Findings Of Fact At all pertinent times, the Petitioner Fox was employed by the Department of Labor and Employment Security in Position Number 02076, class title, Unemployment Executive II. Petitioner's latest appointment to the Career Service was prior to July 1, 1972. Under the terms of the Governor's Recommendations for Implementation of the 1985-86 Fiscal Year Performance Incentive Increase, Petitioner's anniversary date was adjusted from October 30, 1985 to July 1, 1985. On July 25, 1985, the Petitioner was evaluated by his supervisors as "Exceeds Performance Standards." Petitioner qualified for and received a Performance Incentive Pay Increase, which advanced his base pay rate from $2,950.79 to $3,043.26 per month, the maximum for his class. The percentage increase equaled .03133737 of Petitioner's base salary. Petitioner received this increase without protest. No administrative, legal, or grievance action was filed by Petitioner challenging the propriety of his agency's calculation of the Performance Incentive Increase. On January 1, 1986, all Career Service pay ranges were increased pursuant to the Fiscal Year 1985-86 General Appropriations Act. This had the effect of increasing the maximum rate which could be paid to members of the Career Service System. As a result of the increase, Petitioner was once again below the maximum of the pay range. Petitioner's supervisor submitted an additional personnel action form, which sought an amount which would bring Petitioner's total performance incentive increase to five percent of his June 30, 1986, base salary. That increase equaled $55.07 per month for the months of January, 1986, through June, 1986. Plaintiff is, therefore, seeking a total additional salary increase of $330.42. At the time Petitioner received his July, 1985, pay increase, he was informed by certain Department of Labor and Employment Security officials that an additional performance incentive increase could be granted if the pay grade was subsequently adjusted and the maximum pay allowed for the class was increased. The Petitioner's supervisor within his agency apparently based this assumption on oral information which had been received from an unidentified individual within the Department of Administration. At the same time, the Bureau Chief of Classification and Pay within the Department informed agency personnel offices that such an increase was not authorized. By letter dated February 3, 1986, Don Bradley, Chief, Classification and Pay for the Department of Administration, officially advised the Department of Labor and Employment Security that the requested additional performance incentive increases could not be approved. Final Department of Administration action was taken by letter from Secretary Lambert to Secretary Wallace Orr dated June 20, 1986, which denied a special pay increase request in order to maintain fairness among all the departments. In anticipation of the adjustment to the maximum pay ranges, certain personnel officers within the agencies elected to postpone granting employee pay raises until after January 1, 1986. By doing so, they avoided running afoul of the Governor's Recommendation which states that "no employee shall be eligible to receive more than one merit salary advance during fiscal year 1985-1986."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for an A additional $330.42 salary increase be DENIED. DONE and ENTERED this 7th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 7th day of May, 1987. APPENDIX Petitioner's Proposed Findings of Fact numbered 1-9 have been accepted as modified. Respondent's Proposed Findings of Fact have been accepted, with the exception of those portions of the unnumbered paragraphs rejected as not being germane to this proceeding. COPIES FURNISHED: Gregg L. Fox 2509 Killarney Way Tallahassee, Florida 32308 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether or not Respondent has correctly computed Petitioner's retirement pay.
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are rejected as not supported by competent, substantial evidence, except for the finding that Mr. wade was re-employed at a much lower rate of pay. Mr. Wade terminated his employment with the Legislature on August 8, 1986, and received salary through that date. He was re-employed by the Department of Banking and Finance and not the Department of Agriculture as stated in the Recommended Order. In addition, although Mr. Wade terminated his employment for retirement reasons on August 31, 1990, his effective date of retirement was September 1, 1990, as provided by the FRS law and rules. The Findings of Fact set forth in paragraph 5 are rejected as not supported by competent, substantial evidence. Petitioner was paid in September 1986 for his accrued annual leave, which also included leave credits earned in July and August 1986 before his termination on August 8, 1986. Mr. Wade was employed with the Department of Banking and Finance effective August 11, 1986, and began to earn additional leave credits which he continued to accrue until he retired effective September 1, 1990. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence. Petitioner's annual leave includes leave earned in July and August 1986, which could not be paid until he terminated employment in August 1986. Further, in Chapter 650, Florida Statutes, the Division of Retirement is named as the state agency with the authority for administering Social Security for public employees and the Federal Insurance Contributions Act (FICA) in Florida, including adoption of rules for the reporting of FICA contributions which are due when paid, not when earned. In addition, the Hearing Officer also incorrectly cited Rule 22B-3.0l1(1), F.A.C., which reads: "contributions" and not "benefits." The Findings of Fact set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted in part and rejected in part. That portion of the Findings concluding that $11,286.00 should be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year to obtain a higher AFC is rejected as not supported by competent, substantial evidence. In addition, the 1986 lump sum annual leave payment ($11,286) was not paid to Mr. Wade until after he was separated from state employment effective August 8, 1986. Payment was made in September 1986 and this payment cannot be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year. The Findings of Fact set forth in paragraph 9 are accepted. The Findings of Fact as set forth in paragraph 10 are accepted in part and rejected in part as not supported by competent, substantial evidence. The Petitioner was employed by the Legislature through August 8, 1986. In addition, payment for accrued annual leave credits cannot be made to a state employee until his employment has been terminated which did not occur until August 8, 1986. That portion of the paragraph regarding the application of Generally Accepted Accounting Principles (GAAP) in the computation of retirement benefits pursuant to Chapter 121, Florida Statutes, and the FRS rules, in addition to not being relevant, is rejected as not supported by competent, substantial evidence. GAAP is not applicable as this case is governed by the rules of the Division of Retirement. The Petitioner was terminated in August 1986; therefore, the September 1986 lump sum annual leave payment ($11,286) is a part of the Petitioner's salary compensation for the 1986 - 87 fiscal year. The Findings of Fact set forth in paragraph 11 are accepted. The Findings of Fact set forth in paragraph 12 are accepted in part and rejected in part. The Petitioner's employment did not terminate with the Legislature until August 8, 1986, and he did not receive the payment ($11,286) for his accrued annual leave, which included leave accrued as of June 30, 1986, as well as leave earned in July and August 1986, until September 1986. The payment was calculated for fiscal year 1986 - 1987 which was not one of Mr. Wade's highest fiscal years. The Findings of Fact set forth in paragraph 13 are accepted. However, these findings are irrelevant as GAAP is not applicable to this case. The Findings of Fact set forth in paragraph 14 are accepted.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration, Division of Retirement, enter a final order adding $11,286.00 to Petitioner's $64,172.00 salary as already calculated for fiscal year 1985-1986, and using that figure together with Petitioner's fiscal years 1981-1982, 1982-1983, 1983-1984, 1984-1985 salaries so as to calculate Petitioner's average final compensation for retirement purposes. DONE and ENTERED this 14th day of May, 1991 in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: There are no PFOF 1-4. 5, 5a Covered in the COL. 6 Covered in FOF 5 and 10. 7, 8, 10, 13 The recitation of the witnesses' qualifications and how exhibits came to be admitted is subordinate or unnecessary to the facts as found. The disputed material facts are resolved within the RO. Accepted that the 360 hours of annual leave accrued to Petitioner or obligated the State in 1985-1986 but that the monies therefor were not paid until the 1986-1987 fiscal year. Petitioner's choice of language utilized in this PFOF is confusing and misleading and is not adopted for those reasons. 9, 11 Covered in FOF 10 and 12-14 except for subordinate and unnecessary material which is rejected. Mere recitation of testimony is likewise rejected. 12, 16 Subordinate and cumulative. Accepted in FOF 13, but not dispositive. Accepted but unnecessary and not dispositive of the properly raised issues herein. Respondent's PFOF: 1 Largely subordinate and unnecessary. Covered as necessary in the Preliminary Statement and the COL. 4-8 Covered in FOF 1 and 2 and the COL. 9 Unnecessary and unproven. COPIES FURNISHED: Mr. Thomas L. Wade 602 Concord Road Tallahassee, Florida 32308 Larry D. Scott Assistant Division Attorney Division of Retirement Legal Office 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and $10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid $3.07 per hour less than the prevailing wage for regular time hours worked and $4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked. The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was filed within the time prescribed by statute. Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding $4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
Conclusions Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301 Telephone No.: (904) 488-7396 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Luther J. Moore, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Thomas A. Koval, Esquire Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr. Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR JOHN W. CULP, Petitioner, vs. CASE NO. 78-1281 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, John Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour. Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at $10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour. Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57. The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23. Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed. Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
Findings Of Fact In early 1979, the Department of Administration, Division of Personnel, prepared for the Governor a document entitled Recommended Salaries and Benefits for Career Service Employees for the Biennium July 1, 1979, to June 30, 1981. The purpose of this document was to assist the Governor in making recommendations to the 1979 Legislature regarding salaries and benefits for the State's Career Service employees. Approximately one month after publication of its initial recommendations, the Department of Administration published a supplement to those recommendations to reflect the results of collective bargaining negotiations with various bargaining units and to clarify certain points. With respect to merit salary increases, it was recommended that all funds not distributed as guaranteed merit increases in accordance with specific collective bargaining agreements be "distributed at the discretion of management" to employees with six months satisfactory service as of September 1, 1980. For the supervisory bargaining unit of which all Petitioners are members, all merit funds were to be distributed at the discretion of management. The Governor's recommendations contained in the document prepared by the Department of Administration were furnished to legislators and all State agencies prior to adoption of the Appropriations Act. In 1979, in the Appropriations Act for the Biennium 1979-81, as supplemented in 1980 by the 1980 Supplemental General Appropriations Act, the Legislature appropriated certain funds to be used for merit salary increases for Career Service employees. These raises were to become effective September 1, 1980. Funds were allocated in a total dollar amount for each collective bargaining unit within each state agency. The Legislature, in appropriating funds for salary increases and benefits for Career Service employees, specifically provided that such funds were to be distributed in accordance with the Governor's recommendations. Ch. 79-212, Sec. 21, Laws of Florida. The Department of Environmental Regulation received merit increase monies for its Career Service employees within the following bargaining units: supervisory-professional, professional, administrative clerical, operational services, and managerial/confidential. Petitioners Leslee A. Williams, Sylvia E. Sakamoto, and Rosemary Bottcher are Career Service employees employed in the Bureau of Water Analysis, Division of Environmental Programs. Leslee Williams is a Microbiologist III. Sylvia Sakamoto and Rosemary Bottcher are Chemist III's. Petitioners are employees within the Supervsory/professional collective bargaining unit. On July 31, 1980, the Secretary of the Department of Administration sent a memorandum to all Department heads with attached instructions for implementation of salary increases for employees in all affected bargaining units, including the supervisory unit. The instructions for distribution of merit salary increases to employees in the supervisory unit provided that the distribution of funds to eligible employees was discretionary with management, subject only to a cap on the maximum amount any employee could receive. This cap of 10, 7.5, or 5 percent of an employee's salary is determined by the employee's official performance evaluation rating. With regard to "discretionary merit salary advancements", the instructions noted that: These increases are provided to reward current employees based upon their performance. These increases are intended to allow employees to progress within the salary range in recognition of their increased worth to the State as an employee. The proper implementation of merit salary advancements is critical to the State's ability to reward tie most competent, qualified and productive employees. While the funds are discretionary as to the actual amount any one employee may receive, management has no discretion as to whether the Funds may or may not be distributed. These instructions were received by DER in early August of 1980, and DER immediately began taking steps necessary to implement the salary increases in time for inclusion in employees' September paychecks. In August, 1980, the Secretary of the Department of Environmental Regulation authorized each of the directors of the three principal divisions within the Department (the Divisions of Environmental Programs, Environmental Permitting, and Administrative Services), as well as the offices of General Counsel and the Secretary, individually, to establish or determine the methods, standards for determining employee merit and employee performance and performance to be used within each division or office for identification of those Career Service employees eligible to receive a merit salary increase. By memorandum dated August 2, 1980 the Director of the Division of Environmental Programs requested that all Bureau Chiefs in his division and certain supervisors meet with him to establish a ranking of employees within the division to be used in determining the amount of merit salary increase each eligible employee would receive. This memorandum provided, in part, as follows: . . . We have available a certain amount of "discretionary" money which can be given as merit raises. This will be over and above those pay increases through pay adjustments or cost of living increases, which are mandated by the Legislature. The discretionary amounts are small; but they are significant enough that we should make every effort to insure fairness recognition of outstanding service and encouragement of those whom the Department needs to keep. The final decision on all increases will be mine alone, but the preliminary ranking and classification of the various persons will be done in collaboration with all of you. We will begin with the personnel evaluations. However, since grading standards for the evaluations differ among various supervisors, we will attempt to bring all evaluation ratings to comparable scales. We will then try to emphasize those qualities, both within the ratings and those not included in the particular categories, which most contribute to the mission of the Department. We must all try to eliminate our personal biases in this process and the biases inherent in the evaluation system. If we succeed, the raises will be both fair and perceived as fair and will be a help to Division and Department morale. I ask your complete cooperation in this process. (Emphasis added) On September 2, 1980, the Director of the Division of Environmental Programs sent a memorandum to all employees of the division explaining the process used in computing merit salary increases for division employees. The September 2, 1980, memorandum contained the following provisions: The raises were awarded based on relative scores given to each employee. This scoring was done by the Director, Deputy Director and Bureau Chiefs (together with independent office heads for those classes which contained their subordinates) in joint session. First, each employee's evaluation was considered and then related to that of ether employees in the class. The employee's other attributes and contribution to his program and the Department was then discussed. His immediate supervisor's rating tendencies were considered (and we, incidentally, gained a very good idea of how different were the different scoring scales used) and the supervisor was called and consulted if there was difficulty in reaching a consensus. In almost every case one or more of the Bureau Chiefs, other than the employee's own, had experience and opinions on that employee to share. We repeatedly examined each other on the possibility of bias and favoritism. Finally, the employee was given a weighted percentage score. Although some discussions were more protracted than others, complete consensus was reached in every case. The Director and Deputy Director then translated the relative scores into both the base salary and the dollars available within the class. Some small further subjective judgements were necessary because of rounding and some inexactness in the formula but they were extremely minor - no more than $1.00 per person and usually much less. The raises given reflect very closely the relative scores from the joint sessions. There is considerable agreement between the curve of the merit raises and the curve of the evaluations. They are far from congruent, however. Some employees with relatively high evaluations got no merit raises; others relatively low got substantial ones. In each case the discussions were very extensive and the decision was made only after all were convinced that an injustice would otherwise result. Such inflated and deflated evaluations will be the subject of much additional scrutiny in the coming year. Merit salary increases for all 192 Career Service employees within the Division of Environmental Programs were determined pursuant to the methods, standards for determining employee merit and employee performance, and procedures contained in the memoranda of August 25, 1980, and September 2, 1980. The three Division directors, the General Counsel, and the Secretary of DER each used different methods to award merit salary increases to employees in their respective offices. The method used by the Director of the Division of Environmental Programs to award merit salary increases for 1980 was different from the various methods used by DER in the past to distribute similar appropriations. Since at least 1975, DER has made a separate determination each year that funds appropriated for merit increases of the manner in which those funds would be distributed. A decision made one year was not prospectively applicable to future appropriations. Since at least 1975, the Department of Environmental Regulation has evaluated the job performance of its Career Service employees on an annual basis pursuant to procedures applicable to the entire Department. Currently, the Department follows the employee performance evaluation procedures contained in Section 3.2, Department of Environmental Regulation, Administrative Services Internal Management Policies and Procedures Manual ("ASIMPP") including exhibits attached thereto. These procedures and criteria were adopted by the Department pursuant to Rule 22A-9.02(1), Florida Administrative Code, and Section 110.201, Florida Statutes, but have never been adopted as "rules" through Section 120.54, Florida Statutes rulemaking proceedings. The policy of the Department, as stated in the ASIMPP, is to use performance evaluations ". . . to award or deny salary increases . . ." In 1976, 1977 and 1978, merit salary increases were awarded to career service employees in the Department based solely upon performance evaluations. In each of those years, the "merit" of employees was determined by the annual performance evaluations, but a differing method of computing the dollar amount was used for each year. However, within categories of employees having the same performance evaluation rating, the method of calculating the dollar amount was uniformly applied. These standards and procedures for awarding merit salary increases in 1976, 1977, and 1978 were in written form, were established by the Secretary of the Department, and were communicated to all employees. There were no merit raises in 1979. Since at least June 19, 1978, the Department of Environmental Regulation has also had in effect a written policy statement which provides in part: The personnel Rules and Regulations provide that merit/anniversary increases be based on performance evaluations Petitioners were given performance evaluations in the summer of 1980 pursuant to the procedures in Sec. 3.2, ASIMPP and each Petitioner was rated "above satisfactory." Petitioners each had at least six months continuous and satisfactory service on September 1, 1980, and were otherwise eligible to receive a merit salary increase on September 1, 1980, but were denied such a salary increase. Neither of the methods and procedures used by the Division of Environmental Programs to distribute merit salary increases to division employees for 1980, as outlined in the memoranda of August 25, 1980 and September 2, 1980, nor the methods used by the other two divisions and the General Counsel and Secretary were adopted through formal rulemaking in accordance with Section 120.54, Florida Statutes. In each case, the procedures used applied only to Career Service employees within that division or office who were eligible for a merit increase and were used only to determine the distribution of those funds appropriated by the Legislature for the biennium 1979-81. Counsel for Petitioners and Respondent stipulated that the methods used by the Division of Environmental Programs to determine merit salary increases affect the private interests of Petitioners, and further, that Petitioners have standing to bring this petition pursuant to Section 120.56, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issues in this case are whether or not Respondent: During the course of its negotiations for collective bargaining agreements for the above charging parties which are certified employee organizations representing various units of Respondent's employees, interfered with restrained or otherwise coerced employees in violation of Chapter 447.501(1)(a), Florida Statutes, (herein sometimes called the Act). Refused to bargain in good faith with the charging parties as certified bargaining agents of its employees, in violation of Chapter 447.501(1)(c) of the Act. Refused to discuss grievances in good faith pursuant to the terms of collective bargaining agreements in violation of Chapter 447.501(1)(f) of the Act. At the close of the testimony all parties waived oral argument, but briefs were filed by the General Counsel of the Public Employees Relations Commission (herein sometimes referred to as the Commission), Counsels for the International Association of Firefighters, Local number 747 (herein IAFF) and the Respondent which have been carefully considered by me in preparation of this recommended order which will be distributed to the parties in the usual course. Upon the entire record in this case, observation of witnesses on the stand, and consideration of arguments of counsel, I make the following:
Findings Of Fact The complaints allege, the parties admit and I find that the Respondent is a public employer within the meaning of Chapter 447. The complaints allege further, the parties admit and I find that the Charging Parties are certified employee organizations which represent various employees of the Respondent in units which will be set forth in detail hereinafter. During 1976, all three employee organizations were parties to collective bargaining agreements with the employer which expired on September 30, 1976. Respondent began negotiation with the Pinellas County Police Benevolent Association, PBA, herein, on March 10, 1976, with the IAFF on April 29, 1976 and with the International Brotherhood of Firemen & Oilers, Local 1220 (IBF&O herein) on August 9, 1976. After numerous negotiation sessions, the statutory impasse procedures were invoked and hearings were held before a special master on September 27 and 28, 1976. However, subsequent to the invocation of the impasse procedures and prior to the special master hearings, the parties proceeded through mediation and continued bargaining sessions until or about September 16, 1976. On August 4, 1976, the City Council met in a "workshop session" and abolished the step-merit increase pay plan which had been in effect for several years. The step-merit increase pay plan had been a principle item of contention between the parties in bargaining and was one of the three issues submitted to the special master during hearings on September 27 and 28. Other issues of whether or not changes should be made in the pay plan provisions for firefighters and lieutenants and whether changes should be made in the acting officer pay policy provisions were also submitted to the special master. The following day, on August 5, the City's chief negotiator, Robert DuVernoy, was instructed by the City Manager that the City Council had directed the step-merit increase pay plan be abolished. On September 29, 1976, the Respondent, through its chief negotiator Robert E. DuVernoy, notified the presidents of all three Charging Parties that wages would be frozen at September 30th levels allegedly due to expiration of the various contracts. Additionally, on October 6, 1976, Respondent informed the IAFF that effective October 4, 1976, the following terms and conditions of employment would be unilaterally altered: increase in "checkoff" fee from $.04 per individual to $500.00 for processing all payroll deductions for fiscal year 1976-77; the employee organization grievance procedure, the sick leave provision for family illness, the "step- merit increase pay plan" and the withholding of increments arising under said plan, the acting officers program, insurance coverage for non-high risk on-duty injury and the physical exam program were all deleted. Respondent announced its plan to reduce from $5,000.00 to $2,000.00 its life and accidental death and dismemberment insurance. All of these changes were in fact implemented as reported by Respondent. Subsequent to September 29, 1976, the Respondent refused to process grievances concerning nonpayment of step increments filed by employees represented by IBF&O stating that the subject matter of such grievances was nongrievable and inappropriate. Pursuant to the step-merit increase pay plan contained in each of the parties' collective bargaining agreements, employees were eligible for an evaluation on their anniversary date and assuming that their evaluation was satisfactory, they were entitled to a step increase pursuant to a contractual salary schedule. Testimony reveals that these increases were granted almost automatically and that the plan had been operative since 1972. THE POSITION OF THE RESPONDENT The Respondent, in its answer and during the course of the hearing, denied the commission of any unfair labor practices. Respondent urges that pursuant to its inherent managerial rights in the procedure delineated in the impasse resolution provisions of the statute, the legislative body through its political process determined the level of services to be offered to the City August 5, 1976, and the substantive conditions of employment for bargaining units when they took final contract action in "the public interest". Respondent alleges further that the executive branch geared to the legislative process, conducted meaningful negotiations at the table which continued through the special master's proceedings with the PBA and IAFF and that only when the opportunity to reach agreement at the table was exhausted, an agreement had to be reached and with the budget having been determined, the City had no alternative but to eliminate the merit step plan, the grievance procedure and checkoff fee once the contract expired. With respect to the other changes, Respondent insists that such changes amounted only to implementation of its last best offer at the bargaining table and was therefore legitimate and proper. As regards the IAFF, Respondent urges that it has no standing to now complain since it waived any rights it had under the expired 75-76 collective bargaining agreement. Respecting the allegations of the IBF&O, the Respondent alleges that that organization recognized the circumstantial dilemma that the City faced and hammered out a collective bargaining agreement through the negotiating sessions. All parties agreed that after invocation of the statutory impasse procedures, the parties continued to negotiate and in fact movement was made with respect to those issues pending. The parties recognized and agreed that based on the newness of the Florida Statute which regulates collective bargaining in the public sector i.e., Chapter 447, that lessons gained from other state boards and the federal sector are instructive and are useful in resolving similar issues arising in this state. Turning to such cases, the NLRB has long recognized that an employer's unilateral action with respect to a mandatory subject of bargaining is a per se violation of Section 8(a)5 of the National Labor Relations Act, 29 U.S.C.A., Section 151 et seq. Such a position was sustained by the United States Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Supreme Court was confronted with the issue of whether an employer could unilaterally change its sick leave plan and system of wage increase reached during negotiations between the employer and the bargaining agent. In reaching its decision, the court found that the employer was not at liberty to institute changes respecting mandatory subjects of bargaining during the course of negotiations. 369 U.S. at 737. The court disregarded the necessity of establishing whether or not the employer's conduct evidenced an absence of objective good faith and aid such conduct amounted to per se violations and was a circumvention of the duty to negotiate. Other states have reached a similar result in assessing whether or not such conduct amounted to a violation of the duty to bargain. The undersigned has considered the exceptions which have been recognized i.e., waiver, necessity and impasse, and concludes that they are not operative based on evidence adduced herein. Evidence reveals that while the changes were implemented herein, negotiations were ongoing and the Respondent admits that movement was in fact made while the negotiating process was occurring. It was also noted that the matters in which the Respondent unilaterally changed were principle subjects affecting the terms and conditions of employment of its employees. For example, the step-merit increase pay plan had been operative for at least 5 years and in view of the customary grant of the increase, the employees continued to expect such increases. Based thereon, and in view of the fact that negotiations were ongoing and no exceptions to the per se rule were established as being operative herein, I find that the employer's conduct in unilaterally implementing the changes except as noted hereinafter, amounted to a violation of its duty to bargain in good faith within the meaning of Chapter 447.501(1)(c) and derivatively a violation of Chapter 447.501(1)(a), Florida Statutes. Respecting the allegation that the Respondent refused to process a grievance which arose after the expiration of the parties' bargaining agreement, the undersigned is of the opinion that the employer was not obliged to continue to process grievances pursuant to the grievance arbitration machinery provision contained in an expired contract since such obligations have been universally recognized to be contractual in nature which may be terminated during the contract hiatus. (See for example Hilton Davis Chemical Co., Division of Sterling Drugs 185 NLRB No. 58.) Based on the foregoing findings and conclusions, I hereby make the following:
Recommendation Based on the foregoing findings of fact and conclusions of law I shall therefore recommend that the Respondent: Make whole any affected employees by returning to them any and all benefits, financial or otherwise, lost as a result of its unilateral action which is or has not been presently restored. Post at its facilities in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain in good faith by changing terms and conditions of employment and thereby altering the status quo during the period in which the collective bargaining process is continuing. In all other respects, I hereby recommend that the complaint be dismissed. DONE AND ENTERED this 3rd day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony Cleveland, Esquire Staff Attorney for William E. Powers, Jr. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 John C. Wolfe, Esquire Post Office Box 2842 St. Petersburg, Florida 33731 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33132
Findings Of Fact Petitioner, Shirley Gibson, is a permanent status employee of the Department of Health and Rehabilitative Services (HRS) in Clearwater, Florida. She has been employed by HRS for over five years. On June 19, 1982, Petitioner took a voluntary demotion from the position of clerk typist III (pay grade 07) to secretary II (pay grade 06). The demotion appointment was properly made with permanent status, and she retained her full salary of $403.82 biweekly. On August 27, 1982, Gibson was promoted to the position of personnel aide (bay grade 10). In conjunction with her promotion she received a ten percent promotional increase which raised her salary to $442.52 biweekly. The minimum pay grade for the personnel aide class at that time was $396.80. Therefore, at the time of promotion, Gibson's salary exceeded the minimum salary for the class to which she was promoted. On September 1, 1982, Petitioner received the seven percent pay increase granted all state employees. This pay adjustment raised her compensation to $473.50 biweekly. In February, 1983 Respondent, Department of Administration (DOA), completed a comprehensive personnel program review whose purpose was to ensure that the overall administration of HRS's personnel program in Clearwater was in compliance with the Respondent's personnel rules. During the course of that review Gibson's personnel file was randomly selected for inspection, and the promotional increase given on August 27, 1982, was found to be in violation of Rule 22A-2.07(1)(c), Florida Administrative Code. The Department concluded that based upon the provisions of the rule, Petitioner's salary should have remained at $403.82 since she was ineligible for a promotional increase on August 27. Thereafter, it directed that her biweekly salary be reduced to $432.09 1/ effective April 8, 1983, and that she refund the difference ($561.91) between that amount and the $473.40 biweekly pay she received for the period August 27, 1982, through April 7, 1983. This refund is to be accomplished by payroll deductions from Gibson's salary over eight pay periods. On May 11, 1983, Petitioner filed a petition to have Rule 22A- 2.07(1)(c) declared invalid, and the entry of an order requiring the comptroller to refund all funds paid on the alleged overpayment of $561.91. Rule 22A-2.07, Florida Administrative Code, generally relates to the pay plan for career service employees. Subpara-graph (1)(c) thereof provides generally that once an employee is demoted without a reduction in salary, and is subsequently promoted within six months, he or she is not eligible for a promotional increase unless the salary is below the minimum for the class to which the employee is promoted. The purpose of this provision is to ensure that demotions and promotions are not artificially created to give salary increases not authorized in other parts of the personnel rules. Petitioner contends the rule is unfair and discriminatory because it does not distinguish between multi-step and single step promotions in its application. She also contended that HRS had given promotional increases to several other individuals in the past under similar circumstances. This was confirmed by a representative of HRS who noted that such increases had indeed been given until DOA had advised it was incorrect.
Findings Of Fact Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause. DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Kenneth H. Hart, Jr., Esquire 401 Collins Building Tallahassee, Florida 32304 Brian Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, a career service employee of the Department working in the economic services unit of the Department's District 9 (hereinafter referred to as the "District"). His employment with the Department began on September 30, 1987, when he was hired to fill a Public Assistance Specialist (hereinafter referred to as "PAS") position. On May 6, 1994, Petitioner was promoted to a Senior PAS position. The Senior PAS classification was relatively new. It was established in August of 1993. Along with his promotion, Petitioner received a 10 percent salary increase. It was then, and it has remained, an accepted general, Department-wide practice (but not a requirement) to give salary increases of 10 percent, if possible, to Department employees upon promotion. Whether such a 10 percent promotional increase should be given in a particular instance to a promoted employee working in a district office is a matter that is within the discretion of that district's district administrator. By letter dated January 6, 1995, the Department requested the Department of Management Services (hereinafter referred to as "DMS") to grant upward pay grade adjustments for the PAS and Senior PAS classifications. 1/ The letter read as follows: As you are aware, Florida's error rates for public assistance programs have been well over the national average and the federal government has imposed penalties in both our food stamp program and . . . Aid to Families with Dependent Children. The department has worked very hard to develop strategies to reduce error rates and subsequent penalties by decreasing fraudulent practices, improving communications between workers and clients, improving the FLORIDA system and providing better training staff. A major effort is being made to attract and retain good employees and to reward and retrain current staff and decrease turnover rates. In order to ensure the success of these efforts, we are requesting upward pay adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist with an effective date of December 30, 1994. We wish to adjust the pay for the Public Assistance Specialist from pay grade 015 to 016 and give employees assigned to the class the difference in the minimum salaries for these pay grades. This increase will be in the amount of $40.91 biweekly per employee. We also wish to adjust the pay for Senior Public Assistance Specialists from 016 to 017. Because these employes were recently promoted and received a promotional increase at that time, we are requesting approval to only increase the salary of those employees assigned to the class who are below the new minimum. These employees will receive an increase to the minimum of the new range. Employees who are above the minimum salary of the adjusted pay grade will receive a one- time lump-sum bonus payment using productivity enhancement monies in lieu of a salary increase in order to provide some equity in the class. There is sufficient rate and budget to support this request. If you have any questions, please let me know. We will be happy to meet with you or your staff to discuss this request. PASs and Senior PASs are included in a collective bargaining unit represented by AFSCME Council 79 (hereinafter referred to as the "Union"). In accordance with the provisions of the collective bargaining agreement covering this bargaining unit, DMS, by letter dated March 15, 1995, notified the Union of the Department's proposed pay grade adjustments and invited the Union to comment on the proposal. On March 20, 1995, the Union gave DMS written notice that it "approved" of the proposed pay grade adjustments. By letter dated March 23, 1995, DMS informed the Department of its decision to make the requested adjustments (hereinafter referred to as the "1995 pay grade adjustments"). The letter read as follows: This is in response to your January 6 letter requesting pay grade adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist. Based on the information provided and that funding is available, we concur with your request and have adjusted the pay grades for the classes of Public Assistance Specialist, Class Code 6057, from Pay Grade 15 to 16, and Senior Public Assistance Specialist, Class Code 6050, from Pay Grade 16 to 17. All other designations remain the same. The pay grade adjustment for the class of Public Assistance Specialist will be accomp- lished by increasing the employees' base rate of pay by the difference between the minimum of the pay grades, provided it does not place their salary above the maximum of the range. The class of Senior Public Assistance Specia- list was established effective August 4, 1993. Based on your statement that employees were promoted over a year ago into this class and received a promotional increase at that time, we concur with your request to increase the salary of those employees assigned to the class who are below the new minimum to the minimum of Pay Grade 17. As requested in your letter and our conver- sation with the Office of Planning and Budgeting, these actions are effective December 30, 1994. If you have any questions concerning this matter, please call me or Ms. Mary Dinkins at . . . . Petitioner was among the Senior PASs employed by the Department whose salary was below the minimum salary for Pay Grade 17. Accordingly, as a result of DMS having reassigned the Senior PAS classification from Pay Grade 16 to Pay Grade 17, Petitioner's salary was increased (by $1.47 biweekly, retroactive to December 30, 1994) to $813.96, the minimum salary for the newly assigned pay grade. The salaries of all other similarly situated Senior PASs in the state were likewise increased to the minimum salary for Pay Grade 17. 2/ There are employees in the District presently filling Senior PAS positions who have fewer years of service with the Department than Petitioner, but whose salaries (for reasons that have no apparent connection to their job performance, qualifications or duties) are nonetheless greater than his. 3/ (These are employees who were promoted to their Senior PAS positions after the pay grade for the Senior PAS classification was upgraded to a Pay Grade 17 and who, in addition to their promotions, received a 10 percent increase in salary upon their promotions, as Petitioner had when he was promoted to his Senior PAS position.) On May 24, 1995, Petitioner filed an employee grievance with the Department requesting that the Department "make [his] salary equitable with those Senior P[ASs] whose promotions were granted after 12/31/94 and . . . restore to [him] all pertinent back pay, since 1/1/95." Petitioner's grievance was presented to a grievance committee, which issued the following written "summary/recommendation:" It is the findings of this Committee that while the public assistance upgrades caused some variations with how individual PAS[s] and Senior PAS[s] ended up on the pay scale in comparison to each other, based on when promoted to a Senior PAS, all staff in like positions were treated in the same manner statewide. The variations resulted in trying to create a career ladder as well as upgrade entry level positions. Mr. Chernaik is correct in that he- and also other Senior PAS[s]- might be paid less and have more experience than a PAS who now gets promoted to Senior PAS. This issue may be resolved on a statewide basis. However, if the statewide resolution does not occur, this Committee recommends that every effort should be made to correct this inequity by like compensation for all Senior PAS[s] at the local level. As stated in the grievance filed by Mr. Chernaik, this inequity began 12/31/94 and compensation should begin retroactive to this date if salary and rate would be available. Although difficult to establish a definite time frame for action, this Committee will suggest that the State of Florida act upon this matter by December 31, 1995. At that time, if no resolution can be found at the State level, this Committee recommends that District 9 pursue all options to correct this inequity by 6/30/96 retroactive to 12/31/94. After reviewing the grievance committee's written report, the District Administrator denied Petitioner's grievance on September 7, 1995. On September 21, 1995, Petitioner requested "Secretarial review" of the District Administrator's decision to deny his grievance. By letter dated December 18, 1995, the Department's Human and Labor Relations Administrator, David Wilson, responded to Petitioner's request. Wilson's letter read as follows: This is in response to your request for a Secretarial Review of your Career Service grievance dated May 2[4], 1995. I have been designated by the Secretary to review the concerns expressed in your grievance. Our examination of the relevant data finds that the Grievance Review Committee did a thorough job in its investigation. The committee found that subsequent to the public assistance specialist pay grade adjustments, some newly promoted senior public assistance specialists may have received a higher salary than existing senior public assistance specialists with more experience. The committee recommended that if this situation could not be resolved as a statewide issue, means should be found to address it within District 9. Finally, the committee recommended that any compen- sation adjustments should be retroactive to December 31, 1994. The threshold issue in this grievance is whether or not there have been any violations of the state's pay rules. In its letter of March 23, 1995, the Department of Management Services (DMS) approved the Department of Health and Rehabilitative Services' (HRS) request to adjust only the salaries of those Senior Public Assistance Specialists " . . . assigned to the class who are below the new minimum of Pay Grade 17." This method of implementation was requested by HRS due to the limitation of available funds at the time the pay grades for the classes in ques- tion were adjusted. Personnel Rule, Section 60K-2.006(2), Florida Administrative Code, Upward Pay Adjustments, states in relevant part, "When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted. This procedure for granting pay adjustments shall apply unless a different method of implement- ation is required by the department." Based on the fact that DMS approved this method of implementation as provided for in the above cited rule, there is no violation of the Rules of the Career Service System. As it relates to the recommendation that there should be retroactive salary increases, there is no provision in the Personnel Rules of the Career Service System for retroactive pay. In fact, it is specifically prohibited. Section 60K-2.022(3) states in relevant part: "An agency shall not establish a retroactive effective date for any salary action." In the September 7, 1995 response to your grievance, District Administrator Suzanne Turner correctly stated that pay grade adjust- ments and pay adjustments related to the minimums of classes are statewide issues, as noted above. Subsequent to her response, it was determined that this issue was to be handled at the district level after conside- ration of available budget and rate. Based on the foregoing, I find no violation of the Rules of the Career Service System. Petitioner thereafter requested the Department to "grant [him] a Section 120.57 hearing on the matter." The Department granted the request and referred the matter to the Division. In addition, on or about January 11, 1996, Petitioner brought his grievance to the attention of DMS. DMS responded by sending Petitioner a letter, dated February 7, 1996, which read as follows: We received the documents you submitted regarding your career service grievance on which a final decision was issued by Mr. David Wilson of the Department of Health and Rehabilitative Services on December 18, 1995. Rule 60K-9.004(7), states that the agency head's decision on a grievance is final except as provided in Section 60K-9.004(6), which states: "That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or designee's decision." We have reviewed Mr. Wilson's answer and concur that there has been no violation of any Career Service rules and regulations. Inasmuch as your grievance does not cite additional violations of Career Service rules and regulations, we consider the agency head's decision final on the matter. On February 23, 1996, DMS sent the following letter to Petitioner: 4/ This is in reference to your February 20 tele- phone call to Ms. Mary Dinkins regarding my February 7 letter to you. We have again reviewed your grievance and do not find any violations by the Department of Management Services (DMS) in approving the pay grade adjustment for the Senior Public Assistance Specialist class. Section 60K-2.006(2), Florida Administrative Code, indicates "This procedure for granting pay adjustments shall apply unless a different method of implementation is required by the department." The Department of Health and Rehabilitative Services requested the method of implementation and DMS has the authority to approve it. On April 30, 1996, DMS sent a third letter to Petitioner, which read as follows: 5/ This replies to your career service grievance of January 11, 1996, asserting that the Department of Management Services violated section 110.209(1), Florida Statutes, by creating an inequitable pay plan when it approved, by letter of March 23, 1995, the request of the Department of Health and Rehabilitative Services to adjust the pay grade of the classification of Public Assistance Specialist, class code 6057, from pay grade 15 to pay grade 16 and the class- ification of Senior Public Assistance Specia- list, Class Code 6058, from pay grade 16 to pay grade 17. We understand the basis of your assertion that DMS created an inequitable pay plan to be that when the upgrade was put into effect you received a pay raise only to the minimum pay for the classification and that thereafter employees who were promoted from PAS to Senior PAS were promoted with pay raises that gave them higher salaries than yours although you had more seniority. The HRS letter of January 6, 1995, requested approval to increase the salaries of only those in Senior PAS positions who were below the new minimum, and to increase them to the new minimum, because those employees had been recently promoted and received a promotional increase at that time. The DMS approval of that request was authorized by Rule 60K-2.006(2). On March 15, 1995, DMS wrote to the President of AFSCME pursuant to Article 1, Section 3 of the collective bargaining agreement, explaining the proposed action. AFSCME approved it in writing on March 20. Under Section 110.209, DMS provides a broad salary range for each class, and each employing agency determines the specific salaries. DMS was not involved in the pro- motions and salary decisions that were made after the pay upgrade. HRS did not submit those proposed actions to DMS for approval, and DMS does not exercise approval authority over such actions. The later promotions with higher pay were not contemplated in the March 23 approval. It is our position that our approval did not create an inequitable situation and that DMS did not have any responsibility for the subsequent pay decisions. Your letter of March 4 requests a hearing on the grievance. Rule 60K-9.004(5) provides for a 14-day deadline to file a grievance; that is, 14 calendar days after the event that give[s] rise to the grievance. Your grievance against DMS is untimely. There is no statute or rule providing for a hearing on a career service grievance, even if the grievance had been timely. The DMS decision on a career service grievance is the final action. Your request for a hearing is denied. The Public Employees Relations Commission has ruled that it does not have jurisdiction of career service grievances. Copies of two PERC orders to that effect are enclosed (Goll and Sullivan cases).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department (1) find that Petitioner did not receive an "underpayment," as defined in Rule 60L-8.003(1), Florida Administrative Code, and is not entitled to the backpay he has requested; and (2) exercise its discretion, pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code, to increase Petitioner's rate of pay (prospectively) so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1996. STUART M. LERNER, 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 29th day of July, 1996.
The Issue Whether Respondent committed the unlawful employment practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR), and if so, what relief should be granted.
Findings Of Fact At all times relevant to this proceeding, Mr. Grasso was employed by the Agency as a fire protection specialist. Mr. Grasso was born on December 27, 1953. When he was 46 years old, he was hired by the Agency as a health facility evaluator, above base salary. When he was 48 years old, Mr. Grasso was promoted to the fire protection specialist position, above base salary. When he was 54 years old, he received a special pay increase. Fire protection specialists survey health care facilities for fire safety. These surveys can be pursuant to federal guidelines and state guidelines; they include off-site preparation, entrance conferences, a tour of the facility, records review, and staff and resident interviews. Fire protection specialists also must adhere to the Agency's protocol, which provides guidelines as to the amount of time that should be devoted to a facility, given its type and size. By all accounts, Mr. Grasso is passionate about his work, but is difficult to manage because he challenges management directives at every turn. In the summer of 2010, after Mr. Grasso was transferred from the Bureau of Plans and Construction to the Bureau of Field Operations, the management team noticed some deficiencies in Mr. Grasso's job performance. In this new assignment, his direct supervisor was Lorna Howell, who reported to Arlene Mayo-Davis, who in turn reported to Bureau Chief Polly Weaver. On one occasion, Ms. Davis asked Mr. Grasso to assist with a survey in Tampa, although Mr. Grasso was stationed in the Delray Beach office. Mr. Grasso indicated that he was unavailable for the dates requested and that, if he did do the work, he wanted additional compensation. In September 2010, problems arose regarding Mr. Grasso's upcoming October schedule; he was requesting overtime pay for the work he was scheduled to complete. The Agency responded that no overtime was necessary because his schedule could be adjusted to limit his work to regular work hours. Mr. Grasso threatened to file a grievance. The three management witnesses credibly testified to a pattern that existed: Mr. Grasso failed to properly manage his time. He frequently took longer to conduct surveys that his colleagues could complete in shorter timeframes, he often had logged in 40 hours of work by the fourth day of a five-day work week, he requested changes to his survey schedules and deviated from the schedule without seeking permission, and he often failed to adhere to the scheduling and staffing protocols. He requested overtime almost weekly, and his colleagues rarely did so. His requests were often found in emails sent to management that were written in such a way as to reflect disdain for management and an inability to accept a management decision. In August of 2013, Mr. Grasso requested a pay raise based on the fact that he had received a competitive job offer. Ms. Weaver, who processes these types of requests, decided not to recommend Mr. Grasso for a pay raise because he did not exhibit team player attributes, he often challenged management decisions, and he had yet to resolve his time management issues. Ms. Weaver found Mr. Grasso to be unwilling to perform his job as requested by the Agency; therefore, he was denied the pay raise. Ms. Weaver had, in 2012, recommended a pay raise for a different fire protection specialist, Mr. Pescatrice. Mr. Pescatrice worked in a different field office than Mr. Grasso, had perfect evaluations, worked well with others, had garnered positive feedback from everyone he worked with, and had received a competitive job offer. His supervisor had expressed a need to keep Mr. Pescatrice in the Agency's employ. Ms. Weaver, when deciding whether to recommend both Mr. Grasso and Mr. Pescatrice for a competitive pay raise, was unaware of their respective ages. At the time they requested the raises, Mr. Grasso was 59, and Mr. Pescatrice was 51. In October 2013, Mr. Grasso exchanged emails with management questioning the decision to not send staff to a seminar. Management viewed Mr. Grasso's emails as disrespectful, and asked Mr. Grasso to cease communication regarding the subject. Later that month, pursuant to the Agency's leave policy, Mr. Grasso was asked to provide a doctor's note to document the need for sick leave, as he had been absent four days in a 30-day period. He was unable to provide a medical note; management asked him to consider the request a reminder of the Agency's leave policy; and no discipline was imposed. In November 2013, Ms. Davis convened an informal counseling session with Mr. Grasso. She was unaware that Mr. Grasso had filed a Complaint with FCHR. At the session, Mr. Grasso was notified of the Agency's concerns regarding time management and disrespectful communications with management. He was given counseling and a plan to correct the behavior in those areas. Two days after the counseling session, Mr. Grasso notified his supervisor that he would be adjusting his work hours, despite the fact that he had not followed Agency policy seeking prior approval. The record is replete with emails from Mr. Grasso to management that are argumentative and reflect a disdain for management decisions. Mr. Grasso's rendition of the alleged age discrimination presented through his testimony at hearing is not found credible and is belied by the credible testimony provided by the Agency's witnesses. He was denied a pay raise for legitimate reasons and not due to his age. His documentary evidence, a "statistical" report purporting to reflect age discrimination, was created by Mr. Grasso himself and was not supported by testimony to provide some statistical context; the undersigned finds it wholly unreliable. Similarly, absent from the record is any credible evidence that Mr. Grasso was subjected to retaliation after filing the Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 27th day of October, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 27th day of October, 2014. COPIES FURNISHED: William H. Roberts, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 (eServed) Dominic A. Grasso 22500 Middleton Drive Boca Raton, Florida 33428 (eServed)
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
