In adopting this plan, Frank C. Brown Associates, a management consulting firm, was commissioned to conduct a study to devise a pay plan for all city employees. The evidence reveals that the wage and job classification plan prepared by Frank C. Brown and Associates was not compiled based on any joint efforts by the Charging Party who had been certified to exclusively represent the police unit employees. Specifically, Ralph Dean objected to the new pay plan and in fact, Mayor Cipolloni testified that he gave no direction to Frank C. Brown and Associates to seek any input from the Charging Party and/or its agents. Based on the Charging Party's objections to the pay plan as submitted by Frank C. Brown on February 9, 1976, one pay grade was added to each of the ranks. The plan was submitted to the City Council on March 30, 1976 and was made effective immediately for all employees. Representatives of the Charging Party were present at this meeting and objected to the implementation thereof to no avail. Thereafter, and during the second negotiation session on May 28, 1976, the Respondent suspended negotiations with the Charging Party based on the fact that the Charging Party had filed unfair labor practice charges with the Commission.
Conclusions The essence of the collective bargaining relationship between public employers and its employees in the State of Florida is outlined in Chapter 447.309(1), Florida Statutes (1975). The dictates there mandates a bilateral decision making process which becomes effective after an employee organization has been certified by the Commission. At that juncture, the public employer is no longer free to make unilateral determinations with respect to items which are considered "wages, hours, and terms and conditions of employment". See for example District School Board of Hillsborough County and Hillsborough C.T.A., PERC order no. 76U-1181 (October 4, 1976). The Charging Party and/or its agents objected to the City Service Rules and Regulations first and second parts each time they were brought up before the Council. Respondent at no time requested any input from the Charging Party's agents respecting its position in fulfilling its obligation to represent the unit employees it was certified to represent. The Respondent's affirmative defense that the Charging Party's members were advised and participated in the enactment of the City Service Rules and Regulations and the pay scale as it relates to unit employees was considered. However, when an examination of the positive duty placed on the Respondent as it relates to its duty to bargain with the certified representative, such a position fails to withstand scrutiny and amounts to conduct representing an abrogation of its duty to meet with and confer with the designated certified representative. Absent an impasse, necessity or an express or implied waiver (all of which are absent here), the employer was expressly obligated to refrain from taking the unilateral action which it took on December 30, 1975, on March 30, 1976 and on May 28, 1976. Under these circumstances, and in the absence of any evidence which would permit the employer to unilaterally act as stated above, the conclusion is inescapable that the Respondent consciously abrogated its duty as set forth in Chapter 447.309(1), F.S., and engaged in conduct violative of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to post at its facilities, in conspicuous places, on forms to be provided by the Commission, a notice substantially providing: that it will bargain collectively, upon request, with the Charging Party as the exclusive bargaining representative of the unit employees as stated above; that it will not make unilateral changes in wages, hours, and other terms and conditions of employment of said employees and that it will not suspend bargaining or fail to meet and bargain collectively with the exclusive bargaining representative unless directed to do so by the Commission. RECOMMENDED this 27th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Irving Weinsoff, Esquire Suite 804, Roberts Building 28 West Flagler Street Miami, Florida 33130 Bruce A. Leinback, Staff Attorney for William E. Powers, Jr., General Counsel 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esquire 6299 West Sunrise Boulevard Suite 205 Sunrise, Florida 33313
The Issue The issue in this case is when the 97-day probationary employment period began to run for each of the Respondents, and whether their employment could be terminated without just cause.
Findings Of Fact Petitioner is the School Board of Polk County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Polk County. The Board hired both Respondents, Diane O'Brien and Marcee Gunn, to fill positions within the Polk County School System. Prior to the 2003-2004 school year, Federal requirements under the "No Child Left Behind" ("NCLB") program mandated that by the end of the 2005-2006 school year, all teachers in core academic areas must be "highly qualified" as defined by Federal guidelines. The guidelines state that a teacher must possess a combination of both appropriate certification and documentation of subject area knowledge. The determination of whether a teacher had the requisite knowledge was done by way of a battery of tests in the subject areas. At the time the NCLB program was instituted, Polk County was experiencing a high level of growth and was hiring approximately 1,200 new teachers each year. The shortage of teachers who had obtained the highly qualified status resulted in the Board hiring a class of teachers who were not highly qualified, but under certain restrictions. These teachers were deemed D-1 provisional substitute teachers. The D-1 teachers were hired with the intention of allowing them to be employed as substitutes, pending their passage of the subject area tests. D-1 teachers were first hired by the Board to fill positions in the 2002-2004 school year. D-1 teachers were paid a daily rate of pay and received insurance and retirement benefits. If the teacher ultimately became highly qualified, they were to be given seniority consideration retroactive to the date of their hire.1 As substitutes, D-1 teachers were "at will" employees and were not contract employees. Their employment could be terminated with or without cause at any time. All D-1 positions were terminated at the end of the school year for which they were hired. If a teacher had not obtained highly qualified status, they could be hired as a D-1 teacher for the next school year. The D-1 program was eliminated, in whole, at the end of the 2007-2008 school year. Diane O'Brien Respondent, Diane O'Brien, worked as a para-educator for 15 years before earning a degree in special education from Nova Southeastern University in 2006. O'Brien was hired by the Board to be a D-1 substitute teacher for handicapped students at Haines City High School for the 2007-2008 school year. At the time of her hire, O'Brien signed a Conditional Employment Agreement that refers to her as "Teacher." The agreement does, however, set forth certain requirements for becoming a regular teacher. O'Brien was assigned a full-time para-educator to assist her and was given a classroom for purposes of fulfilling her position. At all times during the school year, O'Brien acted as and considered herself to be the official teacher for the class. O'Brien was evaluated during the school year by the principal and the assistant principal. O'Brien attended the IEP meetings and was responsible for writing IEPs for her students. O'Brien was never referred to by staff or other teachers as a "substitute" teacher during that school year. Nonetheless, O'Brien signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year" when she was hired. The document clearly indicates the requirements for a regular teacher and states that until such requirements are met, the teacher is considered a provisional D-1 substitute. O'Brien does not specifically remember signing this particular document; she said she signed many documents when hired, and none of them were explained to her. O'Brien did not meet the requirements to be a regular teacher at that time. During the 2007-2008 school year, O'Brien was paid as a D-1 substitute teacher, i.e., $115 per day, plus benefits. As early as August 2007 (the month classes began), O'Brien contacted a Ms. Capoziello requesting that her salary be changed to full-time teacher salary. She was advised that she had not yet met the requirements for a full-time teacher, because she had not yet met the "Certified, Qualified and Highly Qualified" requirements set forth in the Guidelines for Provisional Substitute Teachers. In December 2007, O'Brien indicated in an email that she was working hard to pass the necessary tests, but had not yet done so. In January 2008, O'Brien contacted the human resource officer to inquire as to when her status would change. In response, she received the following explanation: Please refer to the individualized Guidelines for Provisional Substitute Teachers 2007-2008 School Year that you signed on August 8, 2007. During New Educator Orientation, you were provided with the requirements necessary to attain "highly qualified" status for your ESE assignment. You are fully certified in ESE, but according to federal legislation, you are not considered "highly qualified" as defined in the law, because you have not "demonstrated subject matter competence" to teach ESE academic subjects. [F]or your current assignment, you need to pass the Elementary Education K-6 subject area exam to be deemed "highly qualified." After you have completed this requirement that was provided to you on August 8, 2007, then you will be eligible to transfer to B1 status as a regular teacher. (Emphasis in original.) After the end of the 2007-2008 school year, O'Brien passed the subject area exam necessary to achieve "highly qualified" status. She was then hired in the 2008-2009 school year as a regular teacher by the Board. O'Brien commenced work under her first annual contract with the Board as a regular teacher on or about August 11, 2008. On November 11, 2008, a memorandum was issued to O'Brien by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." O'Brien signed the memorandum, acknowledging receipt. The memorandum identifies O'Brien as "an initial annual contract teacher." The effect of the memorandum was termination of O'Brien's employment by the Board. O'Brien maintains that her period of teaching during the 2007-2008 school year was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. Marcee Gunn Respondent, Marcee Gunn, received her education at the University of Missouri at St. Louis. Gunn received her Florida teaching certification and was, in August of 2007, a certified teacher. Gunn was hired by the Board as a pilot D-1 substitute teacher for the 2007-2008 school year. A pilot substitute teacher fills in for absent teachers at one particular school, rather than going to various schools. In February 2008, Gunn was transferred from a pilot substitute to a permanent position as a kindergarten teacher at the School. The previous teacher had moved to another position, and Gunn was asked to fill the position through the end of the current school year. The permanent position was also classified as D-1 substitute, because Gunn had not yet become highly qualified. Gunn acted as, and considered herself to be, the full-time kindergarten teacher. She organized the classroom, prepared all student assignments, issued a monthly newsletter, and attended IEP meetings. Gunn was evaluated in her position by the principal and assistant principal. While Gunn was a pilot D-1 substitute, she received pay of $115 per day, plus benefits. At the time she became the permanent kindergarten teacher she received the same pay, but believed she would be receiving regular teacher pay. However, upon taking the kindergarten teacher position, Gunn signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year." The document clearly indicates that Gunn was being hired as a D-1 substitute and sets forth the requirements for becoming a regular teacher, i.e., passing a test in the subject area to be taught. Gunn also acknowledges signing the document, but does not have any specific recollection of having seen it. She did know that the document required her to pass the K-12 subject area exam in order to be reclassified as a regular teacher. Gunn's position was terminated at the end of the 2007-2008 school year. Gunn was re-hired by the Board for the 2008-2009 school year as a regular teacher for the same kindergarten class. (The evidence is not clear whether Gunn was hired in 2008-2009 as a D-1 substitute or a highly qualified teacher. The fact is not relevant, however, because even if she was a regular teacher, she would have been in her first year of an annual contract.) On November 14, 2008, a memorandum was issued to Gunn by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." Gunn signed the memorandum, acknowledging receipt. The memorandum identifies Gunn as "an initial annual contract teacher." The effect of the memorandum was termination of Gunn's employment by the Board. Gunn maintains that her period of teaching during the 2007-2008 school year (or at least a part of it) was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. There is no dispute by Respondents that the dismissal memoranda were issued within 97 days of their commencement of work during the 2008-2009 school year. Rather, each Respondent contends that their full-time, contracted employment with the Board commenced earlier than the 2008-2009 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Polk County School Board, terminating the employment of Respondents, Diane O'Brien and Marcee Gunn, effective as of the dates determined by the Board. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2009.
The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue The issues in this case are whether or not Respondent: During the course of its negotiations for collective bargaining agreements for the above charging parties which are certified employee organizations representing various units of Respondent's employees, interfered with restrained or otherwise coerced employees in violation of Chapter 447.501(1)(a), Florida Statutes, (herein sometimes called the Act). Refused to bargain in good faith with the charging parties as certified bargaining agents of its employees, in violation of Chapter 447.501(1)(c) of the Act. Refused to discuss grievances in good faith pursuant to the terms of collective bargaining agreements in violation of Chapter 447.501(1)(f) of the Act. At the close of the testimony all parties waived oral argument, but briefs were filed by the General Counsel of the Public Employees Relations Commission (herein sometimes referred to as the Commission), Counsels for the International Association of Firefighters, Local number 747 (herein IAFF) and the Respondent which have been carefully considered by me in preparation of this recommended order which will be distributed to the parties in the usual course. Upon the entire record in this case, observation of witnesses on the stand, and consideration of arguments of counsel, I make the following:
Findings Of Fact The complaints allege, the parties admit and I find that the Respondent is a public employer within the meaning of Chapter 447. The complaints allege further, the parties admit and I find that the Charging Parties are certified employee organizations which represent various employees of the Respondent in units which will be set forth in detail hereinafter. During 1976, all three employee organizations were parties to collective bargaining agreements with the employer which expired on September 30, 1976. Respondent began negotiation with the Pinellas County Police Benevolent Association, PBA, herein, on March 10, 1976, with the IAFF on April 29, 1976 and with the International Brotherhood of Firemen & Oilers, Local 1220 (IBF&O herein) on August 9, 1976. After numerous negotiation sessions, the statutory impasse procedures were invoked and hearings were held before a special master on September 27 and 28, 1976. However, subsequent to the invocation of the impasse procedures and prior to the special master hearings, the parties proceeded through mediation and continued bargaining sessions until or about September 16, 1976. On August 4, 1976, the City Council met in a "workshop session" and abolished the step-merit increase pay plan which had been in effect for several years. The step-merit increase pay plan had been a principle item of contention between the parties in bargaining and was one of the three issues submitted to the special master during hearings on September 27 and 28. Other issues of whether or not changes should be made in the pay plan provisions for firefighters and lieutenants and whether changes should be made in the acting officer pay policy provisions were also submitted to the special master. The following day, on August 5, the City's chief negotiator, Robert DuVernoy, was instructed by the City Manager that the City Council had directed the step-merit increase pay plan be abolished. On September 29, 1976, the Respondent, through its chief negotiator Robert E. DuVernoy, notified the presidents of all three Charging Parties that wages would be frozen at September 30th levels allegedly due to expiration of the various contracts. Additionally, on October 6, 1976, Respondent informed the IAFF that effective October 4, 1976, the following terms and conditions of employment would be unilaterally altered: increase in "checkoff" fee from $.04 per individual to $500.00 for processing all payroll deductions for fiscal year 1976-77; the employee organization grievance procedure, the sick leave provision for family illness, the "step- merit increase pay plan" and the withholding of increments arising under said plan, the acting officers program, insurance coverage for non-high risk on-duty injury and the physical exam program were all deleted. Respondent announced its plan to reduce from $5,000.00 to $2,000.00 its life and accidental death and dismemberment insurance. All of these changes were in fact implemented as reported by Respondent. Subsequent to September 29, 1976, the Respondent refused to process grievances concerning nonpayment of step increments filed by employees represented by IBF&O stating that the subject matter of such grievances was nongrievable and inappropriate. Pursuant to the step-merit increase pay plan contained in each of the parties' collective bargaining agreements, employees were eligible for an evaluation on their anniversary date and assuming that their evaluation was satisfactory, they were entitled to a step increase pursuant to a contractual salary schedule. Testimony reveals that these increases were granted almost automatically and that the plan had been operative since 1972. THE POSITION OF THE RESPONDENT The Respondent, in its answer and during the course of the hearing, denied the commission of any unfair labor practices. Respondent urges that pursuant to its inherent managerial rights in the procedure delineated in the impasse resolution provisions of the statute, the legislative body through its political process determined the level of services to be offered to the City August 5, 1976, and the substantive conditions of employment for bargaining units when they took final contract action in "the public interest". Respondent alleges further that the executive branch geared to the legislative process, conducted meaningful negotiations at the table which continued through the special master's proceedings with the PBA and IAFF and that only when the opportunity to reach agreement at the table was exhausted, an agreement had to be reached and with the budget having been determined, the City had no alternative but to eliminate the merit step plan, the grievance procedure and checkoff fee once the contract expired. With respect to the other changes, Respondent insists that such changes amounted only to implementation of its last best offer at the bargaining table and was therefore legitimate and proper. As regards the IAFF, Respondent urges that it has no standing to now complain since it waived any rights it had under the expired 75-76 collective bargaining agreement. Respecting the allegations of the IBF&O, the Respondent alleges that that organization recognized the circumstantial dilemma that the City faced and hammered out a collective bargaining agreement through the negotiating sessions. All parties agreed that after invocation of the statutory impasse procedures, the parties continued to negotiate and in fact movement was made with respect to those issues pending. The parties recognized and agreed that based on the newness of the Florida Statute which regulates collective bargaining in the public sector i.e., Chapter 447, that lessons gained from other state boards and the federal sector are instructive and are useful in resolving similar issues arising in this state. Turning to such cases, the NLRB has long recognized that an employer's unilateral action with respect to a mandatory subject of bargaining is a per se violation of Section 8(a)5 of the National Labor Relations Act, 29 U.S.C.A., Section 151 et seq. Such a position was sustained by the United States Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Supreme Court was confronted with the issue of whether an employer could unilaterally change its sick leave plan and system of wage increase reached during negotiations between the employer and the bargaining agent. In reaching its decision, the court found that the employer was not at liberty to institute changes respecting mandatory subjects of bargaining during the course of negotiations. 369 U.S. at 737. The court disregarded the necessity of establishing whether or not the employer's conduct evidenced an absence of objective good faith and aid such conduct amounted to per se violations and was a circumvention of the duty to negotiate. Other states have reached a similar result in assessing whether or not such conduct amounted to a violation of the duty to bargain. The undersigned has considered the exceptions which have been recognized i.e., waiver, necessity and impasse, and concludes that they are not operative based on evidence adduced herein. Evidence reveals that while the changes were implemented herein, negotiations were ongoing and the Respondent admits that movement was in fact made while the negotiating process was occurring. It was also noted that the matters in which the Respondent unilaterally changed were principle subjects affecting the terms and conditions of employment of its employees. For example, the step-merit increase pay plan had been operative for at least 5 years and in view of the customary grant of the increase, the employees continued to expect such increases. Based thereon, and in view of the fact that negotiations were ongoing and no exceptions to the per se rule were established as being operative herein, I find that the employer's conduct in unilaterally implementing the changes except as noted hereinafter, amounted to a violation of its duty to bargain in good faith within the meaning of Chapter 447.501(1)(c) and derivatively a violation of Chapter 447.501(1)(a), Florida Statutes. Respecting the allegation that the Respondent refused to process a grievance which arose after the expiration of the parties' bargaining agreement, the undersigned is of the opinion that the employer was not obliged to continue to process grievances pursuant to the grievance arbitration machinery provision contained in an expired contract since such obligations have been universally recognized to be contractual in nature which may be terminated during the contract hiatus. (See for example Hilton Davis Chemical Co., Division of Sterling Drugs 185 NLRB No. 58.) Based on the foregoing findings and conclusions, I hereby make the following:
Recommendation Based on the foregoing findings of fact and conclusions of law I shall therefore recommend that the Respondent: Make whole any affected employees by returning to them any and all benefits, financial or otherwise, lost as a result of its unilateral action which is or has not been presently restored. Post at its facilities in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain in good faith by changing terms and conditions of employment and thereby altering the status quo during the period in which the collective bargaining process is continuing. In all other respects, I hereby recommend that the complaint be dismissed. DONE AND ENTERED this 3rd day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony Cleveland, Esquire Staff Attorney for William E. Powers, Jr. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 John C. Wolfe, Esquire Post Office Box 2842 St. Petersburg, Florida 33731 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33132
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 =================================================================
Findings Of Fact JURISDICTION The Respondent, a Public Employer, has its principal place of business in the City of Winter Haven, Polk County, Florida, where it is engaged in the business of providing municipal services. Respondent is created directly by the Florida Constitution, a legislative body, and is administered by individuals who are responsible to public officials and/or the general electorate. On the foregoing facts I find that Respondent is a Public Employer within the meaning of Section 447.203(2), hereinafter referred to as the Act. THE LABOR ORGANIZATION INVOLVED The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. THE ALLEGED UNFAIR LABOR PRACTICES Introduction On or about May 28, 1975, the Commission issued a written certification certifying the charging party as the exclusive bargaining representative for firemen and fire engineer drivers employed by the City of Winter Haven. On or about January 27, 1975* the parties commenced collective bargaining negotiations. On or about May 28, the parties reached impasse. On or about July 31 and August 14, the parties met with the Special Master, and on September 18, the employer approved the Special Master's report. On September 19, the City Manager, Mr. W. D. Fultz, sent a letter to the Chairman of the Commission, Curtis L. Mack, and to the Association, stating that the Respondent had accepted the Special Master's Report without any changes and that the Respondent was enclosing the contractual provisions to the union to be added to those provisions to which the parties had tentatively agreed. Additionally, the Respondent, upon ratification by the bargaining unit, agreed to execute and adopt the agreements with approval from the City Commission. On or about September 25, the City Manager, prior to formal action by the City Commission, notified Mr. Mack and the Association that the Respondent was revoking its prior approval of the agreement submitted to the Association. The following day, September 25, the Association notified Respondent that the bargaining unit employees had ratified the contractual agreement that was sent by Respondent to the Association for ratification. On October 2, the Association attempted to sign the ratified agreement and the Respondent refused to do so. During the course of the negotiations, the Respondent was represented in collective negotiations by its agent, Paul Pothin and L. D. Woodard who, according to the pleadings, had the authority to enter into and negotiate on behalf of Respondent. The transmittal letter forwarded to PERC's Chairman stated, in pertinent part, that: "Therefore, I have this day furnished enclosed 'Contractual Provisions' to the Union to be added to those provisions to which the parties have tentatively agreed. Subsequent to ratifi- cation by local membership, the City agrees to enter into and execute the agreement in whole. Absent such ratification, it is our intention to implement all economic improvements guaran- teed by the agreement as a sign of good faith to our employees." The agreement transmitted from the City to the Employee Organization contained articles concerning both merit increases and salary increases. According to the evidence, the City's chief negotiator, Paul Pothin, was in agreement with the Special Master's Report until the morning of September 25. He apparently became unhappy with the report after the City became informed that a survey conducted by or on behalf of the Special Master revealed that the Respondent's firemen were making approximately 4.7 percent less than the Cities in the local operating area. With this information, Pothin contacted the City Manager who, in turn, sent a letter to the Employee Organization seeking to revoke his prior approval by letter dated September 25, 1975. The Employee Organization, on the evening of September 25, ratified the previously agreed to articles and notified the City of that action on the following day, September 26. On October 2, Messrs, Motes and Clifford Lewis, agents of the Charging Party, visited the Respondent's City Managers in an effort to sign the agreement to no avail. When the City Manager refused to sign the contract as submitted, the Charging Party offered to submit the question in issue to the grievance procedure under the contract, which the City rejected, and state that they did not feel compelled to sign the agreement. It is the Charging Party and the General Counsel's position that under Florida Law, the City Manager cannot unilaterally revoke a prior commission action. Citing State ex rel. McIver v. Swank, 12 So.2d 605, Ramsey v. City of Kissimmee, 19 So.2d 474, Brown v. City of St. Petersburg, 53 So.141. The Respondent, on the other hand, takes the position that it revoked this offer prior to acceptance by the union and therefore it cannot be bound by an offer that contains an error when the other party is notified of such error prior to acceptance. Accordingly, Respondent takes the position that by failing to execute the document which did not represent its intent, such act cannot be evidence of an unfair labor practice within the meaning of Florida Statutes 447.501. Therefore the Respondent urges that the Complaint be dismissed. ANALYSIS, DISCUSSION AND CONCLUSION Section 447.309, F.S. states in essence that any collective bargaining agreement reached by the negotiators shall be reduced to writing and such an agreement shall be signed by the chief executive officer and bargaining agent. Additionally, Section 447.501(1)(c) states that an employer commits an unfair labor practice by refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit. These are the guiding statutes which control resolution of the issue posed in this case. The facts here show that when the union received the certification, the parties commenced negotiations for a collective bargaining agreement and met on approximately six different negotiating meetings in an attempt to reach a full collective bargaining agreement. The parties reached impasse on a number of items and being unable to resolve the deadlock on the impasse items, the parties called in a Special Master, Dr. James J. Sherman, Professor of Industrial Relations, University of South Florida. (The Special Master's Report was received into evidence and made a part hereof by reference.) Contained in the Special Master's Report was a provision dealing with wages wherein the Special Master arrived at a figure based on a study conducted of all fire departments in the Winter Haven area. The salary contained in his recommendation was that employees covered by the certified appropriate unit shall be paid a rate of no less than $8,089 per year. He further recommended that the City agree to pay the employees covered by the agreement "the average salary increase" granted for cities in the "local operating area" effective October 1, 1975. Pursuant to a special commission meeting held on September 18, 1975, and approved by the City Commission of the City of Winter Haven, Florida, in regular session on October 1, 1975, the City Commission met and Commissioner George L. Harris moved for adoption of the findings, opinions, and awards of the Special Master. This act was seconded by Commissioner George L. Harwick. The Commissioners unilaterally agreed to adopt the economic benefits contained in Special Master's award provided the union did not ratify such by October 1 such that the City could implement them by the same date. Mr. Pothin, the City's Labor Consultant, presented the findings, opinions, and awards and recommended adoption of such by the City. These recommendations were relayed to the union by letter and a copy sent to Curtis L. Mack, PERC's Chairman, and the union members voted to ratify the Special Master's Report as prepared by Mr. Pothin which contained the awards and findings of the Special Master. The ratification vote occurred on September 25. Earlier that same day, Pothin and the City Manager sent a letter to the union revoking the prior letter which indicated the City had formally approved the findings of the Special Master as embodied by the transmittal letter and contract to the union. The union advised the City of such ratifzzz ication on September 26 and on October 2, Mr. Motes, along with Clifford Lewis, visited City Hall in an attempt to obtain the City Manager's signature on the agreement. The City refused and the union attempted to invoke the grievance procedure contained in the contract whereupon the Respondent rejected stating that they did not feel compelled to sign the agreement and further, that the grievance machinery was not operative inasmuch as there was no contract containing such grievance arbitration machinery. It is clear that parties are required to bargain in good faith for employees contained in a certified appropriate unit with the certified bargaining agent and attempt to embody such agreement in a final form and reduce it to writing when such an agreement is entered into. Section 447.501(c) F.S. The evidence here reveals that the City initially agreed to adopt the Special Master's findings and later attempted to renege on this action once it noted that the current wages for the unit employees was approximately 4.7 percent lower than those salaries recommended by the Special Master. However, in doing so, the withdrawal of the acceptance did not meet the authorization required in a commission manager form of government. Thus there was no proof that the City Manager alone had the authority to rescind the prior action entered into by the City Commissioners as far as this record reveals. It is clear that the recommendation that the Special Master's award be adopted took place at an open meeting of the commissioners whereupon they formally agreed to adopt the Special Master's findings. There was no further evidence indicating that the City Commissioners formally rescinded this action by a special meeting or any other formal action. Nor was there any other showing of any form of ratification of the acts of the City Manager wherein he attempted to repudiate the agreement entered into by the full commission at the special commission meeting held on September 18 and formally adopted by a regular meeting held October 1, 1975. Based on the above, it is concluded that the action of the City Manager on September 18 was not authorized by the full city commission and therefore the actions taken by him were incomplete and unauthorized. See for example, Brown v. City of St. Petersburg, 153 So. 141; Ramsey v. City of Kissimmee, 190 So. 474. Accordingly the city's failure to implement the agreement submitted to the union on September 9, 1975, resulted in a refusal to bargain within the meaning of Section 447.501(a)(c). Based on the above I find that the actions of the respondent set forth above amounted to bad faith bargaining by attempting to repudiate its previously agreed to article concerning wages. Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following:
Recommendation I therefore recommend that the Respondent be required to implement the provisions of the agreement to which it previously agreed to concerning wages and all other terms contained therein. DONE and ORDERED this 6th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact On May 1, 2001, Petitioner was reassigned from Accountant Supervisor I to Administrative Assistant II. At the time, Petitioner was under the Career Service System and was a probationary status employee. Petitioner’s position as an Administrative Assistant II was a position within the PERC certified collective bargaining unit, entitled the Administrative and Clerical Unit, Certification Number 542 issued on June 25, 1981. For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In the early part of 2001, the Department’s Bureau of Personnel Services worked with the Department of Management Services to implement the Service First initiative. As part of Service First’s implementation, the Bureau reviewed positions to determine whether they met the criteria set forth in Section 110.205, Florida Statutes. After its review, the Bureau forwarded its determination regarding those positions to the Department of Management Services (DMS) for reclassification or exemption as appropriate. The Bureau reviewed Petitioner’s duties and consulted with Petitioner’s immediate and indirect supervisors regarding the essential duties assigned to Petitioner’s position. Based on that review, the Bureau determined that Petitioner’s position was confidential. Although the evidence at the hearing did not demonstrate such the Bureau determined that Ms. Wofford and Petitioner had access to confidential collective bargaining material due to their work with the Long-Range Program Plan (LRPP). On July 1, 2001, Petitioner’s position was reclassified from Career Service to SES due to the Service First initiative. Petitioner’s position was reclassified to SES because it was determined to be a confidential position as defined in Section 110.205, Florida Statutes. The title of the position remained the same. A new position description under SES was approved by the Division Director, Ms. Sandy Delopez. The new SES description was essentially the same as Petitioner’s old Career Service position description. In pertinent part, the position description as of July 1, 2001, stated the following: This position is authorized to work independently assisting management in the coordination of tasks and/or assignments, which are complex in nature, broad in objective with diverse functions. Duty [Sic] involves the performance of activities, which involve independent planning and prioritization. Assists in collecting, evaluating and analyzing data and work. Review records and reports that require action and recommend solutions that fully utilize technology. Perform special assignments, research, report preparation, conducting and/or directing special projects or activities as directed. Responsible for performing other related duties as required. Petitioner remained employed under the new classification until his termination on March 12, 2003. As an Administrative Assistant II under SES, Petitioner worked in the Office of Planning and Business Support under the Division of Administrative Services in the Department of Highway Safety and Motor Vehicles. One of the Division’s major responsibilities was to coordinate preparation of the LRPP. The Division provided administrative support functions for the Department, including budgeting, accounting, human resources, purchasing and contracts. Petitioner reported to Stacy Wofford, the Bureau Chief of Purchasing and Contracts, who acted as his immediate supervisor. Ms. Wofford served as the Agency Planning Officer. Petitioner’s chain of command also included Ms. Wofford’s direct supervisor, Mallory Horne, Jr., Chief of Staff, and the Division Director, Ms. Sandy DeLopez. Ms. Wofford had the primary responsibility for preparing the LRPP. The Office of Planning only had two employees, Ms. Wofford and Petitioner. The LRPP is a five-year plan prepared by Respondent each year, pursuant to Section 216.013, Florida Statutes, that lays out the agency’s goals, strategies for reaching those goals, and the performance measures used by the agency in evaluation of its performance. The Governor’s Office directed the items and issues that were to be included in the LRPP. The LRPP addresses Respondent’s plan for reductions in force, and identifies specific positions that could be impacted by such reductions in force. There was no substantive evidence that this information was used in collective bargaining in any substantial way. The LRPP also is used to justify the Department’s legislative budget request. The plan provides the framework and foundation for the Department’s legislative budget request and addresses how the Department is going to meet the Governor’s mandate of a five percent budget and workforce reduction for each year. As a part of the LRPP, the Department provided its plan for reductions in force and identified specifically positions that would be impacted. It has a substantial impact on the preparation of the Department’s budget and legislative consideration of that budget. However, neither Ms. Wofford, nor Petitioner prepared or administered agency budgets. Ms. Wofford had primary responsibility for coordinating the plan’s preparation. In preparing the LRPP, Ms. Wofford had to analyze the goals of the various Divisions in the Department and what positions may be possible for elimination or consolidation. Furthermore, Ms. Wofford consulted with bureau chiefs in staff meetings and briefings to provide information to the Division Director that could be used in determining where job cuts would be made. Based on her job description, Ms. Wofford’s position was not of a routine, clerical or ministerial nature and did require the application of independent judgment, such that she constituted a managerial or supervisory employee. However, the information used in the LRPP was developed by and collected from the various Divisions of the Department. In that regard the evidence demonstrates that Ms. Wofford’s true duties were of a ministerial nature and included faithfully reporting to others the information she obtained from others. Petitioner assisted Ms. Wofford in obtaining the information collected from the various Divisions and putting that information into the correct format for easy inclusion into the LRPP. To accomplish these tasks Petitioner utilized Microsoft Word, Excel and Access and had significant experience in those areas. None of the information gathered in preparing the LRPP was exempt from disclosure under the Public Records Act, Chapter 119, Florida Statutes. The information contained in the LRPP was clearly important and sensitive because of its potential impact. The evidence did not show that such information was secret or confidential information. The testimony of the Division Director that he considered everything in his office to be confidential is insufficient to establish such confidentiality, since clearly the Sunshine laws apply to his office and much of the information he deals with is subject to public scrutiny. Moreover, such testimony is insufficient to establish confidentiality strictures down to Petitioner’s level of employment. At the time, the DMS conducted the collective bargaining negotiations with unions representing State employees. The Department did not conduct such negotiations. However, the Department had several managers on the advisory council that worked with DMS on collective bargaining with unions. These included Ken Wilson, Sandra DeLopez, a chief from the Highway Patrol, and sometimes one of the agency attorneys. Neither Stacy Wofford, nor her supervisor, Mallory Horne, was the bargaining team. Neither Ms. Wofford, nor Petitioner prepared, or assisted anyone in preparing, collective bargaining proposals to be used in collective bargaining negotiations. Moreover, neither was ever asked to do so. According to Petitioner’s testimony, he preformed two general functions in his position as an Administrate Assistant II: writing computer programs and performing ad hoc clerical tasks for Ms. Wofford. Approximately 80 percent of Petitioner’s time was spent on various computer programming tasks; approximately 20 percent was spent in performing clerical tasks. On the other hand, Ms. Wofford described Mr. Snyder as her “right hand person,” and as someone who worked very close with her. The evidence showed that Petitioner’s work in programming consisted of creating various programs that were ultimately used by other administrative units to collect and display data. After creating the programs, Petitioner would turn the application over to the administrative unit for which it was prepared, for its use. He developed programs, to analyze how quickly property was entered into the State property system, customer service surveys, the use of electricity in State buildings and programs for the State childcare facility. These were created, primarily, using Visual Basic for applications and Microsoft Excel. Petitioner’s work on the LRPP was essentially clerical in nature. It consisted of receiving numerous documents from the various Divisions of the Department, and compiling all of the documents into a single document, with consistent formatting. His primary concerns were that the final document used the same typeface, or font, the same margins, and that the various compiled documents fell on the correct page. He had no control over the data; he simply arranged the formatting and entered information into spreadsheet and database programs for use in the LRPP. Petitioner had no policy-making role in the development of the LRPP. Petitioner helped Ms. Wofford in assimilating information and verifying that the information being provided by the various program areas was the most recent and accurate. In addition, he made sure that the information was uploaded electronically in the Legislature’s budget system. Petitioner also created the formulas used to get to the output reflected on the LRPP. However, these formulas were basic mathematical formulas and not formulas that used policy parameters in their creation. The evidence did not show Petitioner’s assistance was independent or required significant amounts of independent judgment. Petitioner, also, along with Ms. Wofford, was involved in meetings related to the preparation of the LRPP. These meetings would have included Mr. Neal Standley, Budget Chief, Ms. Sandy DeLopez, Division Director, Mr. Ken Wilson, former Personnel Chief, Ms. Rene Knight current Personnel Chief, and other managers. Again, the evidence did not demonstrate that Petitioner’s role was other than to explain various processes used to create the LRPP. His role did not involve policy judgments or require independent action or judgment. Petitioner did not supervise any other employee; did not give performance evaluations; did not work on collective bargaining grievances or arbitrations or on Career Service appeals; and did not assist in developing policies or materials to be used in collective bargaining. Petitioner did not regularly handle information that was not subject to public inspection. Although he performed clerical work on the LRPP, he never knowingly viewed information identifying positions the agency intended to eliminate or consolidate due to reductions in force. In particular, Petitioner did not have access to a database of positions to be eliminated due to reductions in force, and did not know of the existence of any such database. In short, the evidence did not demonstrate that Petitioner was either a managerial employee or an employee involved with confidential matters. Therefore his position should not have been reclassified from Career Service to SES.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position of Administrative Assistant II, is that of a Career Service employee, setting aside the classification as Select Exempt Service, and reinstating Petitioner as a person entitled to rights pertaining to Career Service employees as of the time of his improper reclassification. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2005. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Room A-432, Neil Kirkman Building Tallahassee, Florida 32399-0500 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Melissa Horwitz, Esquire 6840 Highland Park Terrace Tallahassee, Florida 32301 Avery D. McKnight, Esquire Alien, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
