Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
Findings Of Fact On August 24, 1967 Thomas York, an employee of Yell for Pennell, one of the fund members, was injured while so employed and, as a result of the injury, is a paraplegic. A judge of industrial claims has entered an order requiring the payment of $42.00 per week compensation plus medical and nursing expenses for York. Nursing care has recently been running $91.00 per week. York is the only outstanding claim for the 1967 fund year. The average medical expenses for York over the past several years has averaged $8,800 per year. For the 1975 year the medical costs for York were $17,14O. Thomas York is 57 years old. Because of his physical condition aggravated by a drinking problem his life expectancy is approximately five years. The proposed assessment, if each fund amber pays the full amount of time assessment, will produce less than $50,000 income to the fund. The medical payments on behalf of York have materially increased during the past three years. If this trend continues the assessment herein requested will be used up in less than two years. Each fund member is individually and collectively liable for the compensation and medical expenses for York. In the event the fund fails to make payments when due and suit is brought on behalf of York the Trustees or individual embers will be liable for the payments as well as attorney's fees. The fund is current on weekly compensation payments to York, but has deferred payments of medical expenses with the concurrence of the doctor. The present assets remaining in the fund to make payments is less than $1,000. The primary insurance carrier for the fund, State Fire & casualty Company, went into receivership and no payments can be anticipated from this source. The Trustees brought legal action against various parties to recoup expenses to the fund resulting from the default of the primary carrier, but to date those actions have not been marked with success.
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 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 Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate his employment.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent is now, and has been since 1986, employed by the School Board as a Data Input Specialist II. Prior to the effective date of his suspension pending the outcome of the instant dismissal proceeding (that is, prior to the close of business on June 21, 2000), Respondent was assigned to the D. A. Dorsey Educational Center (Dorsey), an adult education center. His suspension pending the outcome of the instant dismissal proceeding is the only disciplinary action that has been taken against him in the approximately 15 years he has worked for the School Board. In discharging his duties as a Data Input Specialist II at Dorsey, Respondent was not responsible for supervising students, nor did he have reason to be with them alone. As a noninstructional employee of the School Board occupying a Data Input Specialist II position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract), effective from July 1, 1999, to June 30, 2002. Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." It provides, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent has a seven-year-old daughter, J. Since his wife passed away in 1994, he has raised J. as a single parent. Four years ago, Respondent opened his home to a 13- year-old boy, D. J. J., whose family had been evicted from the apartment in which they had been living. D. J. J.'s stepmother had just died and his father was unable to properly care for him. From the time that D. J. J. first became a member of Respondent's household until the incident that is the focus of the instant case (Subject Incident), Respondent treated D. J. J. like a son. D. J. J., however, did not always reciprocate and act like a dutiful son. At times, he was rude and disrespectful toward Respondent and refused to follow Respondent's instructions. On three or four occasions prior to the Subject Incident, he even used physical force against Respondent. Respondent responded to these physical attacks, not by hitting D. J. J. back, but with words designed to impress upon D. J. J. that he needed to act appropriately and respect Respondent. While Respondent's words may not have had any long-lasting impact on D. J. J., by talking to D. J. J., Respondent was able to resolve the situation without the use of any force. D. J. J. was also physically aggressive toward Respondent's sister, Sara Payne, and Respondent's niece, Shara Payne. On one occasion, during a visit to Sara's home, D. J. J. asked Sara "to have sex with him." When Sara attempted to get D. J. J. to leave, he refused and grabbed Sara by the arms. Sara, however, was able to free her arms from D. J. J.'s grasp and push D. J. J. out the door. Sara reported to Respondent, prior to the Subject Incident, what had happened during D. J. J.'s visit. Respondent was also made aware, prior to the Subject Incident, of an instance where D. J. J. had walked into his niece's, Shara's, classroom at Miami Northwestern High School, demanded that she leave with him, and, when she refused, pulled her by arm, until a teacher intervened by calling school security. There is no indication that either Sara or Shara suffered any injuries as a result of the above-described incidents. The Subject Incident occurred on September 8, 1999. On that date, D. J. J. was 16 years of age, stood approximately five feet, two inches tall, weighed 160 pounds, 1/ and had a muscular build. Respondent was approximately 25 years older, 13 inches taller, and 40 pounds heavier than D. J. J. Upon returning home from work on September 8, 1999, Respondent reprimanded D. J. J. for not having done his chores around the house. D. J. J., in turn, without saying anything, picked up his house key and headed to the front door "as if he was going to leave." When he saw D. J. J. walking toward the door, Respondent asked D. J. J. for the house key. D. J. J. ignored Respondent's request. He continued walking, silently, toward the door. Respondent followed D. J. J., "sticking close to [D. J. J.] because [Respondent] didn't know [D. J. J.'s] intention." As Respondent repeated his request that D. J. J. hand him the key, D. J. J. went into the kitchen, took a hammer, laid the key down on the counter, and struck the key with the hammer with sufficient force to bend the key. D. J. J. then threw the key to the floor, moved toward Respondent, and struck Respondent in the jaw with a closed fist. After punching Respondent, D. J. J. walked into the living room and picked up a key chain containing Respondent's house and car keys. (Respondent did not have another key to the house.) The front door was locked from the inside 2/ and therefore D. J. J., if he wanted to exit the house (by conventional means), needed the house key to unlock the front door. (All of the house's windows, except for the "safety window," had bars on them, and the safety window was locked, with no key readily available to unlock it.) Concerned that he and his daughter (who was also in the house at the time) might be locked in the apartment if D. J. J. left with the house key, 3/ Respondent repeatedly requested that D. J. J. give him back his keys. Without saying a word, D. J. J. walked into his bedroom and sat down on his bed. Respondent followed him, demanding that D. J. J. return the keys. He told D. J. J., "you can leave and it won't be no trouble, just give me the keys." Maintaining his silence, D. J. J. stood up and started walking toward the bedroom door where Respondent was standing. As D. J. J. approached Respondent, 4/ Respondent took a hot (plugged-in and turned-on) iron that was on a nearby ironing board in the bedroom and struck D. J. J. with the iron in the face, thereby bruising and burning the side of D. J. J.'s face. A scuffle ensued, with D. J. J. trying to take the iron away from Respondent. During the scuffle, Respondent was burned on the leg by the iron, as it fell to the floor. D. J. J. then exited his bedroom and walked into the hallway, with Respondent following behind him. 5/ The hammer that D. J. J. had used to bend his house key was in the hallway. Respondent picked the hammer up and hit D. J. J. on the back of head with it. Neither Respondent's hitting D. J. J. on the back of the head with the hammer, nor Respondent's striking D. J. J. on the side of the face with the hot iron, was reasonably necessary to protect Respondent or his daughter against D. J. J. or to further any other legitimate purpose. Bleeding from the head wounds Respondent had inflicted, D. J. J. went to the telephone that was in the hallway and called the police, who shortly thereafter arrived on the scene. After speaking with D. J. J. and Respondent, and then examining D. J. J.'s injuries, the police placed Respondent under arrest for "aggravated child abuse." The police waited until Respondent's sister, Tatiana (who had agreed to care for J. in Respondent's absence), arrived at the house before transporting Respondent from the scene. Respondent spent the night in jail. The following day, September 8, 1999, Respondent was released pursuant to an Order of Pretrial Release Conditions, which, among other things, prohibited Respondent "from having any contact with" D. J. J. and required Respondent to "stay at least 500 feet away from [D. J. J.], [D. J. J.'s] home, place of employment and/or school at all times." On October 18, 1999, the State Attorney's Office filed, in Miami-Dade County Circuit Court Case No. 99-30932, an "information for aggravated child abuse" against Respondent alleging the following: GREGORY PAYNE, on or about SEPTEMBER 8, 1999, in the County [of Miami-Dade] and [the] State [of Florida], did unlawfully feloniously commit an aggravated battery upon D. J. J., a child of sixteen (16) years of age, by HITTING HIM IN THE HEAD WITH A HAMMER AND BY PLACING A HOT IRON ON HIS FACE, and during the commission of such felony the defendant committed an aggravated battery in violation of s.827.03(1), Fla. Stat., 6/ contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. That same day, Respondent was arrested and taken into custody for violating the requirement of the September 8, 1999, Order of Pretrial Release Conditions that he "stay away" from D. J. J. Respondent remained in jail until October 26, 1999. On that date, Respondent entered a plea of guilty to the "aggravated child abuse" charge filed in Miami-Dade County Circuit Court Case No. 99-30932, after having discussed the matter with his attorney and determined that it was in his best interest to enter such a plea. Respondent was thereafter adjudicated guilty of the crime and ordered to serve one year of community control, followed by one year of probation, during which he was required to "enter and successfully complete the Anger Control Program." 7/ The School Board learned of Respondent's "aggravated child abuse" conviction through a records check (Records Check E-02988). A conference-for-the-record with Respondent was held on February 23, 2000, "to address Records Check E-02988 concerning Aggravated Child Abuse, noncompliance with School Board policy and rules regarding Employee Conduct, a review of the record, and [Respondent's] future employment status with Miami-Dade County Public Schools." At the conference, Respondent was provided a copy of the records check findings and provided the opportunity, of which he took advantage, to "respond to the allegation that [he] 'w[as] arrested and later convicted of Aggravated Child Abuse.'" After doing so, he was advised that further review of the matter would be undertaken and that he would remain in his current assignment pending the outcome of such further review, provided he did the following: Remain in control of [him]self at all times and, specifically, during work hours. Comply with School Board Rule 6Gx13-4A- 1.21, Employee Conduct, a copy of which was provided to [him]. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21(I), Employee Conduct, has provided as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. A pre-dismissal conference-for-the-record was held with Respondent on May 19, 2000. At the conference, Respondent was told that a recommendation for his dismissal would be made based upon the following charges: Just cause, including but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. The Superintendent of Schools subsequently made such a recommendation to the School Board. At its June 21, 2000, meeting, the School Board suspended Respondent and initiated a proceeding to terminate his employment "for just cause, including, but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Respondent formally appealed his proposed termination pursuant to Article XXI, Section 3F. of the Union Contract, and the School Board subsequently referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a hearing on the appeal. Prior to the hearing, the School Board filed and served on Respondent a Notice of Specific Charges, as required by Article XXI, Section 3F. of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through III of the Notice of Specific Charges. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 5th day of January, 2001.
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
The Issue Whether Petitioner, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
