The Issue Whether Petitioner is entitled to participate in an early retirement incentive program established by an amendment to the 1991-1994 Collective Bargaining Agreement between the School Board of Pinellas County and the Pinellas Classroom Teachers Association.
Findings Of Fact Petitioner, Barbara Bates, is presently employed by the Pinellas County School Board, serving as a guidance counselor at the 16th Street Middle School. The Pinellas Classroom Teachers Association (P.C.T.A.) is the exclusive bargaining agent for all teachers employed by the School Board of Pinellas County (Board). The term "teachers", as used in that context, includes full time guidance counselors. At all times relevant, there was in force a collective bargaining agreement between the Board and the P.C.T.A., effective 1991-1994. During the 1991-92 school year, the Board experienced severe losses in revenue, and had to prepare for substantial budget cut backs in 1992/93 fiscal/school year. Among the measures taken by the Board to reduce expenditures was a reduction in the number of instructional personnel. To keep the number of instructional personnel involuntarily terminated as small as possible, the P.C.T.A. and the Board negotiated modifications to the existing collective bargaining agreement between them, providing for extended leave options, shared teaching responsibilities and early retirement incentives. The modifications stated in pertinent part: "ARTICLE 1 These proposed amendments to the agreement are in effect for 1992-93 only and cannot be extended without the mutual agreement of the parties . . . ARTICLE XX - TERMINAL PAY The following language will be implemented as part of the current language in Article XX, Section B: "Employees who are eligible for and accept regular retirement at thirty (30) years of creditable FRS service . . . shall receive a cash incentive of $8,500 payable upon retirement . . . IN WITNESS WHEREOF the aforesaid parties have hereunto executed this Agreement on the 11th day of March, 1992, to be effective on the 1st day of July 1992." Said language was ratified by the Board on March 11, 1992, and was subsequently ratified by a vote of the membership of the P.C.T.A. The amount of $8,500, as a retirement incentive, was arrived at as the average amount the Board would have had to pay in unemployment benefits to laid off teachers, and it was determined that it would be preferable to pay that amount to an employee to obtain voluntary retirement rather than to pay it to a former employee who had been involuntarily laid off, or terminated due to budget cuts. It was the understanding of the parties (the Board and P.C.T.A.), that in order to achieve that desired result, the individuals exercising the retirement option would have to be retired by the start of the school year, 1992/93, or else the position occupied by the retiring teacher could not be filled with a teacher who would otherwise have been terminated or laid off. The approved policy manual of the Board provides that the school year calendar begins July 1 of one year and ends on June 30 of the following year. Barbara Bates is a guidance counselor employed full time by the Board, and is thus a member of the bargaining unit represented by the P.C.T.A. Barbara Bates does not currently have thirty (30) years of creditable service in the Florida Retirement System (FRS), but will attain such on January 29, 1993. On April 20, 1992, Barbara Bates submitted an application to retire to be effective when she did attain thirty years of creditable service, and to receive the $8,500 cash incentive. Petitioner's application to retire and receive the incentive was submitted in a timely fashion. Initially, no individual other than Barbara Bates employed by the Board who would have attained thirty (30) years of creditable service after the start of the 1992/93 school year actually applied for the $8,500 retirement incentive; however, a number of individuals inquired as to the possibility of retiring shortly after the start of the 1992/93 school year. In order to clarify the intent of the March 11, 1992 amendment to the collective bargaining agreement, and to increase the number of individuals for whom the $8,500 incentive would be available, the Board and the P.C.T.A. approved another amendment to the collective bargaining agreement which stated in part: ". . . 6. The parties to the agreement concur that the intent of the retirement incentive program is to create vacancies to avoid laying off teachers in August of 1992. To this end, eligibility for participation in this incentive was limited to those educators who met eligible requirements on or before June 30, 1992. Subsequent to the receipt of applications, a number of exceptions were requested by those who were close to the June 30 deadline. In an effort to accommodate these requests and still satisfy the intent of the parties to create vacancies prior to the opening of school in the fall, the parties mutually agreed that the following exceptions will be allowed to the original requirement of thirty years service or ten years of service and age 62 prior to June 30, 1992: Employees who are not yet 62, but are willing to accept the State imposed penalty of 5/12ths of 1% per month, provided their date of retirement is on or before June 30, 1992, or in the case of 235 day contract teachers the last day of their July, 1992 quinmester. Employees on 235 day contracts who wish to work until the end of the quinmester in July, and who meet eligibility criteria prior to the end of that quin. Employees who become qualified during the summer of 1992 or prior to November 1, who are willing to accept alternative assignments, and who are approved by the Superintendent or his designees and the president of the association or his designee, provided that the retirement date will be the earliest date upon which the employee satisfies the established eligibility, requirements, such dates not to extend beyond November 1, 1992."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application to participate in the early retirement incentive bonus program for the school year 1992 should be DENIED. DONE and ENTERED this 24th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,11,12,13 Rejected: As against the greater weight of evidence: paragraphs 9,10,14 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1-17 COPIES FURNISHED: Louis Kwall, Esquire GROSS & KWALL 133 North Fort Harrison Avenue Clearwater, Florida 34615 Bruce P. Taylor, Esquire Pinellas County School Board Largo Administration Building 301 Fourth Street, S.W. Post Office Box 2942 Largo, Florida 34649 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C. 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinsley, Superintendent Pinellas County School Board P.O. Box 4688 Clearwater, Florida 33518
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 Respondent, Verdyce Clarke (Clarke), was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission (Commission) on October 18, 1974, and was issued certification number 02-12405. At all times material hereto, Clarke was employed as a police officer by the City of Miami, Florida. On February 10, 1988, Clarke, at the request of her employer, presented herself for her annual physical. Consistent with the collective bargaining agreement existent between her union and employer, such physical included the taking of a urine sample and analysis of that sample for the presence of controlled substances. In this instance, the sample taken from Clarke proved positive for the presence of cocaine, a controlled substance. Again, consistent with the collective bargaining agreement, Clarke was offered the opportunity on February 10, 1988, to provide a second urine sample for substance abuse screening. Clarke elected to provide the second sample and upon analysis it likewise proved positive for the presence of cocaine. The quantity of cocaine detected in Clarke's system on February 10, 1988, was so extreme as to suggest recent recreational use or severe addiction. At hearing, no appearance was entered on behalf of Clarke, and no proof was offered that the subject drug was possessed or administered under the authority of a prescription issue by a physician or that its presence could otherwise be lawfully explained.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking the certification of respondent, Verdyce Clarke. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of March, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William C. Robinson, Esquire 28 West Flagler Street Suite 220 Roberts Building Miami, Florida 33130 Verdyce Clarke 2230 N.W. 74th Street Miami, Florida 33147 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The petition herein was filed by Petitioner with PERC on February 12, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated April 23, 1976. (Hearing Officer's Exhibit 2). The Sheriff of Sarasota County is an officer who holds his position by virtue of Article VIII, Section 1(d) of the Constitution of the State of Florida. The duties, responsibilities, and powers of the Sheriff's Department are delineated in Florida Statutes, Ch. 30. There are no special statutes which alter the provisions of Ch. 30 with respect to the Sheriff of Sarasota County. The Petitioner is an association which is seeking to represent a group of public employees concerning matters relating to their employment relationship with the Sheriff's Department. The Petitioner has been certified by PERC to serve as the bargaining representative for employees of the City of Sarasota, Florida. The Petitioner requested recognition as the bargaining agent of the unit of employees described in the petition. The Sheriff's Department did not respond to the request. (Stipulation, Transcript of Record, Page 6). 1/ There is no contractual bar for holding an election in this case. (Stipulation, TR 6). There is no collective bargaining history which would affect the issues in this case. (Stipulation TR, 6, 7). PERC has previously determined chat the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties stipulated that probationary personnel employed by the Sheriff's Department, and special deputies who are not regularly salaried employees of the Sheriff's Department should be excluded from any collective bargaining unit ultimately certified by PERC as appropriate in this case. The organizational structure of the Sheriff's Department is accurately depicted in an organizational chart which was received in evidence as Hearing Officer's Exhibit 5. The Sheriff is the chief executive officer of the Sheriff's Department. The Sheriff's Department is divided into six divisions. There are six sworn law enforcement personnel in the Research, Development, and Training Division. The Division is headed by a Lieutenant. A Corporal serves in this division for two days weekly in the Crime Prevention office. There are four officers in the division. The Sheriff's Staff is headed by the Sheriff. There are no sworn law enforcement personnel in this division. There are five sworn law enforcement personnel in the Detention Division. The Division is headed by a Captain. One sergeant and three patrolmen serve in the division. Two of the patrolmen serve as process servers. The Sergeant supervises the activities of the patrolmen and answers to the Captain. There are approximately 78 sworn law enforcement personnel in the Patrol Division. A Captain is in charge of the Division. There are five lieutenants, seven sergeants, and seven corporals. There are five sworn law enforcement personnel in the Administration Division. The Division is headed by a Captain and includes one lieutenant, one corporal, and two patrolmen. There are sixteen sworn officers in the Investigative Division. The Division is headed by a Captain, and includes two sergeants and three corporals. The Sheriff is ultimately responsible for hiring, firing, suspending, and transferring employees of the Sheriff's Department. Captains serve as heads of four of the Department's divisions. The Captain is responsible for the functioning of his division, and for the assignment and training of personnel who serve under him. Captains are the second highest ranking officers in the Department, and answer directly to the Sheriff. Captains normally work a standard day shift. Lieutenants are in charge of the shifts in the Patrol Division. The lieutenants answer to the Patrol Division Captain. The Lieutenant in the Administration Division is in charge of the Purchasing Office and answers to the Administration Division Captain. The Lieutenant in the Research, Development and Training Division is in charge of the Division and answers directly to the Sheriff. Lieutenants who work the day shift work primarily in the central office. In the four to midnight and midnight shifts the Lieutenant works primarily in a patrol car. Lieutenants are responsible for scheduling the men on their shifts, and for inspecting the men. Lieutenants will serve as acting captain during all times when no captain is on duty. The uniform worn by lieutenants and captains includes a white shirt with the appropriate bars worn on the shoulder. Personnel with the rank of sergeant or below wear uniforms which have light green shirts with patches on the arms. Each of the captains in the Department has use of a department motor vehicle. Some but not all lieutenants and sergeants have use of automobiles. The Sergeants are directly responsible for supervising deputies on patrol. Sergeants are generally responsible for supervising fewer employees than Lieutenants supervise, and Sergeants do not perform regular office functions. Corporals generally serve as backup units for the road deputies. The Sheriff seeks recommendations from each level of the chain of command for personnel action including hiring, firing, transfer, suspension, and other disciplinary action. An advisory committee, which consists of sergeants, corporals, and deputies, makes recommendations respecting hiring of new employees. The Sheriff also utilizes an advisory committee to make recommendations respecting promotions. The Sheriff typically follows the recommendations of Captains respecting personnel administration. Typically the Captains recommendations will be based upon the Lieutenant's recommendations which will be based upon the Sergeant's recommendations. Each division and each department within each division submits proposed budgets to the Administrative Captain. The Administrative Captain and the Sheriff together prepare a proposed budget for the Sheriff's Department. Final budget approval must come from the County Commission. The Sheriff has the various appeal routes set out in Florida Statutes Ch. 30 in the event the County Commission does not approve his proposed budget. Only the Sheriff can expend funds on behalf of the Sheriff's Department. Staff meetings are conducted by the Sheriff on an as-needed basis. Captains and Lieutenants regularly serve on the Sheriff's staff. No personnel below the rank of lieutenant regularly serve on the staff. Other officers are invited to participate in the staff meetings when matters affecting their area of responsibility are involved. The Sheriff receives input at the staff meeting respecting new policies. The Sheriff is ultimately responsible for making decisions respecting new policies, but he does seek the advice of the staff. In the event that the Sheriff's Department engages in the collective bargaining process, no final plans have been formulated respecting which personnel would serve on any negotiating team. The Sheriff intends to do his own negotiating and has not determined whether he will utilize the services of any assistants. ENTERED this 9 day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Respondents failed to file four quarterly and one annual financial statements and failed to maintain minimum amounts of net worth and working capital. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent Susan Jan Haggerty (Haggerty) was the controlling person of Respondent Suncoast Resource Management, Inc. (Suncoast). The Board of Employee Leasing Companies (Board) licensed Suncoast as an employee leasing company, holding license number EL 0000055, and Haggerty as the company’s controlling person, holding license number CO 0000125. Haggerty is also the licensed controlling person for Suncoast Management Group, Inc., an employee leasing company licensed since January 1994. Respondents applied for their licenses in July 1992. Suncoast was first licensed on March 22, 1994, and Haggerty was first licensed on January 13, 1994. Haggerty’s license remains currently in effect. However, following its surrender, as described below, Suncoast’s license became null and void on September 12, 1995. During 1994--its first year of licensed operation-- Suncoast encountered financial problems. At some point prior to December 31, 1994, a workers’ compensation carrier won a judgment of about $200,000 against Suncoast for unpaid workers’ compensation premiums. During 1994, Haggerty decided to close Suncoast. She instructed the company’s independent accountant to contact Board staff and find out how to close down the company, from a regulatory standpoint. An unidentified male staffperson employed by the Board informed the accountant by telephone that all the Respondents had to do was to write the Board a letter informing it of what was happening and to submit the quarterly compiled financial statement. The accountant conveyed these instructions to Haggerty in October or November 1994. Suncoast ceased doing business effective December 31, 1994. During this month, Suncoast terminated its last employee. During 1994, Suncoast had a gross Florida payroll of less than $2.5 million. During 1995, an investigator for Petitioner contacted Haggerty and discussed some of the unfiled financial statements that are the subject of these cases. In an effort to resolve this matter, Suncoast formally surrendered its license on August 2, 1995. The Administrative Complaints allege that Respondents failed to file five financial statements with the Board. These are four quarterly financial statements due for the quarters ending December 31, 1994, and following, and the 1994 annual financial statement. There are also allegations of failure to maintain minimum requirements of net worth and working capital. It appears that Suncoast did not file any quarterly financial statements prior to the one due for December 1994. However, Petitioner did not elect to allege violations of the law for these failures to file. For the relevant period, Suncoast only filed two statements with the Board of Employee Leasing Companies. The first statement was a quarterly financial statement for the last quarter of 1994, which was filed in March 1996--well after the ordinary deadline for such quarterly statements. The second statement was an annual financial statement for 1994. The accountant prepared this statement, dated June 4, 1995, and Haggerty filed it with the Board of Employee Leasing Companies on July 10, 1996--also well after the ordinary deadline for such annual statements. The 1994 financial statement is compiled, not audited or reviewed. The 1994 financial statement reveals that Suncoast had a tangible accounting net worth deficiency of about $180,000 and a positive working capital of $28,737, which reflects current assets and current liabilities and treats the $200,000 judgment as a long-term liability. Suncoast never obtain Board-approved security to offset the $180,000 deficiency in its net worth.
Recommendation It is RECOMMENDED that the Board of Employee Leasing Companies enter a final order dismissing the administrative complaint against Suncoast Resource Management, Inc. and suspending Susan Jan Haggerty’s license for a period equal to the earlier of five years or until she proves to the reasonable satisfaction of the Board that the $200,000 judgment in favor of the workers’ compensation carrier has been satisfied or vacated with all judicial review concluded; but in no event shall the term of the suspension be less than one year. ENTERED in Tallahassee, Florida, on June 5, 1997. COPIES FURNISHED: Mary Ellen Clark Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 5, 1997. Tallahassee, Florida 32399-0792 Attorney Frank M. Gafford Post Office Box 1789 Lake City, Florida 32506-1789 Isla Jones Executive Director Board of Employee Leasing Companies 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent is the governing body of the Jackson County School District, and maintains its office in Marianna, Jackson County, Florida., The Respondent is engaged in the business of operating a school system. The Respondent is a public employer. The JCEA is an employee organization. On or about June 16, 1975, the Public Employees Relations Commission, in Case No. 8H-RC-754-1084, certified the JCEA as the exclusive bargaining representative of certified instructional personnel who are employed halftime or more by the Respondent in specific job categories. After lengthy contract negotiations, which began in August of 1975, a collective bargaining agreement was executed by the School Board and the JCEA on February 2, 1976. A copy of the agreement was received in evidence as General Counsel's Exhibit 1. On February 12, 1976& the JCEA filed an unfair labor practice charge against the School Board with the Public Employees Relations Commission. On February 20, 1976, the JCEA filed written grievances pursuant to Article III of the Collective Bargaining Agreement. The matters raised in the grievances are substantially the same as those raised in the unfair labor practice charge. In accordance with the provisions of the Collective Bargaining Agreement, implementation of the agreement was to be completed by February 16, 1976. During the period just prior to and just following February 16, the Respondent, through its agents, implemented numerous unilateral changes in policies. Prior to August, 1975, members of the collective bargaining unit at Marianna High School were not required to sign in at the beginning of the work day, or to sign out at the end of the work day. During August, 1976, new sign in and sign out procedures were implemented. The procedures applied only to members of the unit. On February 16, 1976, a time clock system was implemented at Marianna High. The system was implemented in accordance with "Memorandum #10", dated February 9, 1976. The memorandum was received in evidence as General Counsel's Exhibit 2. Members of the bargaining unit were required under the new policy to "clock in" on the time clock at the beginning of the work day, and to "clock out" at the completion of the work day. It was announced that failure to clock in and out would constitute grounds for dismissal. The principal at Marianna High School testified that the Collective Bargaining Agreement required more accurate time records, and that the time clock system was instituted in order that more accurate records could be kept. Article IV, Sections 4.2 and 4.3 of the Agreement were cited. Section 4.2 provides as follows: "The teacher's work day shall be seven (7) hours and fifty (50) minutes, during which each teacher shall be provided a duty-free lunch period on campus of not less than twenty-five (25) minutes. The principal of each school shall set the beginning and ending time of the work day. Teachers must have the prior approval of the principal or his designee before they leave school during working hours. Loss of time during the workday shall be covered by approved leave, loss of pay, or compensatory time." Section 4.3 provides as follows: "The principals may assign teachers extra duty which shall be restricted to supervising students on campus before and after school. The principal may also select from volunteers, teachers to supervise students at lunch. Compensatory time, equal to the extra duty time, shall be given teachers serving extra duty and lunch supervision, provided however, compensatory time shall not be given during the student day." Prior to the implementation of the Collective Bargaining Agreement, employees within the bargaining unit were not paid extra duty time. The principal at Marianna High School testified that the precise delineation of the work day, and the entitlement to extra duty pay necessitated the more accurate record keeping. This explanation is inadequate. In the first place, in order to be entitled to extra duty compensation, the principal would have to assign the extra duty. The extra duties could include supervising students on campus before and after school, and during lunch. These sorts of extra duty are not such as would permit great variances in time. It is difficult to perceive why more accurate time keeping procedures were required. Indeed, as to extra duty during the lunch period, the time clock system would be of no assistance whatever. If more accurate time keeping was necessary at Marianna High School, it would have been just as necessary prior to implementation of the Collective Bargaining Agreement. Non-instructional employees of Marianna High School have not formed a collective bargaining unit. Any of these employees are compensated on an hourly basis, and are entitled to more or less compensation depending upon the hours they work. Accurate time records are as necessary for this group of employees as for employees within the bargaining unit; however, the time clock system applied only to employees within the bargaining unit. The time clock system was not the only new policy implemented at Marianna High School to coincide with implementation of the Collective bargaining Agreement. Teachers had been permitted prior to the adoption of the contract, to leave school early for doctors appointments, or to serve civic functions, without the necessity of taking any leave time. Subsequent to the adoption of the contract, if a teacher left more than ten minutes early, he or she would be required to take a minimum of one hour leave time. On or about February 16, 1976, teachers were instructed to stand outside of their classroom from 7:45 A.M. until 8:00 A.M. to supervise students coming into their classroom. Although teachers had previously been required to supervise students coming into their classroom, they were not required to stand outside of their classroom. Prior to implementation of the Collective Bargaining Agreement teachers were permitted to use the teacher's lounge for a planning period. As of February 16, teachers were not permitted to use the lounge for their planning period. The principal at Marianna High School testified that this was necessary in order that he would know where the teachers were since the planning period was to be used for parent consultations in accordance with the Collective Bargaining Agreement. The testimony clearly revealed, however, that the planning period had been used for parent conferences prior to the adoption of the contract. Insofar as limiting the locations for the planning period was necessary, it was as necessary prior to adoption of the contract as subsequent to it. During the course of negotiations, the principal at Marianna High School had expressed a hostile attitude toward the collective bargaining process. None of the new policies set out above were discussed during the course of the negotiations. Each of the new policies was more restrictive than had been the case prior to collective bargaining. The timing of implementation of the policies to coincide with implementation of the agreement, the fact that the policies applied only to personnel within the bargaining unit, the fact that a hostile attitude toward collective bargaining had been expressed, and the lack of any other reasonable explanation for the policies lead inescapably to the conclusion that the new policies were implemented in order to dramatize to members of the collective bargaining unit that resort to the bargaining process would result in more restrictive supervision by the employer. The new policies were implemented for the purpose of discouraging membership in the JCEA, and to interfere with the employees' rights to engage in the collective bargaining process. Similar new and restrictive policies were implemented by the Respondent's agents at Malone High School, and at Golson Elementary School. The new policies at these schools were adopted to coincide with implementation of the Collective Bargaining Agreement, applied only to personnel within the unit, and were implemented in asetting of hostility toward the collective bargaining process. Like the new policies at Marianna High, the new policies at Malone and at Golson were adopted to discourage membership in JCEA, and to interfere with employees in the exercise of their rights to engage in the collective bargaining process. At Malone High. School teachers were no longer permitted to use the teacher's lounge for their planning period as they had been prior to implementation of the contract. Prior to implementation of the contract teachers were permitted to eat lunch in the cafeteria, in the teacher's lounge, or in their own classrooms. Subsequent to the agreement, they were permitted to eat lunch only in the cafeteria, or in the Home Economics classroom, which was not available during all lunch periods. Nothing in the contract in any way necessitated these new policies. One of the top priorities of JCEA in negotiating a collective bargaining agreement was a "duty free" lunch period. JCEA was successful in this respect. The agreement provides for a "duty free" lunch period. Subsequent to adoption of the agreement at a faculty meeting the principal at Malone strongly advised members of the unit to eat with their classes, and in this regard made statements which could only have been perceived as threats. He stated for example that it might be necessary to trade the best player to make a better team. At Golson Elementary School, a "sign-in, sign-out" system was initiated just prior to February 16, 1976. The principal told members of the bargaining unit that he had treated them as professionals", but that now there was a collective bargaining agreement. He required that they sign in at 7:45 A.M. and he frequently reminded the teachers over the intercom system during morning announcements that they should sign in. Prior to implementation of the contract, teachers at Golson Elementary were permitted to leave the school grounds as much as twenty minutes early in order to attend classes, civic functions, or doctors appointments, without the necessity for using leave time. After the contract it was necessary to use one hour leave time in order to leave ten minutes early. Prior to implementation of the contract teachers were permitted to eat lunch in the teacher's lounge or in their own classrooms. Subsequent to the contract they were no longer permitted to do that. Prior to certification of the JCEA as the exclusive bargaining agent of instructional employees of the School Board, the School Board utilized a "Calendar Committee" to assist it in promulgating a calendar for each school year. A representative would be chosen from each school, and the Committee would recommend a calendar for the school year. Among recommendations made by the Calendar Committee would be dates for holidays. During the course of negotiations leading to the Collective Bargaining Agreement, the School Board asserted that the calendar would prohibit negotiations respecting vacation days. The JCEA requested that a Calendar Committee not be utilized for the 1976-77 school year. The School Board nonetheless opted to utilize the Calendar Committee. At Marianna High School Betty Duffee, the chairman of the JCEA's negotiating team was nominated at a faculty meeting to serve on the Calendar Committee. The principal at Marianna High School discouraged the faculty from selecting Ms. Duffee because JCEA would be otherwise represented on the Committee. Use of the Calendar Committee was not designed to frustrate collective bargaining. A Calendar Committee had been utilized prior to certification of the JCEA by the Public Employees Relations Commission. Use of the Calendar Committee to make recommendations respecting mandatory subjects of collective bargaining, such as vacation days, would, however, at this juncture circumvent the exclusivity of JCEA's representation. The fact that the principal at Marianna High School discouraged selection of a JCEA representative to the Calendar Committee indicates an intention to utilize the Committee to make decisions respecting mandatory subjects of collective bargaining, such as vacation days, without the JCEA participating in negotiations. Mary Jo Morton is a teacher employed at Marianna High School. She is active in the JCEA, and this fact is known to the principal at Marianna High School. Shortly after implementation of the Collective Bargaining Agreement Ms. Morton was evaluated by her principal and received an unfavorable evaluation. It appears from the evidence that the evaluation was not conducted under the best circumstances. For example, Ms. Morton was criticized for not permitting sufficient classroom participation during one class while a test was being conducted. Insufficient evidence was offered, however, to establish that the unfavorable evaluations of Ms. Morton were motivated even in part by her participation in the JCEA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that an order be entered as follows: Finding the School Board of Jackson County guilty of committing unfair labor practices by implementing restrictive policy changes at Marianna High School, Malone High School, and Golson Elementary School in such a manner as to discourage membership in the Jackson County Education Association, and interfere with its employees in the exercise of their rights to engage in the collective bargaining process. Finding the School Board of Jackson County guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year. Requiring that the School Board of Jackson County cease and desist from continued enforcement of the policy changes, and from continued utilization of a calendar committee. Directing that the School Board of Jackson County conspicuously post a notice that it has committed unfair labor practices, that it has been directed to cease and desist from such activities, and that it will cease and desist from such activities. RECOMMENDED this 12th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Austin F. Reed, Esquire Public Employees Relations Commission - Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Richard Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Joseph A. Sheffield, Esquire Post Office Box 854 Marianna, Florida 32446 John F. Dickinson, Esquire COFFMAN & JONES 2065 Herschel Street Post Office Box 40089 Jacksonville, Florida 32203
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
Findings Of Fact The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) is a state agency charged with the duty and responsibility for regulating the pari-mutuel wagering industry in Florida and those licensed under Chapter 550, Florida Statutes. At all times material hereto, Respondent, Jack J. Garey, held pari-mutuel wagering license number 1470144-1081, was a licensed thoroughbred owner, and was a permitholder authorized to conduct horseracing at permitted facilities in the State of Florida. Calder Race Course (Calder) was, at all times material hereto, a permitholder authorized to conduct horseracing in the State of Florida. Incident to the operation of that business, Calder extended check cashing privileges to trainers, owners and other pari-mutuel wagering licensees. On or about November 3, 1997, Respondent endorsed and presented to Calder for payment two checks, each in the amount of $500.00, which were payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. Both checks, which Calder paid, were returned unpaid because the account was closed. On or about November 12, 1997, Respondent endorsed and presented to Calder for payment a check in the amount of $1,600.00 which as payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The check, which Calder paid, was, as the previous check drawn on such account, returned unpaid because the account was closed. In late November 1997, Michael Abes, the vice president of finance at Calder, spoke with Respondent regarding the returned checks and demanded repayment. In turn, Respondent acknowledged the debt and promised to repay it; however, no payments were forthcoming. On or about December 27, 1997, Respondent endorsed and presented to Calder two more checks for payment. One check was in the amount of $2,000.00 and the other in the amount of $500.00, and each was payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The checks, paid by Calder, were, as with the previous checks drawn on the same account, returned unpaid because the account was closed. Given the return of the previous checks and his discussion with Mr. Abes, it cannot be subject to serious dispute that Respondent knew when he presented the checks to Calder for payment, that the account on which the checks were drawn had been closed and that they would not be honored by the bank. Despite numerous demands, Respondent did not pay any portion of the outstanding obligation owed Calder until February 1998, when a payment of $300.00 was remitted. Subsequently, on June 5, 1998, the balance of the outstanding obligation due Calder was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint and imposing, as a penalty for such violation, an administrative fine of $300.00, a 30-day suspension, and exclusion from all pari-mutuel facilities in the state for the period of suspension. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 9th day of March, 1999.
