The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
The Issue The issues presented in this action concern the Petitioner's failure to renew the Respondent's Florida Farm Labor Contractor Certificate of Registration for the year 1981. The refusal to renew the certificate is premised upon the alleged failure on the part of the Respondent to furnish Felix Munoz and others with an itemized statement of deductions made from their payments for rent, and loans owed to the Petitioner, and by doing so purportedly acting contrary to Subsection 450.33(7), Florida Statutes. In addition, it is alleged, as a ground for refusal to renew the certificate, that Raul Saldivar, Jr., failed to distribute when due all monies or other items of value entrusted him by third persons for such purpose in violation of Subsection 450.33(2), Florida Statutes, and Rule 385-4.08(8)(a), Florida Administrative Code, by receiving payroll checks payable to Arnulfo Ramirez, Esteban Guerraro, Carmen Cruz, Juan Cruz, Santos Martinez, and Leonel Flores; further, that Respondent took the payroll checks in the absence of the farm workers, endorsed and deposited the checks to his bank account. FINDINGS OF FACT 1/ In the years 1979 and 1980, the Respondent had been granted a Florida Farm Labor Contractor Certificate of Registration from the State Department of Labor and Employment Security in keeping with the terms and conditions of Chapter 450, Florida Statutes. When Saldivar applied for the renewal of his Florida Farm Labor Contractor Certificate of Registration for 1981, he was refused renewal for the reasons set forth in the issues statement of this Recommended Order. The Respondent has, in all other respects, complied with the necessary conditions for his relicensure. Beginning in August, 1979, and continuing into 1980, the Respondent was a member of a partnership known as R & S Sons. Particularly in the year 1980, Saldivar, as a member of the partnership, was involved in providing farm labor employees to various tomato growers (Corkscrew Growers, Greener's Farm, C & G Farms, Johnson's Farm, Harvey Brothers, and R & S Sons, which was the partnership farm.) There was no written contract between the growers and Saldivar. Each grower would pay Saldivar for transporting the farm laborers to the growers' farms, and in addition, pay Saldivar for running a labor camp, that is, the place at which the farm laborers resided when they were not employed picking tomatoes. This latter item was the payment for rent for the laborers. The Respondent was also paid by the growers for the units of tomatoes picked by the laborers on an increment payment basis known as a "bin." The Respondent maintained a list of farm laborers through the device of a time card for each employee that worked for a week or mere for one of the growers. Those farm employees had Social Security cards and the growers furnished Workers' Compensation Insurance coverage for the benefit of the farm laborers. There were approximately 200 farm laborers in the category being provided by the Respondent's organization. The drivers of the tomato hauling trucks worked for the growers but the trucks belonged to the Saldivar organization and the picking buckets were also provided by this latter group. The farm laborers were paid by checks issued by the various growers. They were made up from time records maintained by the Respondent's organization. The check had attached to it a stub indicating the amount of pay, and the amount of Social Security deductions and the stub was available to be maintained by the employee. The information placed on the time records was gained from field supervisors who were employees of the growers. (Although the growers had field supervisors immediately in charge of the farm laborers, Saldivar was the overall coordinator for the activities of these laborers.) No withholding amount was taken out of the checks of the laborers other than Social Security. The payroll records of the Respondent would indicate the net earnings and gross amount paid to each farm laborer. Payment to the farm laborers was made at the farm labor camp managed by the Respondent. The process for disbursing the checks was to call the laborer by name and Saldivar would hand the check to the laborer. One of the farm laborers who lived at the Saldivar camp and picked tomatoes for a grower in the area was Felix Munoz. Munoz arrived at the Saldivar camp in August, 1979. Saldivar, at that point, loaned Munoz money to pay for Munoz's transportation to Florida. There was no repayment of the travel loan for a period of time for reason of unavailability of work for Munoz. In late September, Munoz began to repay the loan, and the method of repayment was at the time wherein the Respondent disbursed the payroll check from the grower to Munoz. Munoz would in turn endorse the check over to the Respondent and receive cash in the face amount of the check, and then give the Respondent some of that cash as repayment for the loan. Munoz was not provided a statement of the amount repaid on the loan. Respondent did have the amount written on a piece of paper over which he had control. The same loan arrangements for transportation that were involved with the laborer Munoz occurred with other farm laborers living in the Saldivar camp, and the same method was utilized for handling the manner of repayment of the indebtedness, and for recording the matters of the indebtedness. Munoz and other farm laborers also paid the Respondent rent for living at the Respondent's farm labor camp and the rent was paid from the proceeds of the checks for their efforts as tomato pickers. Munoz and others were not given statements of the amount they had paid to Saldivar for rent. Arnulfo Ramirez, Esteban Guerrero, Carnen Cruz, Juan Cruz, Santos Martinez and Leonel Flores were farm laborers who arrived at the Saldivar camp in December, 1979. These individuals, as with others spoken to above, were loaned money to pay for their transportation costs to Florida. The Respondent loaned them the money, and they in turn, agreed to repay the transportation loan from salaries earned and by the method identified before. These individuals had left the area of the State when the growers issued their last paycheck. Therefore, Respondent picked up the paychecks from the growers, and acting on the advice of counsel, endorsed the farm laborers' names to the checks and deposited them in the Respondent's account and the proceeds were used as credit against the transportation loans owed by these individuals.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a registered farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes with Social Security number 426-98-6045 and certificate number 06506 with an expiration date of March 31, 1987. On November 20, 1986, at 8:30 a.m. at a road block north of Zolfo Springs, Florida at the intersection of State Highway number 64 and U.S. Highway number 17 in Hardee County, Florida a 1978 Ford pickup truck registered to Edgar T. Coleman, Post Office Box 5, Umatilla, Florida, license number 778 ETK, Vehicle Identification Number F15HKACA8834, driven by Joe Carl Stephens, was found to be transporting seven (7) farm workers. There was no application for certification for either Joe Carl Stephens or Edgar T. Coleman posted in the 1978 Ford pickup truck referred to in paragraph 2 and the truck at that time was not registered with Petitioner under Chapter 450, Florida Statutes. Although Joe Carl Stephens later obtained certification as a farm labor contractor, he was not a certified farm labor contract as that term is defined in Section 450.28(1), Florida Statutes at the time he was stopped in the road block. At the time Larry Coker, Compliance Officer, prepared the complaint against Joe Carl Stephens, approximately 8:30 a.m., November 20, 1986, there was no evidence filed with Petitioner showing the 1978 Ford pick-up being covered by the liability insurance policy of Respondent or Joe Carl Stephens. Additionally, the Petitioner had no evidence that the truck had been inspected for compliance with the requirements and specifications established in Section 316.620, Florida Statutes and there was no valid inspection sticker displayed on the truck. An inspection of the truck at the road block revealed that: (a) the seats for the passenger in the back of the truck were not secured; (b) the camper top covering the bed of the truck was less than 60 inches above the floor; (c) the tailgate (exit for workers in back) would not close properly and was held closed with a rope and; (d) there was no communication device between the back area of truck and front area of the truck where driver was located. At 1:00 p.m. on November 20, 1986, Edgar T. Coleman arrived at Petitioner's Wauchula, Florida office with an inspection certificate and, although undated, there was credible evidence that it was completed on November 20, 1986 after the complaint was filed, and an insurance binder completed at 11:00 a.m. on November 20, 1986 adding Respondent's 1978 Ford truck identified in paragraph 2 above to his existing vehicle liability insurance policy. At 1:00 p.m. on November 20, 1986, Larry Coker filed a Farm Labor Contractor Registration Complaint on Respondent listing violations under Sections 450.33(4)(a),(5) and (9) and 450.35, Florida Statutes. Although there was evidence that Joe Carl Stephens was employed by Respondent and that Respondent paid the fee of $35.00 to Petitioner for Stephens to obtain his farm labor contractor's certificate, there was credible testimony from Respondent that he was not contracting with Stephens as a farm labor contractor as that term is defined in Section 450.28(1), Florida Statutes on November 20, 1986 but was dealing with Stephens as a farm worker and there was no extra compensation being paid to Stephens for driving the truck. There was insufficient evidence to show that Respondent was contracting with Stephens as a farm labor contractor. There was credible evidence that Respondent at all times material to this proceeding had hired, supervised and transported more than one (1) farm worker and had received compensation for such activities.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, enter a Final Order assessing an administrative fine of $750.00 against Respondent for violation of the requirements of Section 450.33(4)(a), (5) and (9), Florida Statutes and dismissing the charges of violating Section 450.35, Florida Statutes. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Security Tallahassee, Florida 32301 Mr. Edgar Coleman Post Office Box 5 Umatilla, Florida Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Respondent Five Brothers Produce Inc. is indebted to Petitioner for agricultural products and, if so, in what amount?
Findings Of Fact Petitioner grows tomatoes on its farm in Dade County. Jack Wishart is in charge of the farm's operations. Five Brothers Produce, Inc., is a dealer in agricultural products. At all times material hereto, Pete Johnson was responsible for buying and selling produce for Five Brothers. He was assisted by Robert Barbare. On Friday, January 19, 1990, Johnson met with Wishart at Petitioner's farm. During their meeting, they discussed the possibility of Five Brothers purchasing all of Petitioner's 6x7 tomatoes. They ultimately entered into a verbal agreement concerning the matter. Under the terms of the agreement, Five Brothers agreed to purchase from Petitioner, and Petitioner agreed to sell to Five Brothers, Petitioner's supply of 6x7 tomatoes, which consisted of 293 packages, for $26.00 a package. At the time, tomatoes were in scarce supply because of the damage that had been done to the South Florida tomato crop by the freeze of the prior month. As a result, the market price for U.S.#1 grade 6x7 tomatoes was $32.00 a package. Wishhart agreed to a lower price for Petitioner's 6x7 tomatoes because they were U.S.#2 grade. The 293 packages of tomatoes were delivered to Five Brothers on the following day, Saturday, January 20, 1990. Johnson had purchased the tomatoes for Five Brothers to resell to a customer in Atlanta, Georgia. Upon inspecting the tomatoes after their arrival at Five Brothers' loading dock in Florida City, Johnson determined that they did not meet the needs of this particular customer because, in Johnson's opinion, they were too ripe to be shipped out of state. Johnson thereupon telephoned Wishart to tell him that the tomatoes were not suitable for his Atlanta customer. Later that same day, January 20, 1990, pursuant to Johnson's instructions, Barbare, Five Brothers' "late night clerk," contacted Wishart and advised him that Five Brothers wanted to return the tomatoes to Petitioner. The gates of Petitioner's farm were closed, and Wishart so informed Barbare. He then asked Barbare to store the tomatoes in Five Brothers' cooler until they could be returned to Petitioner's farm. Barbare agreed to do so. Approximately a day or two later, Barbare again telephoned Wishart. He told Wishart that Five Brothers had found a customer to whom it could sell the tomatoes, which were still in Five Brothers' cooler. Wishart, in response, stated that Petitioner would lower its sale price and "take $20.00," instead of $26.00 as previously agreed, for the tomatoes. 1/ On Monday, January 22, 1990, Five Brothers consummated a deal with Leo Genecco & Sons, Inc., (Genecco) of Rochester, New York, which agreed to purchase the tomatoes from Five Brothers. 2/ The tomatoes were priced "open," that is, the price of the tomatoes was to be established after the sale. Five Brothers ultimately received $3,149.75 ($10.75 a package) for the 293 packages of 6x7 tomatoes it had sold to Genecco. It thereupon sent a check in that amount to Petitioner as payment for these tomatoes. In the transaction at issue in the instant case, Five Brothers was not acting as a broker or agent for Petitioner. It purchased the tomatoes from Petitioner. The sales price was initially $26.00 a package and was later reduced to $20.00 a package. Accordingly, for the 293 packages of tomatoes Petitioner sold Five Brothers, it should have received from Five Bothers $5,860.00, $2,710.25 more than it was paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Agriculture and Consumer Services enter a final order (1) finding that Five Brothers is indebted to Petitioner in the amount of $2,710.25, (2) directing Five Brothers to make payment to Petitioner in the amount of $2,710.25 within 15 days following the issuance of the order, and (3) announcing that, if such payment is not timely made, the Department will seek recovery from the Florida Farm Bureau Mutual Insurance Co., Five Brother's surety. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March, 1991. 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 18th day of March, 1991. COPIES FURNISHED: Jack Wishart Pine Islands Farms, Inc. Post Office Box 247 Goulds, Florida 33170 Pete Johnson Five Brothers Produce, Inc. Post Office Box 3592 Florida City, Florida 33034 Florida Farm Bureau Mutual Insurance Co. 5700 Southwest 34th Street Gainesville, Florida 32608 Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue is whether respondent, Eugene Martinez, should have a $1,500 civil penalty imposed for allegedly violating Sections 450.33(5) and and 450.35, Florida Statutes (1989)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on the morning of January 29, 1990, when Larry Coker, a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made a routine inspection of a citrus harvesting crew working in an orange grove owned by Adrian Chapman and located one-half mile east of State Road 39 in DeSoto County, Florida. The purpose of the inspection was to determine whether the crew and its supervising contractor were in compliance with state regulations. Upon entering the premises, Coker observed a crew of approximately seventeen workers harvesting fruit in the citrus grove. An individual by the name of Martin R. Olvera was operating a high lift at the work site. Coker approached Olvera and asked him who was the farm labor contractor for the crew. Olvera responded that the licensed farm contractor was respondent, Eugene Martinez, but that Martinez had authorized him (Olvera) to supervise the crew that day in Martinez's absence. Olvera acknowledged that he was being paid $40 per day by respondent to supervise the loading of fruit and transport the workers from LaBelle to the grove. Division records reflect that Olvera is not licensed by the Division to perform those activities. A few minutes after Coker completed his inspection, respondent arrived at the work site. He readily acknowledged that Olvera was acting as a farm labor contractor without a license. By allowing Olvera to supervise a crew without a proper license, respondent used an unregistered farm labor contractor in contravention of the law. Olvera had transported the workers to the field that day in respondent's 1973 Ford bus. Respondent acknowledged that he did not have the proper liability insurance on the vehicle or the required inspection sticker. Both are required by law and agency rules. After being issued a citation that morning, respondent obtained the necessary insurance on his vehicle that afternoon. A vehicle inspection was obtained two days later. In addition, respondent initiated the necessary paperwork for Olvera to become a registered farm labor contractor. Because of those prompt efforts to satisfy Division requirements, respondent asked that he be given leniency on any civil fine. He has been unable to work since losing his right leg in an accident in May 1990 and is presently experiencing financial problems. There is no evidence that respondent has ever been disciplined by the Division for a violation of the law or agency rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent Eugene Martinez has violated Sections 450.33(5) and (9) and 450.35, Florida Statutes (1989). It is further recommended that respondent be fined $600, such fine to be paid within thirty days from date of the final order entered by the Division. DONE and ENTERED this 9 day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9 day of November, 1990. APPENDIX Petitioner: Partially adopted in findings of fact 1 and 2. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where a finding of fact has been partially used, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant or not supported by the evidence. COPIES FURNISHED: Frances R. Rivera, Esquire The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, FL 32399-0657 Mr. Eugene Martinez P. O. Box 2194 LaBelle, FL 33935 Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Steven D. Barron, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658
Conclusions The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The complaint alleges, the Respondent admits and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The complaint alleges, the Respondent admits and I find that on or about December 2, 1976, the Public Employees Relations Commission issued a certification certifying the Charging Party as the exclusive bargaining representative for the public employees in the following unit: INCLUDED: Patrolmen, Patrolmen 1st class, Master Patrolmen, Evidence Technician, and Traffic Enforcement officer. EXCLUDED: All other employees of the Ocala Police Department including Sergeants who are shift commanders. The pleadings establish that during 1972, the Respondent, by and through its City Council, promulgated a City Ordinance (Chapter 13B of the Ocala Code) which regulates labor relations for its employees. Chapter 13B has remained in full force and effect and has never been approved by the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes (1975). Among other things, the ordinance provides that: "Solicitation for membership in a labor organization or the collection of dues therefor, or other internal affairs of a labor organization shall not be con- ducted by employees on working time, or on city premises. Labor organization literature, pamphlets, handbills and the like shall not be distributed in the work areas of the city premises at any time." (See Section 13B-8.) A summary review of the parties' joint exhibits demonstrate that Chapter 13B attempts to regulate nearly all aspects of a collective bargaining relationship. In PERC v. The City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) the court determined that an entity may not assume jurisdiction of a public employee bargaining procedure until PERC has approved that procedure. In this case, no such approval has been granted by PERC as it is required pursuant to 447.603, Florida Statutes (1975). Further comparison of the provisions of Chapter 13B of the Ocala Code and Chapter 447, Florida Statutes, lends support to the conclusion that Respondent's employees' collective bargaining rights are not on a parity with those rights guaranteed them by Chapter 447, Florida Statutes. For example, 13B-1(c) of the ordinance defines "supervisor" and section 13B-1(b) defines "employee". Supervisors are excluded from the definition of employee and thereby from collective bargaining whereas Chapter 447 contains no definition of supervisor and the Commission consistently determines that supervisors are entitled to protections guaranteed by Chapter 447. See CWA and Hillsborough County Hospital and Welfare Board, case no. 8H- RC-752-0175, 2 FPER 46 (1976); Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 2 FPER 72 (1976). Additional distinctions are found respecting the definition of confidential employees and the determination by despondent in its code of "bargainable" subjects. It was noted that Respondent does not consider itself required to negotiate with respect to wages, hours and terms and conditions of employment. See the May Department Stores Co., 191 NLRB 928 (1972). While Chapter 447 vests all authority respecting appropriate unit placement of employees with PERC, Chapter 13B-2(b)(1) authorized Respondent's City Manager to make such determinations. A further examination of Chapter 13B of the Ocala Code reveals that it makes a striking distinction between the authority guaranteed employees respecting the proper bounds for solicitation-distribution rules. Chapter 447.509, Florida Statutes, provides in pertinent part that during an employee's lunch hour, an employer may not restrict solicitation and distribution whereas Chapter 13B of the Respondent's Code restricts solicitation and distribution during working time and on the premises of the City, making no exception or distinction for lunch breaks and therefore Respondent's maintenance of such provisions amounts to unlawful interference, restraint and coercion within the meaning of Section 447.501(1)(a), Florida Statutes. Although the Respondent defends in part on the fact that no employee had been disciplined for violating the above referenced rules, legions of cases have held that the maintenance, without enforcement of an overly broad solicitation-distribution rule constitutes an unfair labor practice. (See for example Essex International, Inc., 211 NLRB 934, 86 LRRM 1411; Dreis and Krump Manufacturing, Inc., 221 NLRB 309, 90 LRRM 1647 (1975).
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to: A. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by the Commission, a notice substantially providing: that it will not in any like or related manner interfere with, restrain, or coerce its employees in the exercise of any of the rights guaranteed them under the Florida Public Employees Relations Act; that it will upon request of the above-named employee organization, rescind the applicability of Chapter 13B of the Ocala Code as it relates to the regulation of organizational rights of employees, without having been first approved by the Commission. RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Seymour H. Rowland, Jr., Esquire 105 Legal Center 19 N.W. Pine Avenue Ocala, Florida 32670 Jane Rigler, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33142
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued against him by Petitioner? If so, what penalty should imposed?
Findings Of Fact At all times material hereto, Respondent has held a farm labor contractor certificate of registration issued by Petitioner. Prior to November 13, 1990, his certificate did not authorize him to arrange or provide transportation for farmworkers. On November 13, 1990, his certificate was amended to reflect that he was henceforth "transportation authorized." Carleen Willis has been a Crew Chief Compliance Officer with Petitioner for the past five years. In her capacity as a Crew Chief Compliance Officer, she monitors the activities and operations of farm labor contractors in the field to ascertain whether they are in compliance with the various statutory and rule provisions regulating their conduct. Events of October 25, 1989 On October 25, 1989, while making a routine visit to the field, Willis encountered Respondent supervising approximately 30 farmworkers who were planting cane for United States Sugar Corporation (USSC). Respondent had recruited these workers for USSC. He also had provided them with transportation in his 1979 International Bus, notwithstanding that he was not, at the time, "transportation authorized" inasmuch as he had submitted to Petitioner neither proof that this vehicle was properly insured, nor proof that it had been inspected and found in compliance with applicable safety standards. For his services, Respondent was paid $100.00 a day by USSC. The bus used to transport the farmworkers under Respondent's supervision was driven by Jean Baptiste Pierre. Pierre, who received compensation from Respondent for transporting the workers, did not then hold a current farm labor contractor certificate of registration issued by Petitioner. Respondent did not have with him his certificate of registration and therefore was unable to produce it when Willis asked him to show it to her during her field inspection. Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by, among other things, "[f]ail[ing] to exhibit certificate," "[f]ail[ing] to assure safety of transportation vehicles," "[f]ail[ing] to obtain prescribed vehicle insurance," and "[u]tilization of unregistered crewleader." Events of January 30, 1990 On January 30, 1990, Willis again encountered Respondent in the field. Respondent was working as an independent contractor for USSC, as he had been at the time of their earlier meeting on October 25, 1989. On this occasion, he was en route to Clewiston with a group of farmworkers who had been recruited to plant cane. They were travelling in Respondent's 1979 International Bus. Respondent had yet to submit proof that the vehicle was properly insured or that it had passed the necessary safety inspection. Accordingly, on this date, he still was not "transportation authorized." Following her inspection, Willis gave Respondent a citation charging him with violating Florida law by "[f]ail[ing] to assure safety of transportation vehicles," and "[f]ail[ing] to obtain prescribed vehicle insurance." Events of March 15, 1990 On March 15, 1990, Respondent, for a fee, again used his 1979 International Bus to provide transportation to a group of farmworkers. As of March 15, 1990, Respondent still had not submitted adequate proof that his vehicle met the applicable safety requirements. He therefore remained "transportation unauthorized." Consequently, he was again cited by Willis, who on this date had paid him another visit in the field, for "[f]ail[ing] to assure safety of transportation vehicles." Record of Prior Violations In 1986, Respondent was cited by Petitioner for acting as a farm labor contractor without being registered to do so. He recived a letter of warning for this violation. On April 3, 1989, Respondent received a citation from Petitioner for failing to post and exhibit his certificate of registration, failing to assure the safety of the vehicle he was using to transport farmworkers, and failing to obtain the prescribed insurance for this vehicle. For these violations, he also received a letter of warning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and imposing a civil penalty in the amount of $2,250.00 for these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of March, 1991. 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 13th day of March, 1991.
Findings Of Fact Respondent is a cooperative association of 54 farm members that is engaged in the State of Florida in the business of harvesting sugar cane and the milling of raw sugar for its members. Respondent is divided for organizational purposes into a mill division and an agricultural division. Petitioner's employment with Respondent was exclusively with its agricultural division. The agricultural division is divided into a harvesting department, a transportation department, and an equipment maintenance and repair department. The equipment maintenance and repair department has a service center, three field operations, a truck and trailer maintenance repair shop, and a machinery maintenance repair shop. There are approximately 300 vehicles owned by Respondent, including large tractor trailers used for hauling sugar cane. Petitioner was initially hired on September 29, 1975, in the transportation department as a tractor-trailer operator. In November 1976, Petitioner was promoted to assistant truck foreman where his primary duty was dispatching trucks to haul harvested sugar cane from the field to the mill. This is a responsible position that involves calculation of the tonnage requirements of the mill which must be coordinated with the availability of product and drivers. In the early 1980's Petitioner began having problems with his immediate supervisor, LaVaughn Milligan. These problems continued to escalate since the supervisor believed that Petitioner was trying to undermine his authority and was making promises to the drivers that he could not keep. By 1985, Mr. Milligan was dissatisfied with Petitioner's job performance and was prepared to recommend the termination of his employment. At all times pertinent to these proceedings, Edward Mayo was the head of Respondent's maintenance and repair department. In 1985, a vacancy occurred in the position as truck and trailer maintenance and repair shop supervisor. There is a conflict in the evidence in that Petitioner testified that Mr. Milligan and Mr. Mayo asked him to accept the transfer, but Mr. Mayo testified that Petitioner requested the transfer. The testimony of Mr. Mayo is accepted as being more credible and it is found that Petitioner asked Mr. Mayo for a transfer to this vacant position. Mr. Mayo was aware of the problems that Petitioner was having with Mr. Milligan, but he decided to transfer Petitioner to this position despite these difficulties. Mr. Mayo recognized that Petitioner's difficulties with Mr. Milligan may have been the result of a personality conflict between the two men and he wanted to give Petitioner the opportunity to prove himself. The position Petitioner assumed in 1985 was the position he held when his employment was terminated. The truck and trailer repair and maintenance shop is responsible for the maintenance and repair of all of Respondent's vehicles and employs approximately 22 mechanics. Respondent was aware that Petitioner had no training or experience as a mechanic, and he was specifically instructed to make no mechanical decisions. Petitioner's responsibilities included the requisitions of parts, supplies, and equipment for his shop and the supervision of mechanic's work schedules. He was to act in a personnel management and administrative capacity. Petitioner satisfactorily performed his duties during his first year in the position. In late 1986, his job performance began to deteriorate and several complaints from different sources were made to Mr. Mayo about Petitioner's poor performance. Mr. Mayo became concerned about Petitioner's job performance and frequently discussed his concerns with Petitioner. Prior to October 1987, Respondent was unaware that Petitioner had a medical problem. Petitioner had been hospitalized in June 1987 while he was on vacation, but Respondent did not learn of that hospitalization until after October 1987. In October 1987, Petitioner was hospitalized for depression and for detoxification from his addiction to antidepressant drugs. Unknown to Respondent, Petitioner had been, for several years, suffering from anxiety, depression, and paranoia. Petitioner had experienced hallucinations and had been treated by several different physicians. He had been taking drugs for his conditions for some eight years, including Ativan, an antidepressant in the benezodiazpine family of drugs, to which he became addicted. Petitioner returned to work following his hospitalization in October 1987. He told Mr. Mayo that his hospitalization was related to the prolonged use of medication. Following return from his hospitalization in October 1987, Petitioner's job performance deteriorated to the point that he was unable to function at work and he could not perform his job. Petitioner had difficulty concentrating, demonstrated a short term memory deficit, and lacked energy. Petitioner began making mechanical decisions that he was not qualified to make and which posed a safety hazard. On December 10, 1987, Petitioner met with Dale Stacy, Respondent's Vice President of Agricultural Operations, Ray Campbell, Respondent's Personnel Manager, and Mr. Mayo. Petitioner was advised as to the deficiencies with his job performance. Respondent was willing to assist Petitioner and placed him on sick leave with pay until his doctors certified that it was medically sound for him to return to work. Medical assurances were requested out of a legitimate concern for the safety of Petitioner, Respondent's employees, and the general public. On December 22, 1987, Dr. Adele MacKay, Petitioner's psychologist, informed Respondent's assistant personnel manager that Petitioner was very anxious about being out of work and that she thought it would be best for Petitioner if he were allowed to return to work. Respondent was advised by Dr. Mackay that Petitioner may need support. On December 24, 1987, Petitioner was permitted to return to work. Mr. Mayo, Mr. Campbell, and Mr. Stacy continued to be concerned about Petitioner's ability to safely perform his job, but they also wanted to accommodate Petitioner because he was a long term employee. To achieve these ends, Arnie Raaum, Mr. Mayo's assistant and one of Petitioner's supervisors, was assigned the primary responsibility of monitoring Petitioner's performance to ensure that safety was not compromised and of providing assistance to Petitioner if necessary. In Mr. Raaum's absence, Louis Boglioli, another supervisor in the maintenance and repair department, was to perform these duties. In the absences of both Mr. Raaum and Mr. Boglioli, Mr. Mayo was to perform these duties. Between the time Mr. Raaum, Mr. Boglioli, and Mr. Mayo were assigned these duties and the termination of Petitioner's employment, Mr. Raaum spent considerable time in both monitoring Petitioner's performance and in correcting errors made by Petitioner. This assignment detracted from the ability of Mr. Raaum to perform his regular duties. Petitioner's condition and his ability to safely perform his job continued to deteriorate between December 1987 and December 1988. Despite Mr. Raaum's close supervision, many safety related incidents occurred which were the result of Petitioner's job performance. These incidents were documented in Petitioner's employment file, but there was no injury to any person or significant damage to property. By late 1988, Petitioner's condition had deteriorated to the point where he was unable to perform his job. He was unable to comprehend, remember, or follow instructions. In December 1988, Mr. Mayo, who had been following Petitioner's job performance, determined with Mr. Campbell and Mr. Stacy that Petitioner could not perform his job. Mr. Mayo had lost confidence in Petitioner's ability as a supervisor and felt that safety was being compromised by Petitioner's continued employment. Other job possibilities with Respondent were considered, but each possibility was rejected for legitimate business reasons. Petitioner believed that he had had a "nervous breakdown" and that he was capable of working in a position with less stress than his position as supervisor of the maintenance and repair shop. Because of this belief, Petitioner requested that he be transferred to his former position as an assistant truck foreman. This request was refused because of his previous difficulties in performing that job, because he was not capable of performing supervisory work, and because the position was not vacant. There were no supervisory level positions vacant that Petitioner was capable of filling. Petitioner's employment with Respondent was terminated on December 28, 1988, and he was given two months severance pay. Petitioner's termination was not a disciplinary matter for willful misconduct. Rather, Petitioner's employment with Respondent was terminated because Petitioner was not capable of performing his job duties.
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 dismissing Petitioner's charge of discrimination against Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of October, 1990. CLAUDE B. ARRINGTON 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 19th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 8-16 are rejected as being legal conclusions. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-10, 13, 15-16, 18-20, and 25 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 11-12. 17, and 21-24 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 26 are rejected as being recitation of testimony. The proposed findings of fact in paragraphs 27 and 28 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Isidro M. Garcia, Esquire Law Office of Joseph A. Vassallo, P.A. 3501 South Congress Avenue Lake Worth, Florida 33461 Margaret L. Cooper, Esquire Ruth P. Clements, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 Post Office Drawer E West Palm Beach, Florida 33402 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird Acting Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 NOTICE Of RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
