Findings Of Fact The supporting and counterveilling evidence relevant to the objections may be classified as evidence going to the allegation that Petitioner engaged in objectionable conduct by offering to waive initiation fees for employees joining the union prior to the election; evidence surrounding the allegation that Petitioner engaged in objectionable conduct by telling employees they would extend superior treatment to members as opposed to non-members; and evidence surrounding the allegation that Petitioner engaged in objectionable conduct by threatening employees with loss of jobs if they did not join and vote for Petitioner. The Employer presented Rick J. R. Wilson who testified that James Carpenter, Petitioner's business agent, explained to those employees who attended union meetings that initiation costs would increase after the ground floor was established. He testified that this statement most probably was made during the fall of 1974. However, he later testified that it was made throughout the organizational campaign. On another occasion he testified that the statement could have occurred within seven (7) days preceding the day of the election, but that it most likely occurred during the fall of 1974. He testified that the pre-election atmosphere was not tense and that he was not threatened nor did he hear of any other threats being made to any other employee. Richard Jackson, an employee was also presented and testified that he spoke to fellow employee Ralph Holbrook who told him that the initiation fee to join prior to the election would be $10.00 and that thereafter it would be increased to $75.00. Jackson did not take that statement seriously or as a threat nor did he become a union member prior to or after the election. He assumed that he would be treated fairly. According to him, Holbrook is not a union official. Samuel Griffin also testified that he heard rumors that if the union got in, and he did not join, it would cost him more to join after the election. J. C. Pryor also stated that he passed by a group of men and over heard a conversation that if the union came in, it would cost more to join later. Paul Mason, an employee of approximately 8 years, voted in the election, attended union meetings and testified that Carpenter spoke at the meetings and said it would cost non-union members more at "the eventual time." He heard the statement at one time, and to the best of his recollection, the only meeting that he attended was in the fall of 1974. Tom Reed was also called and testified that during a meeting sometime in 1974, Carpenter told those in attendance that employees who joined the union would pay less prior to the election than those who joined subsequent thereto. He testified that Carpenter gave Mary Lawrence approximately $50.00 to pay off her bills that she had incurred during the organizing drive. In cross-examination, he testified that it was the employees who gave money to Mrs. Lawrence and others who are laid off and not, as it was rumored, that union funds were given to the laid off employees. Guy D. Pettis testified that it was possibly Carpenter who spoke of union costs and also that for employees who join now, it would be less than those employees who join subsequent to the election. He testified that Carpenter made the statement during June, 1974, at a union organizational meeting. Lamar Adams testified that to the best of his recollection, Carpenter made the statement of the increased initiation fee sometime in December of 1974 and that he heard no further statement from Carpenter on this point. He testified that he heard from other employees approximately 2 weeks prior to the election that employees better join the union now or that they would "pay dearly after the election". He attended no union meetings subsequent to December of 1974, and that he paid no credence to the statement that employees would have to pay dearly. Howard Wright was also called, and testified that he was told by Carpenter that there would be an increased initiation fee for those employees who join after the election. He was uncertain as to when these statements were made, however, he did testify that Carpenter told him that union as well as non- union members must be treated equally. According to Wright, Carpenter made the statement that during layoffs union men would receive preferential treatment with regard to recall as well as to other problems. He further testified that employee Holbrook told him that non-union employees would be looking for a job presumably after the election. He later testified that the County caused to be issued a letter to employees to advise them that they would not lose their jobs, and that Pappy Myers, the City Manager, held a meeting approximately thirty to sixty days prior to the election to advise all employees that they could vote for or against the Union. He explained their rights and advised that all employees would be treated equally. Pat Faircloth was called and testified that Carpenter told employees that he could only bargain for those employees based on Judge Faircloth's ruling in a decision respecting another matter involving the same parties. (During a meeting held within the past two months, Carpenter did not explain what would occur at this hearing, and that he made different comments about initiation fees for union and non-union members. Kevin Sullivan, an employee, was called and testified that union costs were discussed at union meetings and that at a meeting approximately one month prior to the election, it was stated that costs would be more to join the union after the election than it would be prior thereto. He substantiated the earlier testimony that Myers held a meeting shortly before the election and that he did not join the Union because he did not think much of the rumors of increased initiation fees. He testified that he did not hear of the increased initiation fees at a Union meeting. Jodie Sapp was called and testified that she did not hear Carpenter tell employees that initiation fees would increase after the election. Bill Howell testified that sometime during 1974, Carpenter spoke about the cost of initiation fees for late joiners. He recalled a meeting held by Pappy Myers who informed the employees that nothing would be held for or against anyone for voting in the election, for further that employees were free to vote their freedom of choice. The lead case in this area is N.L.R.B. v. Savair Mfg. Co. 414 U.S. 270, 84 LRRM 2929 (decided December 17, 1973). In Savair, the union won an election by a vote of 22 to 20, and the Employer filed objections. The critical objection alleged: That the union, and persons acting in its behalf, through misrepresentation, trickery and threats deceived certain employees into believing that if they failed or refused to sign a card requesting an election and the union was successful, they would be fined from $20 to $200 before they could become members of that union, which acts interfere with the employees' right to exercise a free choice. Evidence adduced at a hearing showed that prior to the filing of the petition an employee of the union, in obtaining signatures from employees ". . . told employees that they would be subject to a fine or an assessment fee if they did not sign the card in the eventuality that the union won the election". There was a great deal of discussion among the employees as to whether they would sign the union authorization cards, in view of the fact that, regardless of their desires and how they would actually vote, they could save themselves some money in the event the union was successful. Subsequent to the filing of the petition, the union officer addressed employees at a meeting. An employee asked this officer if there would be an initiation fee. He responded that there would be a small fee for those employees who failed to sign an authorization card prior to the election. The Board (NLRB), adopting the hearing officer's recommendations, concluded that conduct predating the filing of the petition did not constitute grounds for setting aside the election, relying on Goodyear Tire and Rubber Company, 138 NLRB 453. With respect to the conduct occurring after the petition was filed, the Board determined that it would not affect the results of the election, relying on DIT-MCO, Inc., 163 NLRB 1019. The Employer refused to bargain, and the Board in a summary judgement proceeding found a violation of s8(a)(5) and (1) of the National Labor Relations Act. 29 U.S.C. 151 et seq. The Sixth Circuit refused to grant enforcement stating: "We simply refuse to believe that the waiver of initiation fees, contingent upon the outcome of an election, whether it is referred to as a fine, an assessment, or a waiver of initiation fees, is not coercive in the context of a union election." 470 F. 2d 305; 82 LRRM 2085. The Sixth Circuit's rationale in Savair was essentially that set forth in Lobue Brothers, 109 N.L.R.B. 1182, wherein the Board found that a waiver of initiation fees was objectionable because it was contingent upon the results of the election. The Sixth Circuit rejected the Board's later decision in DIT-MCO, 163 N.L.R.B. 1019, 1021, in which the Board said: In subsequent cases the Board gave the Lobue rule a strictly limited construction ... There's no pub- lished decision subsequent to Lobue in which the Board found that the facts of the case warranted application of the Lobue rule. We are now of the opinion that no real distinction exists between a situation where the union offers to waive or reduce the initiation fees, but nothing is said about the election result, and one where, as in Lobue, the waiver is expressly conditioned on the outcome of the election. For whether expressly told so or not, an employee must recognize as a practical matter the way a reduced initiation fee can be- come of value to him only if the union wins the election. The Supreme Court affirmed the judgement of the Sixth Circuit finding that waiver of initiation fees only for those signing authorization cards prior to the election impermissibly interferes with the election. It does not necessarily follow that the Supreme Court intended to reinstate the Lobue rule in Savair for it cited that case for the broader proposition that "the Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining (slip opinion, P.S)." Since the Supreme Court did not specifically approve or even mention the distinction made in Lobue between offers which were expressly conditioned on the result of the election and those which were not, it may not have rejected the Board's later reasoning in DIT-MCO supra, that, practically speaking, all waivers are 5/ implicitly conditioned on the result of the election, and hence, that a distinction between waivers expressly conditioned on the result of the election and other waivers is meaningless for the purpose of assessing their impact upon the election. The Supreme Court's decision supplies no rationale which would support a distinction drawn on the basis of whether or not a waiver is conditioned on the result of the election; it rather appears to rationalize the distinction among waivers on the basis of whether or not there are forced conditions on pre-election support for the union. Using this standard, virtually all cases could be affected by the offer being conditioned on the election results. In such a case, the issue presented is whether an offer contingent on the result of the election is an improper inducement to vote for the union. The theory there might be that employees desirous of becoming union members could do so more cheaply by voting yes in the election. The problem with such a theory is that employees desirous of joining the union would more than likely be those who would vote yes regardless of the waiver, so that it could hardly be said that the offer affected those employees' free choice in the election. Arguably the offer could affect the employees' free choice in the election to the extent that those employees, whose only reservation about the union was based on the high cost of joining, would presumably be persuaded to vote for the union after the initiation fees were waived. However, the Supreme Court in Savair recognized that unions have a legitimate interest in removing the artificial barrier to employees' support imposed by the initiation fee (slip opinion p.4-51 note 4). The Supreme Court in its decision in Savair relied on various factors including employees' right to refrain from union activities. The NLRB has itself recognized in another context that promising or conferring benefits may unduly influence representational elections. See, for example, Wagner Electric Corporation, 167 N.L.R.B. 532 (grant of life insurance policies to those who sign with the union before representation election "subjects the donees to a constraint to vote for the donor union"); General Cable Corporation, 170 N.L.R.B. 1682 ($5 gift to employees by union before election, even when not conditioned on outcome of election was inducement to cast ballot favorable to union) Teletype Corporation, 122 N.L.R.B. 1594 (payment of money by rival union to those attending pre-election meetings). (slip opinion p.9-10). This suggest that the Supreme Court considered the employees' right to refrain from union activity to include the right to be free from monetary inducements which encourage the pre-election signing of authorization cards, it also apparently presumes that an employee would be induced into signing a card by a union promise to waive initiation fees only for those who sign cards prior to the election. While an employee could vote against the union in the election, he would have no assurance that the union would not win and negotiate a union security clause. In reflecting on these factors and the rationale utilized by the Supreme Court and subsequent NLRB cases, we first must turn to an examination of the fact that in this case we are dealing with a right to work state wherein the problems of many of the membership restrictions are not present. Thus, employees need not fear the effects of union security clauses. Therefore, it must next be considered to what extent the employees' free choice was affected, if at all, by the offer to waive the initiation fees. This of course assumes that the offer was in fact made. Turning to the facts in this case, and looking at the evidence in the most favorable light of the objecting party, the Employer, the undersigned is of the opinion that insufficient showing has been made that the employees' free choice has been affected in this election. The evidence surrounding the offer is at best sketchy and for those who heard the offer, the evidence as to their action thereon is unconvincing to establish that they acted out of fear in executing their authorization cards, or that their free choice was unlawfully affected. Most of the employees who had any testimony on the offer indicated that the initiation fee waiver was made sometime in the fall of 1974. There was other evidence that the employees heard of this waiver in and around the yard but none tied the offer to any union official responsible for or otherwise so close to the union so as to tie their actions to the union's responsibility. Also the test in these cases is whether there is a present or immediate impact on the employees. In this respect, the evidence falls short. Even the several employees who testified about the waiver, indicated by their testimony that they did not act on the union's alleged offer because several of them refused to join even after hearing the so called waiver of initiation fees. There was also other evidence that the employees freely and openly discussed the affects of the union and that the pre- election atmosphere surrounding the employer's facility was anything but tense. Other evidence established that Pappy Myers, the City Manager, called a meeting of employees to explain their rights which had the effect of rebutting any statements made by the union which arguably transgressed impermissible pre- election conduct. This meeting occurred approximately one week prior to the election. Based on these circumstances and the entire record in this case, the undersigned concludes that there was no waiver of initiation fees which, in and of itself, constituted objectionable conduct affecting the election. Consequently, the undersigned recommends that the objection be overruled. The next objection is that: Petitioner engaged in questionable conduct by telling employees it would extend superior treatment to members as opposed to non-members. By way of background, in this case the Petitioner filed an action in the Circuit Court in and for Bay County (Case No. 74-944) Petitioning for issuance of a writ of mandamus; for declaratory judgement; and for temporary and permanent injunctive relief. In the decision in that case, the court ruled that the defendant, Bay County, has no obligation to, indeed Bay County had no legal authority to, recognize the plaintiff or any other labor union, as an exclusive bargaining agent for all County employees with any given group on the basis of consent of less than all employees within said group. Relying on Dade County Classroom Teachers Association v. Ryan, 225 So.2d 903 (Fla. 1969). (Emphasis added). The Court went on to rule as a matter of law that Petitioner's complaint for declaratory judgement was granted to the extent that the defendant, Bay County, is presently obligated to bargain collectively with plaintiff, International Brotherhood of Teamsters, Local No. 991, on behalf, and only on behalf of those employees of defendant, Bay County, designating plaintiff as their collective bargaining agent. This ruling in the undersigned's opinion set the stage for Carpenter's remarks regarding the union's obligation to represent those employees who were members of that organization. In fact, of those employees who testified, the record reveals that employees consistently testified that these remarks were made based on Judge Faircloth's ruling. Illustrative of this point is the testimony of Drake Wilson, J. Pryor and Pat Faircloth. Significantly enough, all the employees testified that there was open and frank discussion regarding the benefits of unionization and others testified that Carpenter explained to them that union and non-union members must be treated fairly. See for example the testimony of Howard Wright. Based on the above findings, the undersigned concludes that the Petitioner did not engage in questionable conduct as alleged, by telling employees that it would extend superior treatment to members as opposed to non- members. In fact, the evidence on the other hand establishes the fact that there was open and frank discussion throughout the campaign; no employee testified that he felt threatened by any remarks made by any union officials during the campaign and additionally Carpenter explained to employees that all employees, both union and non-union members, would be treated equally and that Pappy Myers, the City Manager, explained to employees at a meeting approximately 30 to 60 days prior to the election that all employees would be treated alike. 6/ PERC's intervention should be limited to instances where, because of unique circumstances - such as the use of intentional deception or trickery - even an ordinarily skeptical voter would have had no reason to suspect that a given campaign statement was untrue and no way to check on it if he did have suspicion. This approach would accord with the NLRB's approach and view of its scope of responsibility under the election procedures under the NLRA. 29 U.S.C. 151 et seq. This would put PERC in the role, not of paternalistically protecting employees from any misstatement they might rely on, but merely of overseeing the election process to ensure that no breach of fundamental fairness occurred. Such limited intervention would encourage voters to apply the same critical powers in representation elections they are expected to apply in other types of elections if they wish to make a reasoned choice. At the same time, it would encourage the parties to engage in the sort of "uninhibited, robust and wide open" debate which both the first amendment and Section 447.501(3), F.S., contemplates and which the United State's Supreme Court has recognized is essential to the effective functioning of the election process. See e.g., Linn v. United Plant Guards, Local 114, 383 U.S. 53, 61 L.R.R.M. 2345 (1966). In conclusion, I recommend that this objection be overruled. The next objection is that: Petitioner engaged in objectionable conduct by threatening employees with loss of jobs if they did not join and vote for Petitioner. Several employees testified about rumors that they heard threats that they would lose their job if they did not become union members. Most of these remarks or rumors were made several months prior to the election and the evidence is clear that approximately one month prior to the election, the County put out a letter to employees that they would not lose their jobs based on their membership or non-membership in the Petitioner. In fact, Pappy Myers, the City Manager, called a meeting prior to the election and explained to employees their rights to become members of or refrain from becoming members of the Petitioner and further explained to them that all employees would be treated alike. Most of the employees hearing such rumors testified that they did not feel intimidated by such rumors and all testified that there were rumors pro and con regarding the labor organization. Further, Wright testified that Carpenter made the statement that union and non-union members must be treated equally. In assessing this objection, it is also worthy to note that the prior court order involving these parties on another matter made the express finding that the Employer was not obligated to recognize Petitioner for those employees who were, in fact, not members of that organization absent their express designation as such. After consideration of all of these factors including the fact that all the employees testified that there was open and frank discussion in regard to the pros and cons of unionization and the fact that elections, while they are to be conducted in an atmosphere free of coercion and interference, common sense dictates that they should not be set aside based on bald allegations that some employees voiced a rumor that some threats were made, directed to non-union members in a situation where as here, the parties engaged in a lengthy organizational drive including court litigation. No employee testified that he joined the union because he feared that he would lose his job and when expressly asked that question, all denied that they felt threatened by such rumors. Further, of those who testified about having heard such rumors, testimony reveals that they never joined frankly because they considered the rumors as such, simply yard rumors. See for example the testimony of A. C. Wilson. Accordingly, the undersigned recommends that this objection be overruled. Another objection alleged that: Petitioner engaged in objectionable conduct by mis- representing to employees that they could strike. The evidence on this point is that Carpenter told employees that under the law, they could not strike but that there were ways of avoiding the express provisions of the law by, among other things, calling in sick. No employee testified that such statements were made subsequent to the filing of the petition and the Employer concedes in its brief that these statements, when made, were voiced prior to the critical period. Accordingly, the undersigned recommends that this objection be overruled. In summary, the undersigned recommends that the employer's objections be overruled in their entirety and that a certification of representative be issued. DONE and ORDERED in Tallahassee, Florida, this 29th day of June, 1976. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
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 issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
The Issue The issue is whether Respondent discriminated against Petitioner based on his national origin in violation of Section 760.10(1), Florida Statutes (2008).
Findings Of Fact Respondent operates a residential and commercial waste collection and disposal business. Respondent has multiple locations across the southeastern United States. It employs approximately 8,623 employees. Payroll Management, Inc. (PMI) is an employee leasing company. It assists companies with their human resource issues, payroll needs, employee benefits and worker compensation coverage. Respondent is a client of PMI. Petitioner is an Hispanic male, who was born in Cuba in 1972. As a permanent resident, Petitioner is entitled to work. Petitioner is able to speak some English but occasionally needs a Spanish interpreter. David Otano was a driver/supervisor for Respondent's predecessor in Panama City, Florida. When Respondent bought the predecessor in 2006, Mr. Otano worked as operations manager for Respondent. Petitioner and Mr. Otano are friends. In February 2008, Mr. Otano recommended that Respondent hire Petitioner as a "slinger." A slinger rides on the back of a garbage truck to assist the driver in collecting garbage. On February 11, 2008, Petitioner filled out an employment application with PMI. At that time, Petitioner signed an acknowledgement that he was a leased employee of PMI who was assigned to work for a work site employer. Among other things, the acknowledgement stated as follows: I acknowledge that I am aware that PMI adheres to a grievance policy and it is the employee's right to file a grievance if he/she feels they have been unfairly treated. I understand that if I do not utilize the grievance procedures, my unemployment benefits may be denied me. PMI's employment application package also includes the following employee's certifications/acknowledgements: I CERTIFY and ACKNOWLEDGE that the following is true and correct: I have read, have been read, or will read IMMEDIATELY upon hire, the Employee's Post-Hire Handbook ("Handbook"). Further, I understand and agree to the provision as stated in the Handbook and within the Post- Hire Handbook, Post-Hire Packet, policy manual and safety manual. * * * I hereby acknowledge that I have received a copy of the PMI Post-Hire Handbook . . . . Petitioner signed the certification/acknowledgement on February 2, 2008. PMI's Post-Hire Handbook contains the company's harassment policy. The policy provides as follows in pertinent part: 3. Any employee who feels victimized by harassment should IMMEDIATELY report it to PMI's Human Resource Department . . . PMI will undertake a careful investigation, which may include interviewing other employees who have knowledge of the alleged incident or similar situations. Your complaint, along with the investigative steps and findings, will be documented in accordance with our dispute resolution procedures. PMI routinely trained Respondent's managers and supervisors about the non-discrimination policy. The instruction included an admonition to make decisions about employees based on their work performance and not because of their ethnicity or any other reason. Respondent and PMI knew that Spanish was Petitioner's first language when he was hired. They also knew Petitioner was originally from Cuba. At times, Petitioner had difficulty communicating with his direct supervisor, Penny Atkins. On those occasions, Ms. Atkins found another Spanish-speaking employee, such as Mr. Otano, to act as a translator and/or interpreter. It was not unusual for Respondent to employ people who spoke very little English. For example, Respondent once hired a Russian who spoke limited English. There were no problems with Petitioner's work performance when he was on a route. However, Petitioner was sent home when he was not dressed properly, such as wearing shorts instead of long pants or not having on work boots. Petitioner lived about two miles from the work site. When he was sent home, Ms. Atkins expected him to come right back to work. Decisions to send Petitioner home due to improper clothing were not based on Petitioner's national origin. Residential slingers usually worked Monday, Tuesday, Thursday, and Friday. Sometimes, Petitioner was sent home when there were too many slingers and not enough routes to run. If possible, such time off would be made up on a Wednesday. Occasionally, instead of sending a slinger home, Ms. Atkins would allow two slingers to ride on the back of one residential truck. At other times, Petitioner was given more work or extra routes to ride when there were not enough slingers. There is no persuasive evidence that Ms. Atkins' scheduling decisions were related to the national origin of any employee. Mr. Otano testified that Ms. Atkins wanted him to fire Petitioner because Petitioner did not speak English. Mr. Otano's testimony in this regard is contrary to more persuasive evidence. In April 2008, Mr. Otano's job description changed. Instead of being operations manager, he became a supervisor on an equal footing with Ms. Atkins. Mr. Otano considered the change a demotion. Even though Mr. Otano was no longer in Petitioner's chain of command, he continually complained to Ms. Atkins that she was not treating Petitioner fairly. Because Mr. Otano and Ms. Atkins argued about Petitioner, Respondent's general manager told Mr. Otano to worry about his own responsibilities, roll- offs and front loads, and to let Ms. Atkins worry about residential. In April 2008, Petitioner's wife had a car accident. Petitioner called Ms. Atkins to inform her that he would not be at work the morning after the accident. Ms. Atkins sent a driver in a truck to pick up Petitioner. Sometime in July 2008, Petitioner complained to Respondent's general manager that Ms. Atkins was discriminating against him. Petitioner understood that his complaint would be investigated. On August 28, 2008, Petitioner suffered an injury to his arm and shoulder while working as a slinger. He was transported to a local emergency room/walk-in medical facility. Respondent immediately reported the accident to PMI who was responsible for handling the workers’ compensation claim. After receiving medical treatment and physical therapy for a period of time, Petitioner returned to work with light- duty work restrictions imposed by his physician. Ms. Atkins told Respondent there was no such work available at the work site and sent him home. A second doctor's note dated September 29, 2008, stated that Petitioner could do no work for three weeks. On or about September 29, 2008, Respondent decided that it would be able to accommodate Petitioner's need for light-duty work with restrictions as required by a doctor's note. Once that decision was made, Chris Traughber, Respondent's safety manager, called PMI. PMI then contacted Petitioner's physician to let him know that Respondent would accommodate any restrictions if Petitioner was released to work. On or about October 2, 2008, PMI received a note from Petitioner's physician. According to the note, Petitioner was released to work with restrictions of no lifting, pushing, or pulling, effective that same day. Petitioner reported to work on October 3, 2008. At that time, Petitioner was taking a prescription drug for pain, Lortab. For light-duty work, Ms. Atkins instructed Petitioner to sit in a chair under a shed in the yard and note the truck numbers and times that each truck entered and left the yard. The job could not have been performed anywhere but outside in the yard near the gate. The trucks usually left in the early morning around 4:30 a.m. Some trucks would return around 8:00 or 9:00 a.m. Others would return at 6:00 p.m. Trucks might come and go from the yard anytime there was a mechanical problem with a truck on a route. The shed provided Petitioner shade and some protection from rain. Respondent created this job for Petitioner in order to return him to work. Ms. Atkins did not tell Petitioner that he could not take breaks or go to the bathroom. The most credible evidence indicates that Petitioner sometimes visited with Natalie Richardson, Respondent's dispatcher, in the air-conditioned dispatch office on his breaks. There are restrooms in the dispatch office and in the mechanic's shop area. There also was a portable toilet close to the shed where Petitioner was stationed. Petitioner's testimony that he urinated in his clothes on September 7, 2008, because it was raining and he was not allowed to go to the bathroom is not credible. Petitioner also took lunch breaks while he was working light duty. On one occasion, Petitioner left for lunch and did not come back to work. On or about October 8, 2008, Petitioner was sitting under the shed at work when he had a seizure or fainting spell that caused him to fall down on the ground and foam at the mouth. An ambulance transported Petitioner to the emergency room of a local hospital. There is no competent medical evidence regarding the incident. A doctor's note dated October 10, 2008, stated that Petitioner could return to light-duty work on October 18, 2008, with restrictions against swimming, driving, or climbing. On or about October 14, 2008, PMI sent a memorandum to Respondent, advising that Petitioner could return to light-duty work on October 18, 2008, with restrictions of no swimming, driving, or climbing. Petitioner returned to work light duty as restricted by his physician. Once again Respondent directed Petitioner to sit under the shed and count trucks. He was able to go to lunch and take breaks as needed. On or about October 13, 2008, Petitioner spoke to Respondent's general manager at the work site. During the conversation, Petitioner complained that Ms. Atkins was harassing him and treating him unfairly. Petitioner was told to go ahead and file a complaint with PMI. Petitioner subsequently filed a complaint with PMI, alleging that Respondent was harassing him and treating him unfairly. That same day, PMI learned that Petitioner had filed an employment discrimination claim with FCHR. Because FCHR was investigating the grievance, PMI did not investigate Petitioner's allegations. In the fall of 2008, Respondent began a reduction-in- force (RIF) process for economic reasons at multiple work sites. On or about November 21, 2008, Petitioner was reassigned to PMI along with over 30 other employees, several of which worked at Petitioner's work site. Respondent's Chief Financial Officer, Bruce Roy, decided which employees would be reassigned to PMI during the RIF. Mr. Roy worked at Respondent's corporate office and did not directly supervise the employees on the list. Petitioner's testimony that he was not aware that he had been reassigned until months later is not persuasive. The record is not clear as to the last day that Petitioner actually worked at the work site. Between October 2, 2008, and June 10, 2009, Respondent terminated/reassigned 99 employees at multiple work site locations. The RIF included men and women of Caucasian, African-American, Hispanic, and Asian ethnicities. There is no persuasive evidence that Respondent targeted Hispanics in deciding which employees to include in the RIF.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of March, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of March, 2010. COPIES FURNISHED: John S. Mead, Esquire Michael WM Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549 Jeffery Daryl Toney, Esquire Law Office of Jeffery D. Toney, Sr. 502 North Main Street Post Office Box 579 Crestview, Florida 32536 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Thee PBA filed it's petition with PERC on April 17, 1975. (Hearing Officer's Exhibit 1). The FOP filed it's petition with PERC on April 28, 1975. (Hearing Officer's Exhibit 5). The hearing in these cases was scheduled by notice dated June 6, 1975. The two cases were consolidated for the purposes of the hearing by agreement of the parties. (Hearing Officer's Exhibit 2, TA 4). The City of Tampa is a Public Employer within the meaning of Florida Statute s447.002(2). (Stipulation TA 5). The Hillsborough County Police Benevolent Association is an Employee Organization within the meaning of Florida Statutes 447.002(10). (Stipulation TA 5). The Florida State Lodge, Fraternal Order of Police is an Employee Organization within the meaning of Florida Statutes 447.002(10). (Stipulation TA 5). The PBA and the FOP have requested recognition as the exclusive bargaining agent of employees described in their respective petitions, and these requests have been denied by the Public Employer. (Stipulation TA 6). There is no contractual bar to the holding of an election in this case. (Stipulation TA 6). There is no bargaining history between the Public Employer and any members of the proposed bargaining units. (Stipulation TA 7). The PBA is properly registered with PERC. (Stipulation TA 7, Hearing Officer's Exhibit 3). The FOP is properly registered with PERC. (Stipulation TA 7, Hearing Officer's Exhibit 7). PERC has previously determined that the PBA filed the Requisite Showing of Interest with it's petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut this administrative determination. PERC has previously determined that the FOP filed the Requisite Showing of Interest with it's petition. (Hearing Officer's Exhibit 8). No evidence was offered at the hearing to rebut this administrative determination. The parties stipulated and agreed that the position of Police Legal Advisor, the Chief of Police, the Assistant Chiefs of Police, or lieutenant colonels, and police majors should be excluded from any collective bargaining unit ultimately certified by PERC. (TA 8 - 10). The City of Tampa Police Department is organized into seven divisions consisting of Police Headquarters, two Uniform Districts, a Detective Division, a Tactical Division, a Services Division and an Administrative Division. Police Headquarters is commanded by the Chief of Police. A total of 12 sworn personnel work at headquarters. These are two lieutenant colonels or deputy police chiefs, an administrative sergeant, two administrative corporals, the Criminal Intelligence Unit, the Internal Affairs Unit, and the Police Legal Officer. The two Uniform Districts are organized in the same manner. Uniform District 1 covers roughly the western geographic half of the city, and Uniform District 2 covers the eastern half of the city. Each uniform district is commanded by a police major. The districts are divided into three shifts, each of which is commanded by a shift commander who holds the rank of police captain. There is a field commander who generally holds the rank of lieutenant and five to seven squads on each shift. The squads are commanded by a police sergeant and consist of one police corporal and nine police officers. Two of the police officers are designated field instructors. There are approximately 210 sworn personnel in each uniform district. The Detective Division is commanded by a police major. The function of the Detective Division is to conduct latent criminal investigations. There are four bureaus in the division. The Homicide Bureau, the Burglary Bureau and the Larceny Bureau are each commanded by a captain, with a sergeant as second in command. The Juvenile Bureau is commanded by a captain with a lieutenant second in command. One sergeant in the Juvenile Bureau commands the Missing Persons, Social Welfare, Police Athletic League, and Community Relations sections. Another sergeant commands the ten detectives who are assigned to the juvenile section. There are 82 sworn personnel in the Detective Division. The Tactical Division is commanded by a police major. It is composed of 3 major subdivisions: the Vice Control Bureau, the Police Air Service, and the Selective Enforcement Unit. The Vice Control Bureau is commanded by a captain with a lieutenant second in command. The Vice Control Bureau is divided into two squads, one responsible for lottery and beverage investigations, and one for narcotics investigations. Each of the squads is commanded by a sergeant. The Police Air Service is commanded by a police flight supervisor who is roughly equivalent in rank to a police captain. The assistant flight supervisor is second in command, and is roughly equivalent in rank to a police sergeant. The Selective Enforcement Unit is commanded by a captain with a lieutenant second in command. There are approximately 83 sworn personnel in the Tactical Division. The Services Division is commanded by a police major. Two bureaus compose the Services Division: the I.D. and Records Bureau and the Communications and Maintenance Bureau. Each bureau is commanded by a captain with a lieutenant as second in command. There are 42 sworn personnel in the Services Division. The Administrative Division is commanded by a major. Two bureaus comprise the division: Personnel and Training, and Budget Research. Each bureau is commanded by a captain. A bureau sergeant and a range sergeant command the two sections of the Personnel and Training Bureau. The Budget and Research Bureau has two sections: Property and Research commanded by a sergeant, and Payroll and Accounting which is staffed entirely by civilians. There are 27 sworn personnel in the Administrative Division. The majors who command the two Uniform Districts, the Detective Division and the Tactical Division, answer directly to the operation's lieutenant colonel, who answers to the Chief of Police. The majors who command the Services Division and the Administrative Division answer to the administrative lieutenant colonel, who answers to the Chief of Police. There are approximately 665 sworn personnel in the City of Tampa Police Department. The Chief of Police is the top management official in the City of Tampa Police Department. His responsibilities include, inter alia, establishing standards of conduct for police officers; supervising preparation of the departmental budget, and administering departmental expenditures in accordance with budget provisions; interpreting departmental rules, regulations, and policies to employees; and supervising the selection and development of new patrolmen. The Chief of Police has ultimate responsibility for hiring, firing, and promoting employees within the Police Department. The Chief conducts staff conferences on an as needed basis. Lieutenant colonels and majors attend these conferences. The staff formulates policy for the Chief's approval. It is anticipated that the staff would formulate collective bargaining procedure in the event that a bargaining unit is established, and will ultimately administer any collective bargaining agreement that is formulated. The parties stipulated and agreed that the Chief of Police should be excluded from any collective bargaining unit ultimately certified PERC. The two lieutenant colonels are also referred to as deputy chiefs of police. The administrative lieutenant colonel supervises the support functions of the department. The operations lieutenant colonel supervises the field activities. The lieutenant colonels make inspections of assigned operations to ascertain level of performance, review employee problems and insure that necessary steps are taken to maintain high morale, receive and dispose of complaints and report thereon to the Police Chief and review expenditures and assist the Chief in preparation of the annual budget estimates. The lieutenant colonels serve on the Police Chief's staff. At the hearing the parties stipulated and agreed that lieutenant colonels should be excluded from any collective bargaining unit ultimately certified by PERC. Police majors command the major divisions of the Police Department other than the Police Headquarters Division. Police majors are commonly referred to as the chief law enforcement officers. The major has the primary responsibility for the planning, coordination, and direction of activities and functions assigned to his division. He has supervisory control and direction of all members and employees assigned to his division. The major is required to make or cause to be made, inspections of all units, personnel, equipment and facilities under his command. The major is required to investigate, or cause to be investigated, any cases of apparent or alleged misconduct of his personnel and to prepare a report for review by the Chief of Police and the lieutenant colonel. The major takes whatever immediate disciplinary action is required. The major is responsible for making personnel assignments within his division. The major is charged with responsibility for preparing an annual budget estimate for his division, and he exercises control over disbursements of budgeted funds within his division. The major is required to report in writing to the Chief of Police any probationary officers who for any reason appear unfit or unqualified for police service, and to make recommendations concerning their continued employment. Majors serve on the Police Chief's staff. At the hearing the parties stipulated and agreed that majors should be excluded from any collective bargaining unit ultimately certified by PERC. Police captains plan, direct and coordinate the activities of a bureau, or are in command of a police shift. The police captain is responsible for directing and training personnel under his command, and assumes responsibility for occurrences on the shift. It is the police captain's duty to assure adequate performance by all assigned personnel. The captain assists in the selection and development of new patrolmen, and participates in the police training program. The captain recommends disciplinary action. He is responsible for the care and maintenance of all equipment, materials and facilities assigned to his command. Captains generally work at Police Headquarters, and have field duties only under unusual circumstances. Police captains can modify deployment of personnel under their command without further authority. Police captains attend the Chief's staff conferences in the absence of a major, or for special reporting purposes. The day-to-day activities undertaken by captains within the Police Department vary according to the particular assignment; however, the captains are interchangeable with one another. Standard Operating procedure Bulletins outlining the particular duties assigned to each police captain have been promulgated. These bulletins accurately describe the duties, responsibilities, and day-to-day activities of each police captain. These bulletins were received into evidence as Public Employer's Exhibits #12, 25, 29, 40, 47, 53, 55, 61, and 65. The Public Employer contends that police captains are managerial employees. The PBA is not seeking to include captains within it's proposed bargaining unit. The FOP is seeking to include police captains in a collective bargaining unit with lieutenants and sergeants. Police lieutenants are frequently referred to as field commanders, or field supervisors. They serve as supervisors in one of the major administrative functional areas. Police lieutenants exercise immediate supervision over uniform sergeants and patrolmen, and are responsible for overseeing activities in the field. A lieutenant in one of the Uniform Districts would supervise from 3 to 6 sergeants, and from 30 to 60 police officers. A police sergeant's reports and recommendations respecting disciplinary action are submitted to the captain through the lieutenant. The lieutenant can make independent recommendations respecting disciplinary action. A police lieutenant would typically spend from 1 to 3 hours weekly on discipline problems. When circumstances such as a large number of calls in a given zone warrant it, a lieutenant can make immediate decisions respecting the deployment of squads. The lieutenant is responsible for coordinating the activities of squads, and generally will make recommendations to the shift commander respecting deployment of personnel. The police lieutenants evaluate police sergeants, but not at regularly scheduled times. Lieutenants can place material in a sergeant's personnel file. Lieutenants wear a different uniform than officers with lower ranks. Lieutenants wear white shirts and blue slacks while other uniform personnel wear blue shirts and blue slacks. Lieutenants serve as captains during the latter's absence. In the Uniform Districts, this regularly occurs at least two days per week. In the absence of both the captain and a major, the lieutenant would serve as district commander. The lieutenant in the Services Division, I.D. and Records Bureau, serves as the bureau chief for an average of 5 to 6 weeks per year. The day-to-day activities of lieutenants will vary depending on the assignment; however, lieutenants are interchangeable with one another. Standard Operating Procedures Bulletins respecting lieutenants assigned to various bureaus and divisions have been promulgated. These bulletins accurately describe the duties, responsibilities, and day-to-day activities of the lieutenants. These bulletins were received into evidence as Public Employer's Exhibits #13, 14, 30, 48, 54, and 56. The Public Employer contends that lieutenants should not be included in a collective bargaining unit with rank and file personnel, but could be included in a unit of supervisory personnel with police sergeants. The PBA does not contend that lieutenants should be included in it's proposed unit. The FOP contends that lieutenants should be included in a unit of supervisory personnel including captains, lieutenants, and sergeants. Police sergeants serve as the immediate supervisors of police corporals, field instructors, officers, and detectives. Sergeants command squads within the department. The rank of sergeant is the first rank which is viewed by the department as an actual promotion. The ranks of corporal, field instructor, detective, and officer are viewed as assignments, although corporals, field instructors and detectives receive more pay than officers. Corporals and field instructors do frequently act as sergeants. Sergeants have close working relationships with the personnel in their squads, but do not perform precisely the same functions. On a typical day the sergeant will call the roll, read directives to the officers, check crime reports, perform additional administrative duties, then go into the field in a patrol car. The sergeant continues to supervise the officers, but he may perform some of the same duties that officers perform. Sergeants make the determination of which personnel within a squad perform which functions. Sergeants spend more time in the field than in their offices, but they answer far fewer calls and make far fewer arrests than do the officers. Sergeants wear a uniform consisting of blue slacks and a blue shirt. This is the same uniform worn by corporals, field instructors, and officers; however, sergeants wear gold badges and hat insignias rather than the silver worn by the lower ranking personnel. In the Detective Bureau sergeants serve as acting captain for approximately two to two and one half months per year. Sergeants occasionally serve as division commander within the detective division. A sergeant in the Detective Division does not investigate offenses. He examines reports of investigations, and if not satisfied instructs the detective as to what additional steps should be pursued. Sergeants regularly evaluate corporals, field instructors, officers, and detectives on forms which have been adopted by the department. The sergeant maintains a pending evaluation file for personnel under his supervision. An evaluation rendered by a sergeant cannot be changed, although the sergeant's recommendations may not be followed. Lieutenants, captains, and majors can make notations on the evaluation, but cannot change it. The sergeant's evaluation is reviewed with the officer. The sergeant and the lieutenant generally confer about the evaluation. The division commander, or major, reviews the evaluations and frequently discusses them with the officers who have been evaluated. Evaluations play some part in determining promotions. Promotions are determined 70 percent on the basis of a civil service test, 10 percent on the basis of seniority, and 20 percent on the basis of findings of an evaluation board appointed by the Chief. Sergeants can serve on the evaluation board, and the sergeant's evaluations are among the items considered by the board. In a sergeant's absence, a corporal would perform the evaluation. Disciplinary action against corporals, field instructors, officers or detectives is initiated by sergeants. The sergeant will make an initial determination as to whether disciplinary action is necessary. The sergeant might frequently counsel the officer rather than initiate disciplinary action. The sergeant will investigate the incidence and ultimately will make recommendations which go into the personnel file, and could be used in consideration of promotion. A sergeant's recommendations respecting discipline are not changed, although they are not necessarily followed. If an officer is tardy in arriving at work, the sergeant can send him home without pay and then initiate disciplinary action. The officer could lose a vacation day and the month's sick day. A sergeant can relieve an officer of duty for performing duties improperly or for being incapable of performing duties without prior authority. The sergeant would then initiate disciplinary action. The sergeants serve as the first step in the department's grievance procedure. If a sergeant does not resolve a grievance within 48 hours of submission, he will forward it up the chain of command. The sergeant's comments in a grievance matter become part of the grievance file. The sergeant's recommendations respecting grievances are not changed although they are not necessarily followed. Granting or denying unscheduled time off is initially the responsibility of the police sergeant. The police sergeant determines when comp time and vacation days can be taken, and this determination is not reviewable unless a grievance is initiated. Extra duty work is work which an officer can perform while off duty for extra pay. The sergeant authorizes or refuses requests for extra duty. Without prior approval, a sergeant can require that officers work overtime. The sergeant makes recommendations respecting which officers in his squad are assigned the designation field instructor. The sergeant's recommendation has always been followed in the recollection of each witness who testified. In a squad within the Uniform Districts, sergeants, corporals, field instructors and one other officer are permitted to use a department car. The sergeant makes the determination of which officer is permitted use of a car. Requests for transfer are submitted to sergeants. The sergeant makes the initial recommendation respecting request for transfer, and his recommendation is generally followed although the request is sent up the chain of command. Sergeants make recommendations respecting discharge and suspension, but they do not make the final decision. The day-to-day activities of a police sergeant will vary depending upon the particular assignment. Standard Operating Procedure Bulletins respecting each assignment which a sergeant might be given have been promulgated. These bulletins accurately describe the duties, responsibilities, and day-to-day activities of the assignments. These bulletins were received in evidence as Public Employer's Exhibits #15, 16, 26, 32, 36, 41, 49, 57, and 62. The Patrol and Traffic Divisions referenced in Public Employer's Exhibit #15 have been merged into the two Uniform Districts since the time that that bulletin was prepared. The sergeant assigned to the personnel and Training Bureau no longer performs the functions set out in paragraph 6 of Public Employer's Exhibit 62. The Public Employer contends that sergeants should not be included in any unit of lower ranking personnel, but could be included within a unit consisting of lieutenants and sergeants. The PBA contends that sergeants should be included within the unit described in it's petition. The FOP contends that sergeants should be included within a unit consisting of captains, lieutenants, and sergeants. The position of police corporal is not considered a permanent assignment. Police corporals serve as acting sergeant in the absence of the police sergeant. Standard Operating Procedures Bulletins respecting various assignments that a corporal might receive in the department have been promulgated. These bulletins accurately describe the duties, responsibilities, and day-to-day activities of police corporals. The bulletins were received in evidence as Public Employer's Exhibits #17, 18, 33, 38, and 50. The Public Employer, the PBA, and the FOP are in agreement that corporals should be included in any non-supervisory collective bargaining unit that might be certified by PERC. A police sergeant is assigned to the position of administrative sergeant. The administrative sergeant answers directly to the Chief of Police. Four police corporals are assigned the position of administrative corporal. One administrative corporal answers directly to the administrative lieutenant colonel, one answers directly to the operations lieutenant colonel, and two answer directly to the two majors assigned to the Uniform Districts. The administrative sergeant and the administrative corporals perform duties assigned by their supervisor. Generally all of the files, information, and correspondence available to the supervisor is available to the administrative sergeant and administrative corporal. This would include personnel files. The administrative sergeant and the administrative corporals occasionally investigate citizen complaints, and perform research respecting proposed changes in procedure. The administrative sergeants and corporals handle escort work, screen personnel coming into their supervisor's office, and receive telephone calls and correspondence. The person presently serving as administrative sergeant has been assigned to that position for some time. The administrative corporals are rotated. It is anticipated by the Chiefs the lieutenant colonels, and the majors, that the administrative sergeants and corporals will not reveal information that is available to them. The Police Air Service is commanded by a police flight supervisor. The police flight supervisor is roughly equivalent in rank to a police captain. The second in command is the assistant flight supervisor. The assistant flight supervisor is roughly equivalent in rank to a police sergeant. Standard Operating Procedure Bulletins respecting the positions of police flight supervisor and assistant police flight supervisor have been promulgated. These bulletins accurately describe the duties, responsibilities, and day-to-day activities of the police flight supervisor and the assistant flight supervisor. These bulletins were received in evidence as Public Employer's Exhibits #43, 44, and 46. The Criminal Intelligence Unit is headed by a police sergeant, who reports directly to the Police Chief. The Internal Affairs Unit is headed by a police lieutenant who answers directly to the Police Chief. The Criminal Intelligence Unit conducts investigations dealing with subversive activities and organized crime. The Internal Affairs Unit conducts investigations involving misconduct on the part of police personnel. When the need arises the personnel in the Criminal Intelligence Unit will assist the Interal Affairs Unit, and vice versa. Information gathered by these units are not distributed to anyone without the consent of the Police Chief. Personnel are assigned to these units by the Chief of Police on a rotating basis with the recommendation of the sergeant or lieutenant. It is probable that any investigations of illegal strike activity would be conducted by one of these units. There are approximately 151 unsworn personnel employed by the City of Tampa Police Department. Neither Employee Organization sought inclusion of unsworn personnel in their proposed bargaining units. The Public Employer agreed that unsworn personnel should not be included in any collective bargaining unit consisting of sworn personnel. Very little testimony was presented at the hearing respecting unsworn personnel. ENTERED this 5th day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
