Findings Of Fact During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41 to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976. On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16). The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows: "The Faculty Council and the President of the College were in full consensus in affirming the following specifics relative to solicitations on the campus: College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified dining areas and during the scheduled lunch hour of any given employee. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, Mr. James Rhoades, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature and notices which are not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed." The guideline is signed by Dr. McCracken followed by the following note: "Although inadvertently overlooked in the discussions with the Faculty Council, it is, of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business." The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows: "Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings." Solicitation is defined in the memorandum in pertinent part as follows: "College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed. College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership." The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated. Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications. The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired. The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3. Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties. At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting. (PERC Exhibit 9). As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA. Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses. The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied. The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting. The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort. The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation. The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.) The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC. In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later. PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation: . . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College." This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process. PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum. PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed by the Respondent did not result in any subversion of the election process. The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate. PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative. PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ." Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election. All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process. As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization. Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations. In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation. In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list within the period set out in the agreement was not the fault of the Respondent. No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
Findings Of Fact The Public Works Department of the City of Margate has fifty-six established permanent positions and three part-time laborer positions. Six positions are unfilled at the present time. The department consist of the following employees: A director, a superintendent, a secretary, two clerk typists, an inventory clerk, a custodian, a foreman for grounds, a foreman for aquatic weed control, a foreman for buildings, a foreman for roads, a chief mechanic, ten equipment operators, two groundskeepers, three chemical applicators, four mechanics, two carpenters, one electrician, a painter, a mason, and twenty laborers (Exhibit 5). Each foreman has responsibility for a certain type of work and has from 8 to 12 employees working in his division. The chief mechanic has eight employees under him who operate on a shift basis in order that vehicle maintenance may be provided around the clock. The foreman and chief mechanic report through the superintendent to the director in a direct line of authority. The inventory clerk reports through the superintendent to the director (Exhibit 5). The Director exercises general supervision over all employees and the direction and administration of the department. Departmental responsibilities include the repair and maintenance of streets and sidewalks, city vehicles, city parks and pest control. Under the direction of the Mayor, the director is responsible for planning and administering the budget for the department, preparation of daily work schedules, preparation and submission of reports, procurement of supplies and materials, engineering and layout work and supervision of the repair and maintenance of property and equipment of the department. He is responsible for the formulation of policy of the department and has the primary role in personnel administration and employee relations for the department. Based upon interviews conducted by the superintendent, the director provides recommendations to the mayor as to the hiring and firing of personnel. He is empowered to take disciplinary action against employees. He holds weekly "foremens" meetings attended by himself, the superintendent, the inventory clerk, the four foremen, and the chief mechanic. At these meetings, various ideas are discussed and input is received from individuals attending the meeting as to their area of interest. It is primarily a meeting to discuss previous problems and solutions thereto and does not usually result in decisions involving policy affecting the entire department (Exhibit 6). The superintendent is the second in command in the department and serves as the acting director in the absence of the director. He exercises general supervision over all other personnel of the department and directs the daily activities of the department. He serves as the administrative assistant to the director and in this capacity is, in charge of personnel administration. He makes effective recommendations to the director concerning personnel and disciplinary matters, provides meaningful input into budget and policy formulation and reasonably can be expected to actively assist the director in the preparation for and conduct of collectively bargaining negotiations or to have a major role in the administration of any agreement resulting therefrom (Exhibit 7). The secretary is the personal secretary to the director who performs normal secretarial duties and also has access, to all confidential personnel files of the department. She takes and transcribes dictation of meetings at which confidential matters are discussed and would perform in a like manner to assist the director in confidential matters involving collective bargaining (Exhibit 8) One of the clerk-typists, similarly to the secretary, also has complete access to all budget policy and confidential personnel files in the same manner and virtually to the same extent as the secretary. The other clerk-typist position is under the Foreman for aquatic weed control and does not involve access to confidential information. The equipment operators, groundskeepers, chemical applicators, masons, carpenters, painters, electricians, and mechanics perform functions as are indicated by their titles. Groundskeepers normally are in charge of two or three men crews to cut and trim grassy areas and perform other duties in beautification of the city. They work alongside the laborers and are interchangeable with them. They exercise no real supervisory functions. In like manner, the equipment operators who drive the tractors, trucks and other mechanical equipment of the department are interchangeable with groundskeepers and perform basically the same functions. Chemical applicators mix and apply chemicals to canals and other bodies of water to destroy noxious weeds. They do not possess any special degree of expertise and merely carry out directions of their supervising foreman. Skilled personnel, such as masons, carpenters, painters, electricians, and mechanics perform maintenance work as required and do not exercise supervisory functions. The custodian is responsible for cleaning and maintenance duties at the city hall. Laborers perform unskilled labor on the grounds, roads, and buildings under the supervision of the foremen. The four foremen are each in charge of a division in the department. These divisions are grounds, roads, buildings and aquatic weed control. The first three are described as "area" foreman and basically perform interchangeable functions that generally include the maintenance and repair of all city-owned areas and properties including grass cutting, tree trimming, patching pot holes, painting, and major and minor repairs. They are immediately responsible to the superintendent and exercise general supervision over the employees assigned to their divisions. They attend weekly "foremens" meetings with the director as described heretofore and provide input at these meetings concerning their area of work. They directly assign jobs to the men under them and follow-up to insure that they have performed the task satisfactorily. They maintain hourly worksheets on the men and exercise first-line grievance functions. They resolve minor complaints independently, but can only make recommendations to the superintendent concerning major complaints and as to disciplinary sanctions. They have no effective role as to hiring or firing of personnel. They divide their employees into crews to cover the city in their particular area of responsibility. Although a crew in the grounds department, for example, would normally include the groundskeeper and a laborer or two laborers, the foreman determines the size of the crews and can use them in any manner he sees fit to accomplish the overall mission of the division. He prepares an evaluation on the performance of each employee every six months. Although the foremen work alongside of their men and were considered "working foremen" in the past, about six months ago it was determined that they should devote more time to supervisory responsibilities and do less actual physical labor. At this time, they still on occasion decide on their own to help out the workers under them. The foremen of the aquatic weed control division exercises somewhat more specialized functions than the other foremen in that he is required to be familiar with the mixing and dispensing of herbicides, pesticides, and algaecides for eradication of pests and aquatic plants in canals and waterways. Other than this specialized knowledge, he basically exercises the same responsibilities as the other foremen (Exhibits 8, 9, and 10). The chief mechanic is a "working" supervisor who oversees the servicing, overhauling, repairing, and preventive maintenance of the equipment, heavy vehicles and passenger cars of the city. He checks major equipment in the field to ascertain if repairs should be made there or in the shop, makes decisions as to what repairs should be done and where, decides what parts to replace, what parts to purchase, and those that should be built in the shop. He supervises the maintenance of various records pertaining to the vehicles and their use, replacement of tires and parts, and renders reports. He approves requisitions for parts and materials not carried in stock and ensures that work is covered by shop work orders. He plans the daily work program of his division, can adjust and readjust schedules to meet fluctuations and maintenance needs of equipment and availability of required personnel, and authorizes overtime. He administers his share of the department budget and sees that it is not exceeded. He has blanket authority to buy required vehicle parts and tools. He assigns work to three shifts in his division to maintain 24 hour repair capability. He is also responsible for the security of the Public Works building where offices are located and vehicles and equipment are kept. His supervisory functions are similar to those of the foremen with respect to assignment of work, responsibilities for accomplishment of his mission, input at weekly meetings concerning his area of responsibility and the like (Exhibit 12). The inventory clerk is responsible for dispensing all usable supplies on a day-to-day basis and maintains an inventory of all departmental supplies. He is responsible for the security of all items including vehicles and equipment. He receives, inspects and approves or disapproves all municipal deliveries. He advises the superintendent and director as to what materials have been used, how best the expenditure of supplies can be reduced, and maintains control records on time, materials, and labor for various jobs performed by the department. He makes an independent determination as to whether materials are available to other departments or if the request is unreasonable and then makes recommendations to the superintendent as to whether such request should be honored. He contributes suggestions for the conservation of supplies which normally are acted upon by higher authority. He exercises no supervisory functions and has no employees under him (Exhibit 11).
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, 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 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based on a letter dated November 4, AFSCME requested that the School Board of Orange County, Florida, voluntarily recognize it as the sole and exclusive collective bargaining agent for employees of the School Board in a proposed unit of "non-instructional" personnel. AFSCME also expressed its desire to engage "possible neutral third parties" to verify the authenticity of certain authorization cards it possessed. (Employer's Exhibit No. 1) On November 10, Messr. James E. Carroll, Assistant to the Superintendent for Employee Relations, advised AFSCME's Assistant Area Director, Messr. David McGhee, by letter dated November 10, that their formal request had been received and would be placed on the school board agenda on November 14, if, pursuant to board policy, written notification was received within 24 hours prior to preparation of the agenda for the school board's meeting. Employer's Exhibit No. 2) by Letter dated November 14, Messr. McGhee was advised by Dr. L. Linton Deck, Jr., Superintendent, that AFSCME desired to appear before the board at its next regularly scheduled meeting for November 22. (Employer's Exhibit No. 3). By letter dated November 22, the Intervenors by their international representative and international special organizer respectively, A. Gross and Charles Loughran, advised Assistant Superintendent Carroll that the Intervenors were engaging in organizational activities among the board's employees and "[would] be petitioning the board for voluntary recognition in the very near future for an election to be conducted by the Public Employees Relation Commission." Messr. Carroll did not respond to such meeting since, in his opinion, he was of the opinion that the impetus in triggering such request rests with the Intervenors and no further responses were received from the Intervenors' representatives until on or about January 3, as stated above. By letter dated December 29, Messr. Deck sent a memorandum noticing the instant hearing to all principals and work location supervisors to call this matter to the attention of all classified employees at their work locations and for posting in appropriate places. On that same date, Messr. Carroll advised the Intervenors representatives that the school board had requested a hearing under the Administrative Procedure Act for the purpose of determining the appropriate bargaining unit and whether AFSCME had been designated as the exclusive bargaining agent for all classified employees within the appropriate bargaining unit. Attached to such letter was a Notice of Hearing issued by the undersigned dated December 21. (Employer's Exhibit No. 6) On approximately two occasions, Messrs. McGhee and Carroll, representing AFSCME and the Public Employer respectively, met informally to determine whether or not the Public Employer would extend exclusive bargaining representative status to a petitioned for group of classified employees on a voluntary basis. These efforts were unavailing inasmuch as the parties were unable to come to terms on a unit description mutually satisfactory. Thereafter, counsel for the Public Employer advised the board that the more orderly procedure in reaching its decision would be to utilize the procedures set forth in Section 120.50(7)(1) (Employer's Composite Exhibit No. 7) Based on this recommendation from the board's counsel, the petition was forwarded to this Division requesting that a Hearing Officer be assigned to conduct a Section 120.57(1) hearing. At the hearing, AFSCME and the Public Employer jointly stipulated that the appropriate unit of classified employees of the School Board of Orange County, Florida, for purposes of collective bargaining is as follows: All active classified personnel who are pay- types 15 (teacher aides, permanent substitutes, library clerks, office clerks), 17 (school lunchroom assistants), 19 (teacher assistants, instructional clerks, and nurses), 22 (twelve month, eight hour employees), 30 (bus drivers), 40 (bus monitors), and 71 (daily teacher aides in non-public schools); and who are not pay grades 16A, 21A, 13B, 12B, 22D, 14F, 13D, 13C, 14J, 14K, 3D, 27A, 51A, 75A, and 14B; and who do not work at the following work locations: 7300 (Associate Superintendent for Instructional Services), 8200 (Assistant Superintendent for management Services), 8110 (Comptroller), 6600 (Associate Superintendent for Personnel Management), 8205 (Business Word Processing Center Number 4), 8206 (Personnel Word Processing Center Number 5), 8202 (Instructional Word Processing), 8203 (Administrative Word Processing Center Number 2) 8204 (Delaney Word Processing Canter Number 3), 8210 (data Center Operations), 6611 (Instructional Personnel), 6612 (Classified Personnel) 8132 (Payroll Accounting), 8130 (Director of Accounting), 9001 (District Superintendent), 8120 (Food Service Administration), 8131 (General Accounting), 8220 (Research), and 7555 (CETA Administration). All other positions are excluded. (Joint Exhibit No. 1) There is no history of collective bargaining for the subject employees. The evidence reveals that within the stipulated unit, there are approximately 3,054 employees. Excluded from the list of classified employees are approximately 106 cafeteria managers, 2 registered nurses, 29 confidential employees, and approximately 516 regular part-time employees. The evidence reveals that the parties (AFSCME and the Public Employer) stipulated and further agreed to exclude the cafeteria managers based on uncontradicted evidence that cafeteria managers, as part of the their job duties, are called upon to make individual employee assessments, independent decisions and routinely make effective recommendations respecting the hiring and discharge of cafeteria employees. AFSCME and the Public Employer also jointly agreed to exclude approximately 29 "confidential" employees who are assigned to word processing centers and who, during the course of their employment, are privy to confidential employment information respecting other employees. 2/ Also excluded from the stipulated unit were all employees who worked four hours or less daily. The classified employees form the residual group of employees who are non-instructional, administrative, or technical. These part- time employees are largely comprised of administrative secretarial employees who work for associate superintendents, deputy superintendents, assistant superintendents, and other confidential employees who, as stated above, have access to confidential information. PLACEMENT OF PART-TIME EMPLOYEES In resolving unit placement questions, employees' status and tenure are major considerations. The evidence herein reveals that the part-time employees here work within the same unit as those included employees on a regular basis. They therefore have a substantial and continuing interest in the wages, hours and working conditions of full-time unit employees. Farmers Insurance Group, et al, 143 NLRB 240, 244 - 245. In this regard, they like the included employees enjoy the same rate of pay and fringe benefits. Based on the regularity of their employment and the number of hours worked, they cannot seriously be considered part of a "temporary, part-time or casual work force". Fresno Auto Auction, Inc., 167 NLRB 878. And the mere fact that they are called part-time employees does not alter their status as a cohesive group of individuals with a strong mutual interest in their working conditions which, as here, are largely determined by those employees included within the unit. See e.g., Henry Lee Company, 194 NLRB 109. For all these reasons, including the regularity and continuity of employment, the similarity of duties and functions, wages, working conditions and supervision, there is no discernible basis in this record to exclude the part-time employees from the unit. I shall therefore recommend that they be included. AUTHENTICATION OF THE AUTHORIZATION CARDS A local private investigating firm, Brewer and Associates, was commissioned to assist a local attorney, Stephen Weinstein, to authenticate the authorization cards. Attorney Weinstein credibly testified that he was given the authorization cards from AFSCME on January 5, 1978, along with a list of employees which was cross-checked by a list supplied by the list entitled "Recommended Appropriate Bargaining Unit." (See Employer's Exhibit No. 9). Attorney Weinstein and Messrs. Jerry Brewer and Jerry Boltin, employees of Brewer and Associates, cross-checked the lists based on a random sampling of authorization cards from a total of 1,648 authorization cards supplied to attorney Weinstein by AFSCME. 3/ Attorney Weinstein and his associates noted no irregularities or discrepancies in the authorization cards given them by AFSCME which were checked against the employee signatures on file in the public employer's records. These records from which the signatures were taken included employment applications, insurance and payroll deduction forms. The evidence reveals that the expense connected with the authentication of the cards was paid independently by AFSCME. No evidence of any union bias or other interestedness was alleged to have existed on the part of the individuals engaged to authenticate the cards. A copy of the card was introduced which designates AFSCME as the executor's collective bargaining representative in all matters pertaining to rates of pay, hours, and other terms and conditions of employment. (AFSCME Exhibit #1). No evidence was introduced tending to show that any other cards were utilized by AFSCME in its organizational efforts.
Recommendation Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the Public Employer submit a list of names and addresses of all of its regular part-time employees which comprised the 516 employees which were excluded from the joint stipulated recommended appropriate bargaining unit and allow AFSCME fourteen(14) days after receipt of such list to demonstrate its majority status. It is recommended that such majority status be demonstrated in the same manner as was demonstrated in the instant proceeding and that AFSCME and the Public Employer jointly engage a neutral third party to authenticate AFSCME's assertion of majority status within the time frame allotted. Finally, upon proof of its majority status in the appropriate unit, as modified herein, it is recommended that the Public Employer voluntarily recognize AFSCME as the exclusive collective bargaining representative for such employees based on the foregoing findings, conclusions and recommendations. RECOMMENDED this 6th day of March, 19788, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the relevant oral and documentary evidence, the following facts are found with regard to the issues in dispute. Overall organization. Exhibit No. 5, prepared by the City Manager, is an organizational chart of employees of the City. Excluding the first block of employees under the city commission, the office manager, library director, the police department chief and uniformed officers, the fire department (which consists of volunteers only) and the superintendents of the remaining five departments, there are approximately fifty-two employees of the City. The City Manager is the chief administrative officer of the City, and all employees are ultimately responsible to him. There is a uniform pay grade classification plan throughout the City and all full time employees work a forty hour week, though their actual working schedules may differ. There are two pay schedules. Most employees are paid weekly, though some, including the office manager department, are paid biweekly. Employees receive their pay checks either at the City Hall or the city warehouse, whichever is closer to their place of employment. If an employee desires to wear a uniform, the City pays one-half of the cost of such uniform. Office manager department staff. There are nine staff members of the office manager department who are hired and fired by the office manager. The basic function of this department is finance and accounting, and the employees do basically clerical type work.. Typical responsibilities of this department include preparation of the payroll, collection of utility bills, payment of bills for purchase and supplies, and record-keeping. Eight staff members work in City Hall and one works at the city warehouse. These employees share the same hours and fringe benefits -- vacations, sick leave policy, group hospitalization, retirement plan -- as other city employees, and are paid every other week. The office manager herself does the City Manager's confidential work. Another secretary of this department devotes approximately twenty-five percent of her time doing typing or other work for the City Manager. No college degree or other specialized training is required for a position within the office manager department. All office manager staff employees have access to city personnel records, as does everyone else who inquires. It was not known whether or not such employees would have access to labor relations policy data, inasmuch as the City has no prior bargaining history. Library assistants. There are two library assistants, one full time and one part time, under the direct supervision of the library director. The full time assistant works a forty hour week and participates in the same benefits as other full time city employees. The library is open a half day on Saturday. The old library building has been torn down and a new library building is planned. During the interim, one assistant is detailed to do clerical work in the city warehouse. The City Manager testified that there is presently no job description for library assistants, but that there is no educational or previous training requirement for the positions. Their duties include assisting the public and the library director. It was not known whether they actually and independently participated in the ordering of new books for the library. Radio dispatchers. There are six radio dispatchers who are housed in the police station and are under the direct supervision of the Chief of Police, who hires, fires and disciplines them. These employees share the same benefits and work the same number of hours as other city employees. They rotate their schedules so that one dispatcher is always on duty, twenty-four hours a day, seven days a week. All emergency calls, including police, fire and general government utility calls, are relayed through a radio dispatcher. Standard operating procedures are furnished them by the superintendents of the various departments. Dispatchers do not wear uniforms and do not carry weapons. There is no formal training requirement to qualify as a dispatcher, though apparently they must be federally registered in much the same manner as a CB operator. There is no ranking system among them and no head or chief dispatcher. While there is a jail at the police station, dispatchers have no contact with or authority over prisoners housed therein. The City Manager knew of no dispatcher duties other than receiving and relaying emergency calls. In accordance with F.S. s447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Done and entered this 2nd day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida Mr. Stanley E. Marable Frank and Meyer, P.A. 500 Flagship Bank Building Tampa, Florida 33602 Mr. Harrison C. Thompson, Jr. Shackleford, Farrior, Stallings & Evans, P.A. P.O. Box 3324 Tampa, Florida 33601
The Issue Whether the Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes, in dismissing the Petitioner.
Findings Of Fact The Petitioner, Lynda D. Wynn, is an African-American female who was hired by the Office of Greenways and Trails (OGT), a division of the Department of Environmental Protection (DEP), on September 21, 2001, as an Other Personnel Services (OPS) employee. She was paid $14.00 per hour. OPS employees do not enjoy career service protection, and may be discharged without cause except that they cannot be discharged for a reason contrary to law. The Petitioner had been employed by the DEP in another capacity in another division of the agency prior to her employment with OGT's public information office. She was discharged from the first position and re-employed in the Public Information Office (PIO) when Dianne Redd, the head of the PIO was out on leave. Redd had no input into the hiring of the Petitioner, and returned to find Wynn on her staff. The Petitioner was employed as a Public Information Specialist. No evidence was received regarding the qualifications for this position. The Petitioner's previous position was as a planner and her education and experience is principally in this area. Upon reporting for work, the Petitioner was assigned with other employees of OGT to clean up an area in the rear of the agency's headquarters' building to create a walking trail. This was outside, physical labor clearing brush, spreading wood chips, and preparing the trail. Many of the people in the office avoiding working on this project, but the Petitioner worked on the project frequently in order to meet the dedication deadline. This was her welcome to OGT's PIO. In addition to working on the project, she was tasked to solicit donations for a luncheon to accompany the opening to coincide with Green Way's Month in October. Leading up the various activities for Greenway's Month, there were staff meetings. At one of these staff meetings, the head of the public information office, Dianne Redd, asked the Petitioner to pick a historic character, research the person's life, and role play that person in preparation for opening of the Palatka Visitor's Center to "see how you'll fit in." The Petitioner choose Mary McLeod Bethune as her character. Bethune was famous African-American educator who was the first African-American woman to hold high office in the Federal government. She is famous in Florida as the founder of Bethune-Cookman College. The Petitioner, along with others in the office, prepared displays and characters in keeping with historic characters like folk-healers or herbalists and historic personalities like Bethune. The Petitioner and others created displays and exhibits and developed costumes appropriate to their characters for their participation in the opening of the OGT office in Palatka. A master plan for the location of various exhibits was prepared by Shelton Ansley, who did not go to Palatka. Ms. Redd, the Petitioner, and many of the others in the office made the trip to Palatka to participate in the opening of the visitor's center. The group broke in two, and the Petitioner, Mary Spivey, and Susan Walker stayed at the visitor's center and Redd and some other employees went out to find some additional props for the opening which featured women in Florida history. The master plan prepared by Ansley was not provided to the Petitioner and the others setting up the exhibits. They did not receive specific guidance from Redd on how to set up their displays, and they set them up inside the visitor's center. By the time Redd returned, their displays were nearly completely set up. Redd had determined previously, but had not communicated to the Petitioner and Spivey that the space inside the center was being reserved for local exhibitors. There is conflicting testimony about Redd's reaction; however, she had her employees strike their displays and prepare to move them outside. Regardless of whether she was angry with the Petitioner and Spivey, Redd was not happy. Spivey, who portrayed an herbalist, pointed out that her exhibit contained leaves and light materials that were subject to being blown away outside. Redd retained Spivey's exhibit inside. The Petitioner was asked to move her exhibit to an area adjacent to a rustic, board and batten structure housing a large pump. This structure was the approximate size of a sharecropper's cabin. The Petitioner pointed out to Redd that putting the Bethune exhibit next to such a structure would send the wrong message about Bethune who was the antithesis of a sharecropper. The Petitioner told Redd that she rather not to display the exhibit than display it next to the "outhouse."1/ Redd permitted the display to be left in the van and not displayed; however, the local exhibitors did not materialize and the display was set up later inside the visitor's center. It is unclear who decided to display the exhibit and who set it up; however, it was setup inside the visitor's center. Sherry Graves portrayed Marjorie Kinnan Rawlings, and prepared her costume; however, she did not complete her display. Julie Roberts elected to portray a farmer's daughter, and developed a costume which she wore to the event. No disciplinary action was taken regarding Graves' failure to complete her project. Some items were collected on the porch to provide the rustic farm atmosphere, but it was not developed whether Robert's was expected to do more and failed to. The opening concluded on Saturday evening, and everyone loaded the vehicles to return to Tallahassee. As everyone was leaving, Redd thanked them for their efforts and told them that they could take a half-day off on Monday, but to call in and advise the office whether they would be taking the morning or afternoon. It is unclear whether this instruction was delivered directly to the Petitioner by Redd, or through one of the other employees. The Petitioner called in on the following Monday. There is a conflict about the message that was left by the Petitioner on Redd's answering machine. It was erased. The Petitioner stated that she said that she said she would not be in and if the office needed her, they could reach her at her home. Redd stated the Petitioner called her and left a message that she would not be in that Monday morning, but would call back. The Petitioner did not attend work on Monday. OPS employees have regularly assigned hours of work, and do not earn leave. However, they do earn overtime, and the time worked on Saturday constituted overtime. Agencies develop internal policies for the payment of overtime, but generally employees must make prior arrangements to take time off from work. Redd testified regarding the Petitioner's termination. Redd terminated the Petitioner because she took all of Monday off when Redd only authorized employees to take off half-a-day. Redd had had previous problems with the Petitioner and her attendance. The Petitioner claimed, among other things, that others in the office messed around with her "in and out" sign. An Employment Termination Critique was completed by Redd on the Petitioner. This form reflects that the Petitioner failed to accomplish assignments, that her work product was below expectations, that her work was not accurate, and that she failed to report for work regularly and punctually. The Petitioner did not agree with the assessment as reflected in her comments on the form. Redd pointed to the Petitioner's failure to type labels, tables, and invitations as examples of tasks that took too long to complete. Redd also stated that there were problems with the Petitioner failing to sign out three or four times. Redd indicated that Petitioner's display on Bethune was not very good. There was no specifics of the Petitioner's failure to be accurate, and no documentation of counseling on these failings. The Petitioner was employed by the PIO for between five and six weeks. During the first couple of weeks, as stated above, the Petitioner was engaged in building the office trail. The Petitioner was the only African-American employee of the six persons employed in the PIO. There are only three other African-American employees employed state-wide by the office of OGT. There are thirty-five employees in the Tallahassee office of OGT. African-Americans are not proportionally represented in the OGT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner's Claim for Relief be dismissed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 11th day of December, 2003.
Findings Of Fact The UBC filed it's petition with PERC on April 16, 1975. (Hearing Officer's Exhibit #1). The HMREBU filed it's petition with PERC on May 7, 1975. (Hearing Officer's Exhibit #9). The Laborers filed it's petition with PERC on June 16, 1975. (Hearing Officer's Exhibit #5). The hearing in these cases was scheduled by separate notices dated July 9, 1975. (Hearing Officer's Exhibits #2, 6, and 10). The Escambia County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (See: transcript of proceedings 1/ at page 7). The UBC, the HMREBU, and the Laborers are Employee Organizations within the meaning of Florida Statutes, Section 447.002(10). (Stipulation TR 8). There is no contractural bar to holding representation elections in these cases. (Stipulation, TR 8, 9). There is no relevant collective bargaining history that affects these cases. (Stipulation, TR 9). The UBC, the HMREBU, and the Laborers are properly registered with PERC. (Hearing Officer's Exhibits #3, 7 and 11; Stipulation TR 10). PERC has previously determined that the UBC, the HMREBU, and the Laborers have filed the requisite showing of interest with their petitions. (Hearing Officer's Exhibits #4, 8, and 12). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties have stipulated that in the event PERC certifies a collective bargaining unit substantially similar to the one proposed by the Laborers, the positions of Transportation Director, Route Supervisor, Garage Foreman, and Assistant Garage Foreman should be excluded from the unit. (Stipulation TR 205, 206). In the event that a collective bargaining unit substantially similar to the one proposed by HMREBU is certified by PERC, the parties have stipulated that the Director of School Food Service, the Assistant Director, and the Lunchroom Managers should be excluded from the unit. (Stipulation TR 208, 209). In the event that a collective bargaining unit substantially similar to the one proposed by the UBC is certified by PERC, the parties have stipulated that the Supervisory Custodian, the Custodian in Charge, and the Custodial Foreman should be included within the unit. (Stipulation TR 210, 211). The Public Employee Relations Commission has previously certified a collective bargaining unit consisting of instructional personnel employed by the School Board of Escambia County. Each of the proposed units described in the petitions of the Employee Organizations in these cases include only non- instructional personnel. There are approximately 1740 persons employed by the Public Employer in non-instructional positions. Approximately 300 of these employees would be included within the unit proposed by the UBC. Approximately 230 would be within the unit proposed by HMREBU. Approximately 190 would be within the unit proposed by the Laborers. A civil service system, created by a special act of the legislature, has been in operation in Escambia County since 1953. See: Laws of Florida, Chapter 74-480 (1974). A Civil Service Board maintains a classification and salary plan, provides a central pool for testing and classifying new employees, and participates in an annual review of the salaries of classified employees. The Civil Service Board provides it's services for tide Public Employer in this case, and for other governmental entities within Escambia County, including the county. The classification system utilized by the School Board is the same as that utilized by the county. An employee of the School Board with a given classification would have the same qualifications, would perform approximately the same duties, and would receive the same salary and benefits as an employee of the county with the same classification. There are frequent transfers of employees covered by the civil service system among the governmental entities in Escambia County. All of the non-instructional personnel employed by the Public Employer, including all of the employees within the proposed collective bargaining units, are covered by the civil service system. All of these employees have salaries as set out in the civil service salary plan. The same sick leave and vacation leave policy, grievance procedure, disciplinary procedure, promotional process, insurance benefits, and retirement plan apply to all of these employees. It would be more time consuming for the Public Employer to engage in collective bargaining with several collective bargaining units than with one unit. During the week prior to the hearing in these cases the Public Employer's negotiating team spent four days in negotiations with the bargaining representatives of instructional personnel. Assuming that the bargaining representatives of several units successfully negotiated dues deductions, it is proper to assume that the existence of several units would place added bookkeeping chores upon the Public Employer. The three units for which certification is being sought include less than 40 percent of the non- instructional personnel employed by the Public Employer. Employees within the three proposed bargaining units are not interchangeable with one another. Custodial employees are not interchangeable with lunchroom employees, nor with bus drivers and mechanics, and so on. Employees within the three units have very little job contact with one another. Custodians perform limited functions in the lunchroom; however, custodians and lunchroom employees are not likely to have any contact with bus drivers or mechanics. Bus drivers and mechanics spend the greater portion of their work day off of the school campuses as distinguished from custodians and lunchroom employees. Custodians and lunchroom employees are supervised by the school principals. Bus drivers and mechanics are supervised by the Board's Director of Transportation, except that bus drivers are supervised by the school principals during the times they are carrying children to and from the schools. The work performed by personnel in the proposed units is very different, and lateral transfers between the proposed units are not likely to ever occur. While there is no collective bargaining history indicating a pattern of dealing with the proposed units separately, there has been a school food services association which performs social functions for food service employees. ENTERED this 6 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
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
