Findings Of Fact Petitioner was employed by the City of Chipley from April 16, 1982 until July 1, 1983, when he was terminated. Petitioner was suspended prior to termination by his supervisor on June 23, 1983. During the period of his employment, Petitioner worked as a laborer in the Public Works Department. His duties required physical labor including heavy lifting. On January 28, 1983. Petitioner injured his thumb and was assigned to light duty when it became apparent that his regular duties aggravated the injury. Petitioner returned to regular duties, but on March 22, 1983, he injured his back while loading cement bags. He was again assigned to light duty. These were essentially "make work" assignments since virtually all duties in Petitioner's department were of a heavy duty nature. Thus, Petitioner was considered unproductive by his supervisor during such periods. On April 11, 1983, his supervisor advised him that his employment with Respondent "looks dim" and that he should seek other employment. Petitioner refused to do so in the belief that no one else would hire someone with a "bad back." Petitioner was informed by a coworker that the Public Works supervisor did not want injured employees working for him and "runs them off" when they get hurt. Although Petitioner's injury was a factor in Respondent's decision to terminate him, this hearsay testimony was not supported by other evidence. Rather, competent evidence was introduced which established that several employees who have been injured continued to be employed by Respondent in the Public Works Department. Petitioner's work with Respondent was generally satisfactory. He received routine raises and his annual evaluation carried an overall satisfactory rating. He had some difficulty getting along with his supervisor and fellow employees, and the quantity of work he performed was no more than average even during periods when he was not injured. Petitioner's supervisor, the Director of Public Works, presented him with his evaluation form in late June, 1983. He discussed the evaluation with Petitioner and asked him to sign it. Petitioner refused, which his supervisor believed to be unreasonable and insubordinate. The Director of Public Works then advised Petitioner that he was fired. Respondent's Public Works Supervisory Committee held a meeting thereafter where the decision to terminate Petitioner was upheld. The committee consisted of the Mayor, a city council member and Petitioner's supervisor. Petitioner was present at the meeting and was permitted to state his views. Petitioner unreasonably refused to sign his evaluation which was satisfactory even though it contained a few somewhat critical comments. The reason for requiring Petitioner's signature was explained to him as signifying merely that he had seen the evaluation and that all portions had been completed prior to his review. The immediate basis for discharge was Petitioner's refusal to sign the evaluation form. However, the other factors noted above contributed to the termination decision of Petitioner's supervisor and the local review authority.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Complaint. DONE and ENTERED this 6th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1985. COPIES FURNISHED: Paul D. Srygley, Esq. 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 William J. Mongoven, Esq. Post Office Box 187 Chipley, Florida 32428 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana, Esq. General Counsel 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether the Juvenile Welfare Board of Pinellas County (Petitioner) should have treated John Bucci as a mandatory member of the Florida Retirement System from April 1984, through July 1988, and therefore, should be required to submit retroactive adjustments for retirement and social security based upon his earnings during this period.
Findings Of Fact The Petitioner is an independent taxing district created by Special Act in 1945 to provide funding in Pinellas County for services to children. It timely filed a request for hearing on the Respondent's decision to consider John Bucci a mandatory member of the Florida Retirement System (FRS) from April 1984, through July 1988. The position of the Petitioner is that John Bucci was an independent contractor, and therefore, should not be considered a mandatory member of the FRS. Bucci worked as a janitor for the Petitioner between April 1984, and July 1988. He opened the building in the morning, deactivated the building alarm, made coffee, cleaned the employee restrooms, emptied waste baskets, vacuumed and dusted. From time to time, he also painted and made minor repairs in the building, and took mail to the post office when directed to do so. While Bucci did not receive daily assignments, his duties were routine and had been worked out with representatives of Petitioner when he was initially employed. If there were problems with his cleaning, he would be told to reclean an area, and he was expected to take care of the problem as soon as possible. The Petitioner provided Bucci with all supplies and equipment necessary to do his job. While he worked with the Petitioner, Bucci did not have a written contract, but rather, he had an annually renewable verbal contract. He was paid on an hourly basis, and submitted a monthly record of hours worked each day, which was reviewed and approved for payment by Petitioner. Bucci received annual increases from the Petitioner, but did not negotiate these increases. The Petitioner simply gave him what it considered to be a cost of living increase each year. According to Petitioner, Bucci was not in an established position, and therefore, did not receive fringe benefits. At the time, Bucci was the only person working with the Petitioner which it considered to be an independent contractor. Subsequent to his leaving, Petitioner bid, and now has a written contract for janitorial services with an agency in Pinellas County that offers employment opportunities to retarded citizens. That agency provides all equipment and supplies necessary for janitorial duties. After several counseling sessions with Carole Gunnels, Petitioner's operations manager at the time, Bucci was terminated because of continued problems with his work. Thereafter, it was determined by the Division of Unemployment Compensation, Department of Labor and Employment Security, that he qualified for unemployment benefits. The Comptroller's Office of the State of Florida has issued Memorandum No. 7 (1988-89) regarding determinations of a person's status as an independent contractor or employee. In pertinent part, that Memorandum sets forth twenty factors to be considered in determining if sufficient control is present to establish an employee-employer relationship, and states: The Internal Revenue Service has provided guidance in making this determination in Revenue Ruling 87-41. It provides generally, that the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but as to how it shall be done. In this connection, it is not necessary that the employer actually direct and control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The Respondent has adopted Rule 22B-6.001(15), Florida Administrative Code, which defines the term "independent contractor" as an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and does not receive the fringe benefits offered by the employer. A consultant or independent contractor usually: is compensated from another salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises. In order to determine if Bucci should have been considered to be an employee of the Petitioner, rather than an independent contractor, the Respondent provided Petitioner with a copy of its Employment Relationship Questionnaire, which Petitioner completed on or about April 10, 1989. The information provided by Petitioner on this Questionnaire indicates that Bucci was required to follow regular routines or schedules, the Petitioner could change the methods by which he performed his work or otherwise direct him in the performance of his duties, the work was to be performed by Bucci personally, the Petitioner could discharge him at any time, and he could quit at any time. It was also indicated that Bucci was not filling a regularly established position, but was retained under an oral contract to perform personal services. Bucci did not work full-time with the Petitioner. Rather, he worked an average of between 4 to 5 hours a day with the Petitioner. On rare occasion during the time he was employed with the Petitioner, he did take other part-time cleaning jobs with other employers. However, he did not have any occupational license as a janitorial service, did not advertise as such, had no yellow page listing for janitorial services, and did not have any equipment or supplies necessary to carry out his duties, other than what Petitioner provided him. The characteristics, terms and conditions of Bucci's employment with the Petitioner from April 1984, through July 1988, support the Respondent's determination that he was an employee, rather than an independent contractor, and that he was, therefore, a mandatory member of the FRS.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order concluding that John Bucci was a mandatory member of the FRS, and as such denying Petitioner's request for relief. DONE AND ENTERED this 8th day of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1989. APPENDIX (DOAH CASE NO. 89-4067) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as purely procedural matters and not a relevant proposed finding of fact. 3-4. Rejected in Findings of Fact 2-5, 8-10. The Respondent did not timely file Proposed Findings of Fact. COPIES FURNISHED: Terry A. Smiljanich, Esquire P. O. Box 1578 St. Petersburg, FL 33731 Stanley M. Danek, Esquire General Counsel's Office 440 Carlton Building Tallahassee, FL 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus Aikens, Jr., Esquire General Counsel 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S, William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election. Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees; however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD). Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews. The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash. Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid. The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00 p.m. They are paid for a full eight hour work day. Parks Department employees, also in the PWD, commence work at 7:00 a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash. Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city. Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred. On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties. Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed. Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed. A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them. When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed. The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office. Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office. Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours. Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked: "Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work? Yeah; true. Q. Is that true? A. uh-huh. Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union? A. Him and some other people too." Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236) The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time. In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed. Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction. Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
Findings Of Fact The Public Works Department of the City of Margate has fifty-six established permanent positions and three part-time laborer positions. Six positions are unfilled at the present time. The department consist of the following employees: A director, a superintendent, a secretary, two clerk typists, an inventory clerk, a custodian, a foreman for grounds, a foreman for aquatic weed control, a foreman for buildings, a foreman for roads, a chief mechanic, ten equipment operators, two groundskeepers, three chemical applicators, four mechanics, two carpenters, one electrician, a painter, a mason, and twenty laborers (Exhibit 5). Each foreman has responsibility for a certain type of work and has from 8 to 12 employees working in his division. The chief mechanic has eight employees under him who operate on a shift basis in order that vehicle maintenance may be provided around the clock. The foreman and chief mechanic report through the superintendent to the director in a direct line of authority. The inventory clerk reports through the superintendent to the director (Exhibit 5). The Director exercises general supervision over all employees and the direction and administration of the department. Departmental responsibilities include the repair and maintenance of streets and sidewalks, city vehicles, city parks and pest control. Under the direction of the Mayor, the director is responsible for planning and administering the budget for the department, preparation of daily work schedules, preparation and submission of reports, procurement of supplies and materials, engineering and layout work and supervision of the repair and maintenance of property and equipment of the department. He is responsible for the formulation of policy of the department and has the primary role in personnel administration and employee relations for the department. Based upon interviews conducted by the superintendent, the director provides recommendations to the mayor as to the hiring and firing of personnel. He is empowered to take disciplinary action against employees. He holds weekly "foremens" meetings attended by himself, the superintendent, the inventory clerk, the four foremen, and the chief mechanic. At these meetings, various ideas are discussed and input is received from individuals attending the meeting as to their area of interest. It is primarily a meeting to discuss previous problems and solutions thereto and does not usually result in decisions involving policy affecting the entire department (Exhibit 6). The superintendent is the second in command in the department and serves as the acting director in the absence of the director. He exercises general supervision over all other personnel of the department and directs the daily activities of the department. He serves as the administrative assistant to the director and in this capacity is, in charge of personnel administration. He makes effective recommendations to the director concerning personnel and disciplinary matters, provides meaningful input into budget and policy formulation and reasonably can be expected to actively assist the director in the preparation for and conduct of collectively bargaining negotiations or to have a major role in the administration of any agreement resulting therefrom (Exhibit 7). The secretary is the personal secretary to the director who performs normal secretarial duties and also has access, to all confidential personnel files of the department. She takes and transcribes dictation of meetings at which confidential matters are discussed and would perform in a like manner to assist the director in confidential matters involving collective bargaining (Exhibit 8) One of the clerk-typists, similarly to the secretary, also has complete access to all budget policy and confidential personnel files in the same manner and virtually to the same extent as the secretary. The other clerk-typist position is under the Foreman for aquatic weed control and does not involve access to confidential information. The equipment operators, groundskeepers, chemical applicators, masons, carpenters, painters, electricians, and mechanics perform functions as are indicated by their titles. Groundskeepers normally are in charge of two or three men crews to cut and trim grassy areas and perform other duties in beautification of the city. They work alongside the laborers and are interchangeable with them. They exercise no real supervisory functions. In like manner, the equipment operators who drive the tractors, trucks and other mechanical equipment of the department are interchangeable with groundskeepers and perform basically the same functions. Chemical applicators mix and apply chemicals to canals and other bodies of water to destroy noxious weeds. They do not possess any special degree of expertise and merely carry out directions of their supervising foreman. Skilled personnel, such as masons, carpenters, painters, electricians, and mechanics perform maintenance work as required and do not exercise supervisory functions. The custodian is responsible for cleaning and maintenance duties at the city hall. Laborers perform unskilled labor on the grounds, roads, and buildings under the supervision of the foremen. The four foremen are each in charge of a division in the department. These divisions are grounds, roads, buildings and aquatic weed control. The first three are described as "area" foreman and basically perform interchangeable functions that generally include the maintenance and repair of all city-owned areas and properties including grass cutting, tree trimming, patching pot holes, painting, and major and minor repairs. They are immediately responsible to the superintendent and exercise general supervision over the employees assigned to their divisions. They attend weekly "foremens" meetings with the director as described heretofore and provide input at these meetings concerning their area of work. They directly assign jobs to the men under them and follow-up to insure that they have performed the task satisfactorily. They maintain hourly worksheets on the men and exercise first-line grievance functions. They resolve minor complaints independently, but can only make recommendations to the superintendent concerning major complaints and as to disciplinary sanctions. They have no effective role as to hiring or firing of personnel. They divide their employees into crews to cover the city in their particular area of responsibility. Although a crew in the grounds department, for example, would normally include the groundskeeper and a laborer or two laborers, the foreman determines the size of the crews and can use them in any manner he sees fit to accomplish the overall mission of the division. He prepares an evaluation on the performance of each employee every six months. Although the foremen work alongside of their men and were considered "working foremen" in the past, about six months ago it was determined that they should devote more time to supervisory responsibilities and do less actual physical labor. At this time, they still on occasion decide on their own to help out the workers under them. The foremen of the aquatic weed control division exercises somewhat more specialized functions than the other foremen in that he is required to be familiar with the mixing and dispensing of herbicides, pesticides, and algaecides for eradication of pests and aquatic plants in canals and waterways. Other than this specialized knowledge, he basically exercises the same responsibilities as the other foremen (Exhibits 8, 9, and 10). The chief mechanic is a "working" supervisor who oversees the servicing, overhauling, repairing, and preventive maintenance of the equipment, heavy vehicles and passenger cars of the city. He checks major equipment in the field to ascertain if repairs should be made there or in the shop, makes decisions as to what repairs should be done and where, decides what parts to replace, what parts to purchase, and those that should be built in the shop. He supervises the maintenance of various records pertaining to the vehicles and their use, replacement of tires and parts, and renders reports. He approves requisitions for parts and materials not carried in stock and ensures that work is covered by shop work orders. He plans the daily work program of his division, can adjust and readjust schedules to meet fluctuations and maintenance needs of equipment and availability of required personnel, and authorizes overtime. He administers his share of the department budget and sees that it is not exceeded. He has blanket authority to buy required vehicle parts and tools. He assigns work to three shifts in his division to maintain 24 hour repair capability. He is also responsible for the security of the Public Works building where offices are located and vehicles and equipment are kept. His supervisory functions are similar to those of the foremen with respect to assignment of work, responsibilities for accomplishment of his mission, input at weekly meetings concerning his area of responsibility and the like (Exhibit 12). The inventory clerk is responsible for dispensing all usable supplies on a day-to-day basis and maintains an inventory of all departmental supplies. He is responsible for the security of all items including vehicles and equipment. He receives, inspects and approves or disapproves all municipal deliveries. He advises the superintendent and director as to what materials have been used, how best the expenditure of supplies can be reduced, and maintains control records on time, materials, and labor for various jobs performed by the department. He makes an independent determination as to whether materials are available to other departments or if the request is unreasonable and then makes recommendations to the superintendent as to whether such request should be honored. He contributes suggestions for the conservation of supplies which normally are acted upon by higher authority. He exercises no supervisory functions and has no employees under him (Exhibit 11).
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $216 in grant funds expended in a manner inconsistent with Department regulations. DONE and ENTERED this 22nd day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Agnes Miramontes 301 North Oklahoma Street Bonifay, Florida 32425
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
