Findings Of Fact On March 14, 1984, an inspector for the Petitioner, examined gasoline storage facilities from which Respondent, Zippy Mart #145 was dispensing gasoline. This store is found at 12524 San Juan Boulevard, Jacksonville, Duval County, Florida, (This product that was being dispensed by the Respondent at this location was the subject of consumer complaint.) Subsequent testing of the product known as Zippy Unleaded, as taken from the storage tank, revealed a 90 percent evaporated temperature of 376 degrees Fahrenheit and an end point of 493 degrees Fahrenheit. This was in keeping with laboratory procedures of the Petitioner. These matters were retested showing 90 percent evaporated temperature of 379 degrees and a 489 degree Fahrenheit end point. In lieu of the confiscation of the three thousand gallons which remained in the subject tank, related to the unleaded fuel at the store location, Respondent was allowed to post a bond in the amount of a thousand dollars and to remove the product from the premises and place new product in the tank. The reason for the values as shown in the sample pertaining to the 90 percent evaporated temperature and end point was due to the presence of diesel fuel within the tank designated for unleaded gasoline. The product as dispensed from that tank would cause engine damage to the automobile using that fuel, as evidenced by knocking and poor acceleration.
Findings Of Fact The Petitioner, Vernon Thomas, who is black, began working at the Tampa plant of the Respondent, Davies Can Company, in 1971. By 1990, he was working as a mechanic in the production department. In April, 1990, the Respondent's three-year labor union contract with the United Steelworkers of America covering its plant in Tampa, Florida, was due to expire. Knowing it was opening three new plants closer to its new sources of supply of raw material (tin plate), the Respondent was unsure how long it would continue to operate the Tampa plant and would only agree to extend the union contract for one year. During quarterly profit-sharing meetings with the union and the Tampa plant employees, the Respondent kept the union and the employees apprised of the company's plans. All were aware of the distinct possibility that the Tampa plant would be closed at the expiration of the extended union contract in April, 1991. Some employees at the Tampa plant, primarily supervisory and office personnel, were transferred to one of the new plants during the course of the year. When office personnel ceased employment, they were replaced by temporary employees. Other positions in the new plants were being filled by new employees who applied directly to the new plants. At some point before the quarterly meeting on February 25, 1991, the Respondent made a decision to close the Tampa plant. At the quarterly meeting, the Respondent's director of employee relations, Joseph Frabotta, announced that the Tampa plant was being closed and that all Tampa employees were being permanently laid off. He stated that most would be laid off as of March 8, and the rest as of March 15, 1991. In response to questions regarding the availability of work at one of the Respondent's new plants, he also stated that he knew of no positions available at that time but that if anyone interested left an application for employment with him by the time he left Tampa on or about February 28, 1991, he would transmit the applications to the managers of those plants. After the general announcement at the meeting on February 25, 1991, individual interviews were scheduled to discuss the particulars of the benefits due individual employees. The Petitioner's interview was on February 27, 1991. As the senior hourly employee at the Tampa plant, the Petitioner was told that he would work until March 15, 1991. He also was told the particulars of the benefits due him. Finally, he again was told that there were no positions at the new plants available for the Petitioner at that time but that, if he was interested, he should leave a completed application for employment with Frabotta by the time he left Tampa on or about February 28, 1991, and it would be transmitted to the managers of those plants. During the Petitioner's individual interview on February 27, 1991, the Petitioner also raised the subject of a problem he was having with disability insurance benefits for a period of disability the Petitioner had suffered from approximately November 12, 1990, through January 1, 1991. The disability insurance policy provided by the Respondent for its eligible employees is provided through an insurance company, not by the Respondent itself directly. However, in order to insure proper follow up on behalf of its employees, the Respondent has a policy of having all claims forms mailed to its corporate offices in Solon, Ohio, for processing. During his period of disability, the Petitioner had asked the Tampa plant manager for the appropriate claims form. The plant manager said he would furnish the Petitioner one but never did. When the Petitioner returned to work on January 2, 1991, he again asked for the claims form. Again, the Petitioner was promised that one would be provided but none ever was provided. At his February 27, 1991, interview, the Petitioner reported all of this to Frabotta, whose investigation verified the Petitioner's information. Frabotta promptly arranged for the Petitioner's claims form to be submitted for processing, and in May, 1991, the Petitioner received the disability benefits to which he was due. One other black employee was not given disability claims forms, for a disability in June, 1990, because the supervisor of the personnel office at the Tampa plant told the employee that he was not eligible. When the Petitioner told his fellow employee about his individual interview with Frabotta on February 27, 1991, the fellow employee told the Petitioner about his June, 1990, disability. The Petitioner recommended that the fellow employee ask Frabotta about it during his individual interview. Frabotta investigated the matter, and the benefits eventually were paid. The Petitioner understands that, most of the time, disability benefits are paid within a two to three weeks after submission of a claim, and he is aware of some whites who timely received disability benefits. With all the claims forms the Respondent's corporate headquarters processes for employees, errors occasionally are made, having nothing to do with race, and Frabotta has to become involved in correcting errors, just as he did in the case of the Petitioner and his fellow black employee. The Petitioner did not prove that the delay he and his fellow black employee experienced in receiving disability benefits was the result of racial discrimination. The Petitioner did not give Frabotta an application for employment with one of the new plants before Frabotta left Tampa to return to Ohio. Instead, he mailed an application on or about March 25, which Frabotta did not receive until early April, 1991. On March 15, 1991, the Petitioner was asked to work one more day to prepare the equipment for shipment the following day to the new plant in Georgia. His last day at work was March 16, 1991. Soon after his last day at work, the Petitioner came under the belief that white hourly employees from the Tampa plant had been transferred to the new plant in Georgia. As the senior hourly employee at the Tampa plant, the Petitioner believed he was entitled to the work under the union contract. But the union contract did not apply at any plant other than Tampa, and it expired in April, 1991. The employees hired at the Georgia plant had given applications to Frabotta before February 28, 1991, and were hired by the Georgia plant manager when a need arose for their services on or about March 18, 1991, at a point in time before the Petitioner submitted his application. In addition to the two white hourly employees, a black hourly employee also was hired in that fashion at the Georgia plant. Later, the Petitioner learned that two white hourly employees were continued on the payroll for a certain period of time. The Petitioner believed that, if any work was available for hourly employees in Tampa, he should have gotten it under the terms of the union contract since he had seniority. But there was another provision in the union contract, known as the "super seniority" provision, under which the president and chief steward of the local union were to be kept on the payroll in the event of a reduction in the work force at the Tampa plant. These union officials were white. The local union insisted that these two people be kept on the payroll after March 16, 1991. (They were not paid after the expiration of the extended union contract in April, 1991.
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 the Petition for Relief filed in this case. RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992.
Findings Of Fact In May, 1983, DOT advertised for bids to separately lease the 11 service stations on the Florida Turnpike. Prospective bidders were prequalified before being allowed to submit bids. Bids were to be awarded to the bidder submitting the highest responsible bid and based solely on the amount per gallon to be paid to DOT on each gallon of motor fuel sold at the service plaza. The existing leases were all due to expire and an attempt to get bids in 1982 had been dropped after litigation delayed completion of the bid process. Turnpike prices for motor fuels are regulated somewhat by DOT, in that the Turnpike prices must be comparable to prices at off-Turnpike stations in the vicinity which offer similar services. Those stations selected for comparative prices must be acceptable to the Turnpike station operator and DOT. Equipment at the existing service plazas has been in use for many years and in the bid offering in May, 1983, several new provisions were included, as were many provisions of the expiring leases. To insure competent and qualified service to motorists on the Turnpike, retained lease provisions require the stations to be open 24 hours per day, to provide wrecker service, and to have a mechanic on duty. Few off-Turnpike stations meet these requirements. Accordingly, "comparable" stations within SD miles east-west of the Turnpike and in the vicinity of a specific service plaza may not be readily available. The bid offering provided that these "comparable" stations will be selected by mutual agreement of the parties but makes no provision for settling a dispute between the lessor (DOT) and the lessee. This is significant because another of the lease provisions contained in the bid offering is that the prices at which the service plazas sell fuel must not exceed by more than two cents per gallon the prices at these selected comparable stations. New provisions in this bid offering required the successful bidder to replace all dispensing equipment (gas pumps) with modern equipment, and to provide for sale of motor fuels at self-service pumps. The bid offering contained no specifics as to where the self-service pumps are to be located with respect the existing service islands, whether self-service motor fuels are to be available by credit card or cash only sale, or whether there could be a different price for cash sales than for credit card sales. The bid offering provided that no one entity could be awarded the lease of more than five service stations on the Turnpike, and no bond was required to be posted by any bidder. DOT expected the successful high bidders to submit bids in the vicinity of eight cents per gallon. This was based on DOT's knowledge from surveys taken at frequent intervals over a long period of time, of the price motor fuels was selling bat comparable stations off the Turnpike; of the tank wagon costs of motor fuels to the station operators; of the sales of tires, batteries and accessories historically made by these stations, the profits from which are not included in the lease price; of the uncertainties inherent in the profits engendered by the to-be-offered self-service sales; other changes which increased the field of bidders; and the expected stability of motor fuel prices. When the bids were opened on September 12, 1953, the first, second, and third highest bids received for each of the 11 service plazas are as follows: Service Plaza First Second Third (Number) Highest Highest Highest Bid Bid Bid Snapper Creek (601) 13.51 12.34 5.40 Crocco, Inc. Gus Crocco William Crocco Pompano (611) 14.35 Crocco, Inc. 14.33 Gus Crocco 9.75 William Crocco Pompano (612) 14.33 Crocco, Inc. 12.76 Gus Crocco 9.20 Super Service West Palm Beach (623) 15.67 15.67 11.55 Gus Crocco Crocco, Inc. William Crocco West Palm Beach (624) 15.67 14.53 11.55 Gus Crocco Crocco, Inc. William Crocco Ft. Pierce (635) 15.67 14.83 13.90 Gus Crocco Crocco, Inc. Super Service Ft. Pierce (636) 15.67 14.53 12.40 Gus Crocco Crocco, Inc. WMG, Inc. Ft. Drum (647) 16.20 Super Service 15.67 Gus Crocco 14.53 Crocco, Inc. Canoe Creek (658) 15.67 Gus Crocco 14.90 Super Service 14.53 Crocco, Inc. Turkey Lake (669) 14.34 Gus Crocco 14.20 Super Service 13.43 Crocco, Inc. Okahumpka (670) 14.34 13.25 5.67 Crocco, Inc. Gus Crocco Gulf Oil Although Crocco, Inc., and Gus Crocco were the apparent high bidders for 10 of the 11 Turnpike service station leases, DOT, with only 20 days to award or reject bids, on October 3, 1983, issued a notice of intent to enter into leases with the high bidders. Before such leases could be executed, a petition to protest the award of these bids was filed by parities who are the intervenors herein, the case was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 83-3539. Gus Crocco and William Crocco are brothers, are shareholders in Crocco, Inc., are shareholders in WMG, Inc., and have operated service stations on the Florida Turnpike for the past several years. All entities named in the above sentence submitted bids for Turnpike leases at this offering. Super Service General Partnership, the high bidder for the lease at Ft. Drum service plaza, is composed of a partnership consisting of Ralph Girvin and two other partners. Girvin prepared the bid submitted by Super Service General Partnership which, at 16.02 cents per gallon of motor fuel sold, was the highest bid submitted for any lease. Gus Crocco, Crocco, Inc., William Crocco, and WMG, Inc., submitted the three highest bids for five of the 11 service station leases. During discovery in preparation for the hearing in Case No. 83-3539, it was disclosed that Gus Crocco prepared the bids submitted by Gus Crocco and Crocco, Inc.; that no market survey was taken by Gus Crocco or Ralph Girvin before establishing the selling prices for motor fuels upon which their bids were predicated; that the profit per gallon of motor fuel assumed by Crocco included a rebate from the supplier of approximately six cents per gallon even though no rebate has ever been given at a Turnpike service station for more than a short period of time; the profits to be made per gallon did not take into consideration county taxes that are applicable to some of the service plazas; that existing prices at stations accepted as comparable in the past were much lower than the sale prices which Gus Crocco and Ralph Girvin used to arrive at a bid price; that absent a requirement for the posting of a bond the high bidder could withdraw his bid without financial penalty or liability; that some communication between the Crocco brothers had taken place before the bids were submitted; that Ralph Girvin hand attempted to contact Gus and William Crocco before submitting his bid; that the data upon which Gus Crocco, Crocco, Inc., and Super Service General Partnership based their bids was insufficient to account for all expenses to be incurred; and that there was a high probability that the service station could not provide adequate service to the motorists while paying the price bid for the leases and selling motor fuels at a price comparable to that charged by off-Turnpike stations in the vicinity. This information was passed to DOT. Sam Roddenberry, Turnpike engineer for DOT, is the individual primarily responsible for the operation of the Turnpike in accordance with policies established by DOT. He was the DOT employee primarily responsible for the provisions of the bid proposals and lease, for the award of the lease to the highest qualified bidder, and for the policy changes, including the sale of motor fuel at self-service pumps. After receiving information discovered during trial preparation for Case No. 83-3539, Roddenberry compared Gus Crocco's projected selling price of $1.239 per gallon of regular leaded self-service gasoline with the 1983 average price in Jacksonville of $1.0991; compared the Crocco price estimate for unleaded self-service gasoline of $1.349 per gallon with the Jacksonville price of $1.1789; and the Crocco price estimate of $1.3996 for self-service super unleaded with the Jacksonville price of $1.2997. A similar comparison was made with respect to Super Service General Partnership's bid. These comparisons, the close relationship between the three high bidders at all stations (except for Super Service) and his knowledge that rebates, when given, are good only for short periods of time, led Roddenberry to conclude that all bids should be rejected. On October 1, 1984, Chapter 84-276, Laws of Florida, became effective. This discontinued the high-bid system upon which the bids here involved were solicited and substituted therefor a request for proposal (RFP) system upon which the Department selects the applicant deemed best qualified to satisfy the statutory criteria established by this statute. On June 25, 1984, each of the high bidders was notified by DOT that Respondent intended to withdraw its notice of intent to award leases and that it intended to reject all bids. These bidders at the same time were advised of their right to a Chapter 120.57 hearing, and the petitions for hearing, here involved, followed.
Findings Of Fact Puckett reported a discharge of used oil at its site when it filed an early detective incentive program notification application with DER. Puckett, thus, advised DER that it would clean up its site and apply for reimbursement of the costs of that cleanup in accordance with Section 376.3071(12), Florida Statutes (Supp. 1986). When it received Puckett's application, DER conducted an investigation of the site and determined that a discharge of used automotive crankcase oil had occurred there. DER was advised by Puckett that the discharge had occurred when used automotive crankcase oil was drained into a service bay floor drain. Puckett and the site operator placed the used oil in the drain in the belief that a storage tank was connected to the floor drain to receive and safely store the used oil. Unknown to Puckett, however, the storage tanks previously connected to that floor drain had been removed by a former site owner or operator. The Recommended Order entered by the Hearing Officer contains findings to the effect that Puckett was unaware that storage tanks did not any longer connect with the floor drain in question, in part, at least, because it is the custom and practice in the service station business that used oil collecting persons or entities collect from such storage tanks after the service station hours of operation. Therefore, it was customary for the operator of a service station not to be aware of when used oil was removed from storage tanks. Upon learning that used oil had been spilled at the site due to the lack of a storage tank, where formerly one had been in place, the subject application was filed. DER conducted its site investigation and after it was concluded, on April 16, 1987, issued an order denying reimbursement eligibility to Puckett. DER took this position because it opined that used oil is not "petroleum" or a "petroleum product", as those terms and substances are defined in Subsections 376.301(9)(10), Florida Statutes (Supp. 1986). Puckett then filed a timely petition for administrative hearing as a result of that denial of eligibility. The cause was duly transmitted to the undersigned Hearing Officer for conduct of a Section 120.57, Florida Statutes, formal proceeding. In the discovery phase of that proceeding, requests for admissions were served by Puckett upon DER, in response to which DER admitted that the sole basis for denial of reimbursement eligibility was the fact that the substance discharged was used oil, which, DER contended was not "petroleum" or a "petroleum product". DER, thus, took the position that the used oil in question was beyond the scope of reimbursement eligibility allowed by the "Super Act," the statutory provisions cited above. The cause was duly scheduled for hearing for September 9-10, 1987. Shortly prior to the hearing, on August 31, 1987, DER filed a motion for continuance seeking an opportunity thereby to have time to explore the question of whether Puckett was "grossly negligent" in the maintenance of its facility, which is a ground for disqualification from Super Act reimbursement eligibility. This was an issue which had not theretofore been raised in the proceeding. See Section 376.3071(9)(b)3., Florida Statutes (Supp. 1986). That motion for continuance was denied, as found and discussed in the Recommended Order in the underlying proceeding. The cause then came on for hearing as scheduled on September 9-10, 1987. A motion in limine filed by Puckett was granted at the hearing so as to preclude DER from raising any issue concerning "gross negligence" at hearing. The basis for the ruling was that DER had known of the circumstances surrounding the discharge for nearly one year, but that during the discovery process, DER assured Puckett that its position was that gross negligence would not be an issue in the proceedings and that the sole basis for its denial of the reimbursement application was that the substance discharged, being used oil, was not, in its view, "petroleum" or a "petroleum product". Following the hearing, the Hearing Officer issued the Recommended Order in question finding that used crankcase oil was, indeed, "petroleum", as well as being a "petroleum product", for the purposes of the definitions in the above- cited statutory provisions. It was thus recommended that Puckett be determined to be eligible to apply to DER for reimbursement of the cleanup costs involved. Puckett, 10 FALR at 5540. Certain findings and conclusions made in the Recommended Order are germane to the question of whether DER's actions with respect to the initial and final denial of Super Act eligibility had a reasonable basis in law and fact at the time the agency action was initiated and finally taken in the Final Order. Those findings include the findings in the Recommended Order that used crankcase oil consists of "petroleum", as that term is defined by Section 376.301(9), Florida Statutes (Supp. 1986), with particular emphasis on those findings and conclusions in the Recommended Order, incorporated by reference herein, concerning crankcase oil coming within the definition of "other hydrocarbons" for the reasons delineated in the Recommended Order. Further, DER's own expert witness admitted, and it was found by the Hearing Officer, that the predominant use of used oil is as a fuel, just as is gasoline, diesel, kerosene and certain other grades of fuel oil, which are specifically included in the statutory definition of "petroleum product". See page 20 of the Recommended Order and the transcript of the proceeding below, pages 362-363. It was also established without question that used oil is a "liquid," a "commodity" and a liquid fuel commodity for the reasons delineated in the Recommended Order. It was established further by the record in the proceeding on the merits, and found in the Recommended Order that used oil has no meaningful similarity to the substances specifically, statutorily excluded from the definition of "petroleum product", and that DER has had a policy encouraging the collection and recycling of used oil as a fuel. This was well-known and accepted by DER's own experts before the "policy makers" at DER, who engendered the subject initial agency action, took the position that used oil did not constitute petroleum or a petroleum product. Used oil has not been otherwise regulated as a hazardous waste. DER's interpretation of the statutory definition of "petroleum product" to the effect that the product, as it was initially produced, must be sold or used as a fuel in order to meet that definition, in fact, imposes an additional inconsistent criteria for determining what types of substances are included within the meaning of the term, which criteria is not enunciated in the statute, either expressly or implicitly. DER's restrictive interpretation of the statute further disregards the language of the Super Act. Sections 376.3071(12)(a) and 376.315, Florida Statutes (Supp. 1986), which requires it to give "such liberal construction to the statute as will accomplish the purposes set forth in this subsection", in other words, to promote the cleanup of as many contamination sites as possible. Further, it was established by the record in the proceeding on the merits and concluded in the Recommended Order that the restrictive interpretation of the statute adopted by DER was inconsistent with existing agency policy which encourages used oil collection and recycling and that the interpretation "is clearly not one expressed or reasonably implied on the face of the statute" and "would frustrate the clear, legislative impetus of the Super Act" and is "illogical". More significantly, DER's policy makers responsible for the initial agency action and decision that used oil is not "petroleum" or a "petroleum product" did not take counsel with certain key expert personnel in DER's own used oil section concerning whether used oil is "petroleum" or a "petroleum product" prior to the initial denial of eligibility and the proceeding and hearing before the Hearing Officer. In fact, the policy makers were apparently unaware of facts critical to the subject determination and to the fact that DER's proposed (and, indeed, final) action was inconsistent with agency policy concerning treatment and definition of used oil, which DER's "in- house" experts had been aware of all along. These findings and conclusions in the Recommended Order demonstrate clearly and in detail why DER's initial agency action and position through the conclusion of the hearing, concerning rejection of Puckett's reimbursement eligibility, did not have a reasonable basis in law and fact. Those findings and conclusions appearing at pages 18-36 of the Recommended Order, which has been stipulated into the record of the instant proceeding, are incorporated by reference and adopted in the findings of fact and conclusions of law in this Final Order. Despite the findings and conclusions in the Recommended Order, DER, in its Final Order, ultimately denied reimbursement eligibility. Puckett at page 5505. DER found in its Final Order that Super Act coverage is limited to "incidents related to storage", as opposed to incidents where a contaminant is discarded. DER also found that because Puckett did not have a "petroleum storage system" at the site, the discharge was not "related to storage", despite the facility operator's proven and found intention and belief, when he dumped the product in the floor drain, that he was "storing" the used oil in question. DER acknowledged the Hearing Officer's granting of Puckett's motion in limine, which precluded denial of reimbursement eligibility on "gross negligence" grounds, but stated that it was not denying eligibility on this ground at page 18 of its Final Order. Although DER acknowledged in its Final Order that its denial of eligibility did not depend on a finding of gross negligence, this acknowledgment, which appears to re- state its position, taken in the discovery phase, that gross negligence would not be raised as an issue by DER, and is an apparent acknowledgment of the ruling on the motion in limine, is somewhat belied by the following language from the Final Order: Although my decision to deny eligibility for reimbursement to Puckett does not depend on a finding of gross negligence on the part of Puckett, any site owner who fails to ascertain whether an oil drain fitting on site is actually connected to an operational used oil system now has clear notice that it allows used oil discharges to that drain fitting only at its own peril. It is not appropriate that state funds be expended to remediate contamination caused by reckless disregard for elementary waste disposal regulations. In the future, the department will continue to deny eligibility to any site where contamination has resulted from used oil discharges to land in the complete absence of a used oil storage system. (emphasis supplied) See pages 18 and 19 of the Final Order. Puckett then appealed that denial of reimbursement eligibility. The District Court of Appeals reversed DER, finding as follows: DER's assertion that Puckett's eligibility for cleanup reimbursement of the used oil discharge was dependent on whether storage was involved and whether the used oil would be reused or recycled was never made until the final agency order was entered. These issues were not raised by the pleadings, were not litigated at the hearing, were not considered by the Hearing Officer, and were not considered by the Hearing Officer's Recommended Order. In addition, the pleadings reflect that DER was asked in a written request for admission to admit the following: 'The Department's only basis for denial of Super Act eligibility for Puckett is that the reported discharge was used oil.' DER admitted that statement. This was the only issue created by the pleadings, and it was the only issue tried and determined by the Hearing Officer. DER cannot raise and decide for the first time in the final agency order issues not previously raised or considered. See Puckett, 549 So.2d at 722 (emphasis in original). The Court then remanded the proceeding to DER for entry of an order determining Puckett to be eligible to apply for reimbursement. Puckett also petitioned the appellate court for appellate attorney's fees pursuant to Section 120.57(1)(b)5., Florida Statutes, arguing that the Final Order was a "gross abuse" of agency discretion, a standard for granting of appellate attorney's fees under that statutory provision. The Court denied that motion on the basis that gross abuse of agency discretion had not been demonstrated. Although reliance on issues improperly raised for the first time in the Final Order may not have been a "gross abuse" of agency discretion supportive of an award of appellate costs and fees pursuant to the above- referenced statutory provision, it is found that DER has not justified as reasonable its rejection of eligibility on additional non-litigated or properly raised grounds in the Final Order. Therefore, DER's reliance on the new issues in the Final Order to deny reimbursement eligibility was not "substantially justified". After issuance of the Court's mandate, Puckett filed a petition for costs and fees pursuant to Section 57.111, Florida Statutes, initiating the instant proceeding. DER filed an untimely response conceding that Puckett was a "prevailing small business party" and the other criteria for award of fees and costs provided for in Section 57.111, Florida Statutes, with the exception that it did not concede that its denial of reimbursement eligibility in the related proceeding was not "substantially justified". DER did not dispute that the reasonable amount of costs and fees incurred by Puckett exceeded $15,000.00 nor did it assert that any special circumstances exist which would make an award of costs and fees unjust nor that it was a nominal party only. Since Puckett's petition was not timely responded to and since its Motion for Summary Final Order thereon was not answered by DER, the Hearing Officer issued a Summary Final Order awarding $15,000.00 in costs and fees to Puckett. DER appealed and the First District Court of Appeals reversed the award and remanded the proceedings to the Hearing Officer to consider DER's position on the issue of award of fees and costs, based generally upon the Court's view that DER's non- timely response to the petition for fees and costs should be excused, as more particularly delineated in the Court's opinion in Department of Environmental Regulation v. Puckett Oil Company, Inc., 16 FLW D.926 (Fla. 1st DCA April 3, 1991). The cause involving fees and costs, thus, became at issue before the Hearing Officer once again. In the prehearing filings, the parties limited the issues to that concerning whether DER's action on the reimbursement eligibility question was "substantially justified". On July 30, 1991, a hearing was held on this matter, during which the parties presented their arguments and stipulated that the record in this proceeding would be the record on appeal, including the Hearing Officer's Recommended Order in the reimbursement eligibility case.
The Issue At issue in this proceeding is whether Respondent, a tool company, should be required to repay funds that the Department of Labor and Employment Security, Division of Workforce and Employment Opportunity (the "Department") alleges were erroneously paid under a North American Free Trade Agreement- Transitional Adjustment Assistance ("NAFTA" or "NAFTA-TAA") job training program for equipment that Respondent provided to two NAFTA-TAA trainees.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: The Department administers NAFTA-TAA, a job training program established under the provisions of the North American Free Trade Agreement and funded by the federal government. The program provides vocational training for employees adversely affected by trade agreements made by the United States with Canada and Latin America. Once a business is certified as "NAFTA eligible" based upon diminished employment opportunities attributable to international trade, the affected employees are referred to the Department for evaluation by a local NAFTA coordinator. In consultation with the Department's local NAFTA coordinator, a participant chooses from training programs taught at various public and private educational institutions and vocational training facilities. The student is provided a training allowance that includes the cost of tuition, books and fees. The Department arranges to pay training costs directly, and to pay vendors for the required books, tools and supplies. In this case, the Department alleges that two students participating in the NAFTA program purchased tools from Respondent that were not required for their training as automotive technicians. The Department alleges that, by providing tools not required for training and obtaining reimbursement therefor from the Department, Respondent acted in violation of the "rules and practices" of the NAFTA program. The Department offered no evidence that it has promulgated rules related to its administration of the NAFTA- TAA program, and offered no evidence of a Florida statute or of federal statutes, rules or policies governing the Department's administration of the program. The Department produced no documentation to indicate that it has developed official written policies regarding its administration of the NAFTA-TAA program. Henry Broomfield, the Department's statewide TAA coordinator, testified as to the actual operation of the program. Mr. Broomfield stated that the program pays for tuition, books and supplies for up to 104 weeks. He testified that the participating schools are required to present a list of the books, tools and supplies that the student will need during training, and that reimbursement is limited to the items on that list. Mr. Broomfield testified that the list is limited to items required for training, and does not include tools that students may need in the field after they complete their training. The student and the Department's local TAA coordinator are provided with copies of the list. Charles Thackrah, an instructor at P-Tech, testified as to the development of the approved book, tool and supply list at his institution. The list was developed over time by Mr. Thackrah and his fellow instructors, and includes the minimum basic hand tools required to complete the objectives of the program. The list was not developed specifically for the NAFTA program, but is the minimum tool list for all students enrolled in the automotive service technology course. Mr. Thackrah stated that P-Tech does not require the purchase of tools outside the list. Mr. Broomfield testified that when a student needs particular items on the list, the student must contact the local TAA coordinator, who authorizes the purchase from a third party vendor. When the student receives the tools, the third party vendor sends the bill to the local TAA coordinator, who then forwards the invoice to the state office for final approval. Mr. Broomfield testified that a request for an unlisted tool must be made in writing by the student's instructor. The student brings the written request to the local TAA coordinator, who forwards it to Mr. Broomfield's office for final approval. The instructor must verify that the requested tool is necessary for training. The evidence established that, aside from one incident in which a student obtained approval for a special pair of welding shoes, neither of the students in question followed the approval procedure for unlisted tools set forth by Mr. Broomfield. On February 13, 1998, Howard Spangler of Largo was enrolled in the NAFTA-TAA program by the Department's local coordinator for the Clearwater area, Margaret Brewer. Mr. Spangler was enrolled for training as an automotive technician. Also on that date, Mr. Spangler received a letter approving his request for training. The letter stated that his training would be provided by P-Tech "at a cost not to exceed $4,400.00." The letter stated that this amount "includes tuition, books, supplies and fees." Also on February 13, 1998, Ms. Brewer provided Mr. Spangler with an "Applicant Acknowledgement Form" stating that $2,400 would be allotted for "books, equipment, supplies and/or tools. This is the total amount allowed for the entire length of your training, be it a one-week, or a two-year course." The form stated that "books, special equipment, tools and uniforms will be limited to those items required by the school for every student." The form also stated that when the amount allotted for training materials has been exhausted, any additional costs must be borne by the student. Mr. Spangler signed the form, acknowledging that its contents had been "fully discussed" with him. The evidence established that Mr. Spangler obtained from Respondent tools that were not on the approved list at a total price of $4,336.92, and that the Department paid Respondent for those purchases. Mr. Spangler testified that he was aware of the limits set forth in the letter and acknowledgement form, and of the approved list of tools, but also testified that Ms. Brewer told him that he could purchase items not on the list with his instructor's approval. He stated that Ms. Brewer never told him that her approval was required for purchases of tools not on the list. Mr. Spangler testified that he approached Ms. Brewer about a pair of special shoes for his welding course. Although the welding shoes were on the approved list, Mr. Spangler wanted Ms. Brewer's approval for his purchase because he paid more for them than the price shown on the list. Mr. Spangler testified that during this conversation he also asked Ms. Brewer about purchasing tools not on the list, and that Ms. Brewer told him that he needed only his instructor's signature to obtain tools he would need in the field. Mr. Spangler understood the $4,400 limit on tuition, books, supplies and fees. Notwithstanding the limit, he purchased over $4,000 in tools alone from Respondent. He stated that he relied on Ms. Brewer's advice in making these purchases. Mr. Spangler testified that it would be difficult to hold a job in the field with only the tools included on the approved list, and that Ms. Brewer clearly imparted the understanding to him that he would be allowed to purchase whatever he needed for the field, if his instructor approved. Ms. Brewer testified that she always told the students that the state would not pay for tools outside of those on the list. She told the student that if he needed something special that the instructor believed was necessary to complete the course, then the student would have to bring her a letter from the instructor. She would then send the letter to Mr. Broomfield in Tallahassee for approval. Ms. Brewer recalled Mr. Spangler approaching her about approval for the welding shoes, but did not recall telling him that he could get approval for items outside the approved list. She testified that she would not have approved purchases of items not on the list without writing a letter of explanation to Mr. Broomfield and obtaining his final approval. The facts that Mr. Spangler approached Ms. Brewer for approval of the welding shoes, and that Ms. Brewer submitted this request to Tallahassee for final approval, tend to support Ms. Brewer's testimony as to what transpired between her and Mr. Spangler regarding the necessity of Department approval for items not on the approved list. Ms. Brewer testified that, as far as she knew, she had no independent authority to approve purchases outside the list. She stated that it was her understanding that the NAFTA program dealt strictly with the tools needed to complete the coursework, not with tools that students might need in the field after completing the courses. Ms. Brewer had no direct contact with the vendors, but relied on the students to convey the information regarding the NAFTA program to the vendors and to their instructors. Mr. Thackrah was Mr. Spangler's instructor, and testified that he did not tell Mr. Spangler that the NAFTA program would pay for tools that he would need in the field after completing his coursework. Mr. Thackrah stated that he did not have the responsibility to track the various programs that provided funding to his students, and that he did not know what the NAFTA program would provide. Mr. Thackrah testified that he was provided no written guidelines as what the NAFTA program would or would not pay for. He stated that anything he knew about the NAFTA program was conveyed to him by his students, who told him that NAFTA would cover anything they would need in the field. Mr. Thackrah recalled helping the students put together lists of tools they would need in the field. He assumed that NAFTA would pay for these tools, based on his students' explanation of the program. Mr. Thackrah testified that he might have passed along this understanding of the NAFTA program information to Keith Williams, Respondent's employee in charge of the P-Tech account. Mr. Thackrah did not believe he told Mr. Williams that the students were allowed to buy anything they wanted, but that Mr. Williams may have heard that from the students. Mr. Williams testified that he had an informal meeting with instructors at P-Tech, and that they told him that the NAFTA students were entitled to any tools that they would need in the field to perform an automotive technician's job. The instructors gave him no dollar limit on those purchases, and told him that the students needed only the instructors' approval to purchase the tools. Mr. Williams testified that these students must have "thought it was Christmas." Mr. Williams recalled that Mr. Thackrah was "probably" the person who gave him the information about NAFTA reimbursements. Mr. Williams testified that he took the P- Tech instructors at their word, because he had been dealing with them over the course of five years and never had a problem with reimbursements. On September 1, 1998, Robert Dennison of Pinellas Park was enrolled in the NAFTA-TAA program by the Department's local coordinator for the St. Petersburg area, Sylvia Wells- Moore. Mr. Dennison was enrolled for training as an automotive technician. Also on that date, Mr. Dennison received a letter approving his request for training. The letter stated that his training would be provided by P-Tech "at a cost not to exceed $3,950." The letter stated that this amount "includes tuition, books, supplies and fees." Also on September 1, 1998, Ms. Wells-Moore provided Mr. Dennison with an "Applicant Acknowledgement Form" stating that $450 would be allotted for "books, equipment, supplies and/or tools. This is the total amount allowed for the entire length of your training, be it a one-week, or a two year course." The form stated that "books, special equipment, tools and uniforms will be limited to those items required by the school for every student." The form also stated that when the amount allotted for training materials has been exhausted, any additional costs must be borne by the student. Mr. Dennison signed the form, acknowledging that its contents had been "fully discussed" with him. The evidence established that Mr. Dennison obtained from Respondent tools that were not on the approved list at a total price of $8,046.79, and that the Department paid Respondent for those purchases. Mr. Dennison testified that he looked at the list of approved tools and concluded that no one could do a mechanic's job with those tools. He asked Ms. Wells-Moore if other tools would be provided, and she said they would. Mr. Dennison did not recall whether Ms. Wells-Moore told him that he would need her approval for purchases outside the list. He testified that, as he understood the NAFTA program, he believed all the tools he purchased were authorized. Ms. Wells-Moore testified that her practice was to tell students that all their tools and supplies had to come from the approved list. She stated that students were required to come to the Department and obtain a voucher before making any purchases. The student would then take the voucher to the merchant and obtain the approved tools. The merchant is then responsible for sending the invoice to the Department of Labor for reimbursement. Documents entered into evidence at the hearing indicate that Ms. Wells-Moore provided written instructions to Jason Hoch, a salesman working for Respondent on the P-Tech account. These instructions were consistent with her description of the vouchering process. She sent these instructions by facsimile transmission on October 2, 1998, prior to the purchase of any of the unlisted tools by either Mr. Spangler or Mr. Dennison. Ms. Wells-Moore testified that she never told Mr. Dennison that he could purchase items that he would need in the field after completing his coursework. She stated that she was not authorized to approve such purchases. Ms. Wells-Moore testified that if a student approached her about a tool not on the list, her first step would be to contact the instructor to ask whether the student really needed the tool to complete the coursework. She recalled such a conversation with one of Mr. Dennison's instructors, and the instructor telling her that the unlisted tools in question were not required for the course. Richard Knight was Mr. Dennison's instructor at P- Tech. Mr. Knight provided Mr. Dennison with a copy of the approved list and told him that these were the minimum tools. Mr. Knight testified that he had no direct knowledge of the NAFTA program and was unaware of any authority he had to approve the purchase of tools not on the list. He never told Mr. Dennison that NAFTA would provide tools for use in the field. Mr. Knight stated that he never "approved" any tool purchases, but he did recall signing a list of tools that Mr. Dennison brought to him. He understood that his signature was to verify that these were tools that the student would find useful in the field. Mr. Knight never received any written guidelines from the Department as to allowable purchases under the NAFTA program. He recalled a former student in the NAFTA program who said that NAFTA would pay the students for anything they needed in the field. Mr. Knight testified that both Mr. Dennison and Mr. Spangler appeared to assume that NAFTA would pay for tools they would need in the field. Mr. Knight also conceded that he may have relayed the students' understanding to the Respondent's salespeople. Mr. Broomfield testified that he became aware of problems when a representative of Respondent called to complain that some of its invoices were not being paid. Mr. Broomfield could find no record of the invoices at issue. He investigated and discovered that Respondent was bypassing the local TAA coordinators and sending its invoices directly to Tallahassee, some to the wrong division within the Department. Mr. Broomfield testified that this explained why so many unauthorized purchases were reimbursed by the Department. When an invoice arrives at the Tallahassee office, it is assumed that the local TAA coordinator has investigated and approved the purchase. Under ordinary circumstances, the Tallahassee office does not conduct an item-by-item review; it merely processes the invoices and writes the checks. In summary, the evidence established that Mr. Spangler and Mr. Dennison purchased tools not on the approved P-Tech list valued at a total of $12,383.71. The evidence established that these students were provided written notice of the firm limits on the allotted costs for their training. The evidence established that Ms. Wells-Moore gave Respondent written notice of the proper procedure for processing its invoices, prior to any of the unauthorized purchases. The evidence established that Respondent bypassed this procedure, and was reimbursed for purchases that had not been approved at the local level. The evidence established that the Department was remiss in its administration of the NAFTA program. It has promulgated no written rules or policies setting forth the reimbursement limits of the NAFTA program. It provided no written guidelines to either the schools or the vendors regarding allowable purchases. Ms. Brewer frankly stated that she relied on the students to inform their schools and vendors as to the purchasing limits. Whether Messrs. Spangler and Dennison honestly believed their purchases were allowed, or whether they were manipulating the system, they might not have obtained the unauthorized items had the Department directly informed P-Tech of its reimbursement practices. The evidence supports the finding that Respondent at the least was aware that the NAFTA program appeared to be unusually liberal, and that Respondent should have made further inquiry. Mr. Williams likened the program to "Christmas" for its participants. He testified that the instructors explained that the students were entitled to tools they would need in the field. However, the instructors credibly testified that, if they told Mr. Williams such a thing, they were merely relaying what the students told them. At best, Respondent was content to rely on the information provided by the students rather than contacting the Department to seek confirmation. The fact that Respondent bypassed the local TAA coordinators, and offered no explanation for this breach of the billing procedure, supports an inference that Respondent's failure to inquire was not entirely innocent. The evidence established that Respondent knew or should have known that the purchases in question were not covered by the NAFTA program, absent prior approval from the local TAA coordinators and the central office in Tallahassee. The Department's failure to establish a system of informing schools and vendors of the program's requirements was sufficiently obviated in this case by Ms. Wells-Moore's contacts with Respondent's representative. Ms. Wells-Moore directly placed Respondent on notice of the Department's reimbursement practices, prior to the purchases by Messrs. Spangler and Dennison. At the hearing, Respondent asserted a claim that the Department still owes Respondent $14,119.59 for tools provided to Messrs. Spangler and Dennison. Given the findings of fact above, it is unnecessary to address this claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department enter a final order providing that Respondent is indebted to the Department for NAFTA-TAA program overpayments in the amount of $12,383.71, and that Respondent shall repay the aforesaid amount within six months following entry of the final order. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Jacqueline Corbett, Credit Manager Nestor Sales Company, Inc. 7337 Bryan Dairy Road Largo, Florida 34647 Sonja P. Mathews, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
The Issue The issue to be determined is whether the applicant, Kanter Real Estate, LLC (Kanter), is entitled to issuance of an Oil and Gas Drilling Permit, No. OG 1366 (the Permit).
Findings Of Fact The Parties Kanter is a foreign limited liability company registered to do business in the State of Florida. Kanter owns 20,000 acres of property in western Broward County, on which it seeks authorization for the drilling of a vertical exploratory well. The exploratory well is to be located on a five-acre site that is subject to an ERP (the Well Site). The Department is the state agency with the power and duty to regulate activities related to the management and storage of surface waters pursuant to chapter 373, Florida Statutes, and to regulate oil and gas resources, including the permitting of activities related to the exploration for and extraction of such resources, pursuant to chapter 377, Florida Statutes. Miramar is a Florida municipal corporation located in Broward County, Florida. Broward County is a political subdivision of the State of Florida with jurisdiction extending to the Kanter property and the Well Site. The Application On July 2, 2015, Kanter submitted its Application for Permit to Drill (Application) to the Department. The proposed Well Site is on land to which Kanter owns the surface rights and subsurface mineral rights. The Application contemplates the drilling of an exploratory well to a depth of approximately 11,800 feet. The Application is not for a production well. The well is to be drilled, and ancillary activities are to be performed on a fill pad of approximately five acres, surrounded by a three-foot high perimeter berm on three sides and the L67-A levee on the fourth. The pad is the subject of an ERP which, as set forth in the Preliminary Statement, is not being challenged. The pad is designed to contain the 100-year, three-day storm. The engineering design incorporates a graded area, berm, and containment with a water control structure and a gated culvert to manipulate the water if necessary. The entire pad is to be covered by a 20 mil PVC liner, is sloped to the center, and includes a steel and concrete sump for the collection of any incidental spills. The pad was designed to contain the full volume of all liquids, including drilling fluid, fuel, and lubricating oil, that are in tanks and containers on the facility. The Application includes technical reports, seismic data, and information regarding the geology and existing producing oil wells of the Upper Sunniland Formation, which Kanter filed for the purpose of demonstrating an indicated likelihood of the presence of oil at the proposed site. The third Request for Additional Information (RAI) did not request additional information regarding the indicated likelihood of the presence of oil at the proposed site. After it submitted its response to the third RAI, Kanter notified the Department of its belief that additional requests were not authorized by law. As a result, the Department completed the processing of the Application without additional RAI’s. On November 16, 2016, the Department entered its Notice of Denial of the Oil and Gas Drilling Permit. The sole basis for denial was that Kanter failed to provide information showing a balance of considerations in favor of issuance pursuant to section 377.241.1/ There was no assertion that the Application failed to meet any standard established by applicable Department rules, Florida Administrative Code Chapters 62C-25 through 62C-30. In particular, the parties included the following stipulations of fact in the Joint Prehearing Stipulation which are, for purposes of this proceeding, deemed as established: The structure intended for the drilling or production of Kanter’s exploratory oil well is not located in any of the following: a municipality; in tidal waters within 3 miles of a municipality; on an improved beach; on any submerged land within a bay, estuary, or offshore waters; within one mile seaward of the coastline of the state; within one mile seaward of the boundary of a local, state or federal park or an aquatic or wildlife preserve; on the surface of a freshwater lake, river or stream; within one mile inland from the shoreline of the Gulf of Mexico, the Atlantic Ocean or any bay or estuary; or within one mile of any freshwater lake, river or stream. The location of Kanter’s proposed oil well is not: within the corporate limits of any municipality; in the tidal waters of the state, abutting or immediately adjacent to the corporate limits of a municipality or within 3 miles of such corporate limits extending from the line of mean high tide into such waters; on any improved beach, located outside of an incorporated town or municipality, or at a location in the tidal waters of the state abutting or immediately adjacent to an improved beach, or within 3 miles of an improved beach extending from the line of mean high tide into such tidal waters; south of 26°00'00? north latitude off Florida’s west coast and south of 27°00'00? north latitude off Florida’s east coast, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301; north of 26°00'00? north latitude off Florida’s west coast to the western boundary of the state bordering Alabama as set forth in s. 1, Art. II of the State Constitution; or north of 27°00'00? north latitude off Florida’s east coast to the northern boundary of the state bordering Georgia as set forth in s. 1, Art. II of the State Constitution, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301. 19. The proposed oil well site does not contain Florida panther habitat and is located outside of the primary and secondary habitat zones for the Florida panther. 21. There are no recorded archaeological sites or other historic resources recorded within the area of the proposed oil well site. Kanter submitted a payment of $8,972.00 for its oil and gas permit application on June 30, 2016 pursuant to Rule 62C- 26.002(5)(c), F.A.C. Kanter’s application includes sufficient information and commitments for performance bonds and securities. DEP and Intervenors do not claim that the application lacks the information required in rule 62C-26.002, F.A.C. Kanter’s application includes an organization report that satisfies the requirements of rule 62C-26.003(3), F.A.C. Kanter’s engineering aspects of the site plan for the proposed project site, are appropriate. Kanter’s survey submitted to DEP in support of its application includes a suitable location plat which meets the minimum technical standards for land surveys. Kanter’s application includes an appropriate description of the planned well completion. DEP and Intervenors do not claim that the drilling application lacks the information required by rule 62C-26.003, F.A.C. Kanter’s Application proposes using existing levees to provide access to the proposed Kanter well site. Kanter did not propose to construct additional roads for access. Kanter’s proposed well site is located 332 feet from the L67-A levee, which serves as a roadway for trucks used to perform operations and maintenance on the levees and canals in the area. Kanter’s application does not lack any information required by DEP with respect to the location of roads, pads, or other facilities; nor does it lack any information regarding the minimization of impacts with respect to the location of roads. DEP and Intervenors do not contend that the permit should be denied based upon the proposed “spacing” of the well, or drilling unit, as that term is used in rule 62C-26.004, F.A.C. Kanter’s application includes appropriate plans for the construction of mud tanks, reserve pits, and dikes. Kanter agrees to a reasonable permit condition requiring that if water is to be transported on-site, that it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process. Kanter’s design of the integrated casing, cementing, drilling mud, and blowout prevention programs is based upon sound engineering principles, and takes into account all relevant geologic and engineering data and information. Kanter’s proposed casing plan includes an additional casing string proposed in its response to DEP’s Third Request for Additional Information. This casing plan meets or exceeds the requirements of 62C-27.005, F.A.C. Kanter’s proposed casing and cementing program, as modified, meets or exceeds all applicable statutory and rule criteria.[2/] Kanter’s response and documents provided in response to DEP’s 3rd RAI satisfactorily resolved DEP’s concern regarding the risk of passage of water between different confining layers and aquifers resulting from the physical act of drilling through the layers of water and the intervening soil or earth. Kanter’s application includes a sufficient lost circulation plan. Kanter’s application is not deficient with respect to specific construction requirements which are intended to prevent subsurface discharges. Kanter’s drilling fluids plan is appropriate and is not deficient. Kanter’s blowout prevention equipment and procedures are appropriate and are not deficient. Kanter’s plans for blowout prevention are not insufficient. Kanter’s proposed oil pad is above the 100 year flood elevation and under normally expected circumstances would not be inundated by water if constructed as proposed in Kanter’s application. Kanter’s application includes a Hydrogen Sulfide Safety Plan that includes standards which are consistent with the onshore oil and gas industry standards set forth in the American Petroleum Institutes’ Recommended Practice. DEP and Intervenors do not claim any insufficiencies with respect to Kanter’s Hydrogen Sulfide Gas Contingency Plan, the sufficiency of secondary containment, its construction plans for a protective berm around the drilling site and storage tank areas of sufficient height and impermeability to prevent the escape of pad fluid, its pollution prevention plan, its safety manual, or its spill prevention and cleanup plan. DEP and Intervenors do not contend that the permitting of the well would violate section 377.242(1), F.S., regarding permits for the drilling for, exploring for, or production of oil, gas, or other petroleum products which are to be extracted from below the surface of the land only through the well hole(s). DEP and Intervenors do not contend that Kanter’s application violates the applicable rule criteria for oil and gas permitting set forth in Chapters 62C-25 through 62C-30, Florida Administrative Code. In addition to the foregoing, Kanter is not seeking or requesting authorization to perform “fracking,” and has agreed to a permit condition that would prohibit fracking. As a result of the foregoing, the parties have agreed that the Application meets or exceeds all criteria for an exploratory oil well permit under chapters 62C-25 through 62C-30. The Property Kanter owns two parcels of land totaling 20,000 acres in the area of the proposed Well Site: a northern parcel consisting of approximately 11,000 acres and a southern parcel consisting of approximately 9,000 acres. Kanter assembled its holdings through a series of acquisitions by deeds from 1975 to 1996. The Well Site is to be located within the southern parcel. On August 7, 1944, Kanter’s predecessor in title, Dallas Investment Co., acquired by tax deed all interests in a parcel within the 9,000-acre southern parcel described as “All Section 23 Township 51 South, Range 38 East, 640 Acres,” including, without reservation, the oil, gas, minerals, and phosphate. The evidence of title submitted as part of the Application indicates that a “Kanter” entity first became possessed of rights in Section 23 in 1975. By virtue of a series of transactions extending into 1996, Kanter currently holds fee title to all surface rights, and title to all mineral rights, including rights to oil, gas, and other mineral interests, within Section 23 Township 51 South, Range 38 East. The Well Site specified in the Application is within Section 23, Township 51 South, Range 38 East. Kanter’s property is encumbered by a Flowage Easement that was granted to the Central and Southern Flood Control District in 1950, and is presently held by the South Florida Water Management District (SFWMD). The Flowage Easement guarantees Kanter access to the entire easement property “for the exploration or drilling for, or the developing, producing, storing or removing of oil, gas or other . . . in accordance with sound engineering principles.” Kanter has the legal property right to locate and drill the well, and the exploratory well is consistent with Kanter’s ownership interest. The Well Site is located in a 160-acre (quarter section) portion of the 640-acre tract described above, and is within a “routine drilling unit,” which is the block of land surrounding and assigned to a well. Fla. Admin. Code R. 62C-25.002(20) and 62C-25.002(40). The Kanter property, including the Well Site, is in the historic Everglades. Before efforts to drain portions of the Everglades for development and agricultural uses, water flowed naturally in a southerly direction through land dominated by sawgrass and scattered tree islands. The tree islands were generally shaped by the direction of the water flow. Beginning as early as the late 1800s, dramatically increasing after the hurricane of 1947, and extending well into the 1960s, canals, levees, dikes, and channels were constructed to drain, impound, or reroute the historic flows. Those efforts have led to the vast system of water control structures and features that presently exist in south Florida. The Well Site, and the Kanter property as a whole, is located in Water Conservation Area (WCA)-3. WCA-3 is located in western Broward County and northwestern Miami-Dade County. It was constructed as part of the Central and Southern Florida Flood Control project authorized by Congress in 1948, and was created primarily for flood control and water supply. In the early 1960s, two levees, L67-A and L67-C, were constructed on a line running in a northeast to southwest direction. When constructed, the levees separated WCA-3 into WCA-3A to the west and WCA-3B to the southeast. The Well Site is in WCA-3A.3/ The area between L67-A and L67-C, along with a levee along the Miami Canal, is known as the “Pocket.” There is no water control in the Pocket. Although there is a structure at the south end of the Pocket, it is in disrepair, is rarely -- if ever -- operated, and may, in fact, be inoperable. The Well Site is located within the Pocket, on the southern side of L67-A. L67-A and L67-C, and their associated internal and external canals, have dramatically disrupted sheet flow, altered hydrology, and degraded the natural habitat in the Pocket. Water inputs and outputs are entirely driven by rainfall into the Pocket, and evaporation and transpiration from the Pocket. From a hydrologic perspective, the Pocket is entirely isolated from WCA-3A and WCA-3B. The Pocket is impacted by invasive species, which have overrun the native species endemic to the area and transformed the area into a monoculture of cattails. Vegetation that grows in the Pocket dies in the Pocket. Therefore, there is a layer of decomposing vegetative muck, ooze, and sediment from knee deep to waist deep in the Pocket, which is atypical of a functioning Everglades system. L67-A and L67-C, and their associated internal and external canals, impede wildlife movement, interfering with or preventing life functions of many native wildlife species. The proposed Well Site, and the surrounding Kanter property, is in a rural area where future residential or business development is highly unlikely. The property is removed from urban and industrial areas and is not known to have been used for agriculture. The Department has previously permitted oil wells within the greater Everglades, in areas of a more pristine environmental nature, character, and location than the Pocket. The Raccoon Point wellfield is located 24 miles west of the Proposed Project Site within the Big Cypress National Preserve. It is within a more natural system and has not undergone significant hydrologic changes such as the construction of canals, levees, ditches, and dikes and, therefore, continues to experience a normal hydrologic flow. Mr. Gottfried testified that at Raccoon Point, “you can see the vegetation is maintaining itself because the fact that we don’t have levees, ditches canals, dikes, impacting the area. So you have a diversity of plant life. You have tree islands still. You have the normal flow going down.” The greater weight of evidence shows that the Kanter Well Site is far less ecologically sensitive than property at Raccoon Point on which the Department has previously permitted both exploration and production wells. The Biscayne Aquifer The Biscayne Aquifer exists in almost all of Miami- Dade County, most of Broward County and a portion of the southern end of Palm Beach County. It is thickest along the coast, and thinnest and shallowest on the west side of those counties. The western limit of the Biscayne Aquifer lies beneath the Well Site. The Biscayne Aquifer is a sole-source aquifer and primary drinking water source for southeast Florida. A network of drainage canals, including the L-30, L-31, L-33, and Miami Canals, lie to the east of WCA-3B, and east of the Well Site. Those canals penetrate into the substratum and form a hydrologic buffer for wellfields east of the Well Site, including that operated by Miramar, and isolate the portions of the Biscayne Aquifer near public wellfields from potential impacts originating from areas to their west. The canals provide a “much more hydraulically available source” of water for public wellfields than water from western zones of the Biscayne Aquifer, and in that way create a buffer between areas on either side of the canals. The Pocket is not a significant recharge zone for the Biscayne Aquifer. There is a confining unit comprised of organic soils, muck, and Lake Flint Marl separating the Pocket and the Well Site from the Fort Thompson formation of the Biscayne Aquifer. There is a layer of at least five feet of confining muck under the L67-A levee in the area of the Well Site, a layer that is thicker in the Pocket. The Well Site is not within any 30-day or 120-day protection zones in place for local water supply wells. The fact that the proposed well will penetrate the Biscayne Aquifer does not create a significant risk of contamination of the Biscayne Aquifer. The drilling itself is no different than that done for municipal disposal wells that penetrate through the aquifer much closer to areas of water production than is the Well Site. The extensive casing and cementing program to be undertaken by Kanter provides greater protection for the well, and thus for the aquifer, than is required by the Department’s rules. A question as to the “possibility” that oil could get into the groundwater was answered truthfully in the affirmative “in the definition of possible.” However, given the nature of the aquifer at the Well Site, the hydrological separation of the Well Site and well from the Biscayne Aquifer, both due to the on-site confining layer and to the intervening canals, the degree of casing and cementing, and the full containment provided by the pad, the testimony of Mr. Howard that “it would be very difficult to put even a fairly small amount of risk to the likelihood that oil leaking at that site might possibly actually end up in a well at Miramar” is accepted. The Sunniland Formation The Sunniland Formation is a geologic formation which exists in a region of South Florida known as the South Florida Basin. It is characterized by alternating series of hydrocarbon-containing source rock, dolomite, and limestone of varying porosity and permeability and evaporite anhydrite or mudstone seal deposits. It has Upper Sunniland and Lower Sunniland strata, and generally exists at a depth of up to 12,000 feet below land surface (bls) in the area of the Well Site. Underlying the Sunniland Formation is a formation generally referred to as the “basement.” The basement exists at a depth of 17,000-18,000 feet bls. Oil is produced from organic rich carbonate units within the Lower Cretaceous Sunniland Formation, also known as the Dark Shale Unit of the Sunniland Formation. The oil produced in the Sunniland Formation is generally a product of prehistoric deposits of algae. Over millennia, and under the right conditions of time and pressure, organic material is converted to hydrocarbon oil. The preponderance of the evidence demonstrates that active generating source rock capable of producing hydrocarbons exists in the Sunniland Formation beneath the Kanter property. The preponderance of the evidence also indicates that the oil generated in the Sunniland Formation is at a sufficient depth that it is preserved from microbial degradation, which generally occurs in shallower reservoirs. The Upper Sunniland Formation was formed in the Cretaceous geological period, between 106 and 100 million years ago. Over that period, sea levels rose and fell dramatically, allowing colonies of rudists (a now extinct reef-building clam) and oysters to repeatedly form and die off. Over time, the colonies formed bioherms, which are reef-like buildups of shell elevated off of the base of the sea floor. Over millennia, the bioherms were exposed to conditions, including wave action and exposure to air and rainwater, that enhanced the porosity of the component rudist and oyster shell. Those “patch reefs” were subsequently buried by other materials that formed an impermeable layer over the porous rudist and oyster mounds, and allowed those mounds to become “traps” for oil migrating up from lower layers. A trap is a geological feature that consists of a porous layer overlain by an impervious layer of rock that forms a seal. A trap was described, simplistically, as an upside down bowl. Oil, being lighter than water, floats. As oil is generated in source rock, it migrates up through subterranean water until it encounters a trapping formation with the ability to create a reservoir, and with an impervious layer above the porous layer to seal the trap and prevent further migration, thus allowing the “bowl” to fill. The reservoir is the layer or structure with sufficient porosity and permeability to allow oil to accumulate with its pores. The thickness of the layer determines the volume of oil that the reservoir is capable of retaining. Although rudist mounds are generally considered to be more favorable as traps due to typically higher porosity, oyster mound traps are correlated to producing wells in the Sunniland Formation and are primary producers in the Felda field and the Seminole field. The Lower Sunniland Formation is a fractured carbonate stratum, described by Mr. Aldrich as a rubble zone. It is not a traditional structural trap. Rather, it consists of fractured and crumbling rock thought to be created by basement shear zones or deep-seated fault zones. It has the same source rock as the Upper Sunniland. There is little information on traps in the Lower Sunniland, though there are two fields that produce from that formation. A “play” is a group of prospects or potential prospects that have the same source rock, the same reservoir rock, the same trap style, and the same seal rock to hold in the hydrocarbons. The producing oil fields in the Sunniland Formation, including Raccoon Point, Sunniland, Felda, West Felda, and Lake Trafford are part of a common play known as the Sunniland Trend. The Sunniland Trend is an area of limestone of greater porosity within the Sunniland Formation, and provides a reasonable extrapolation of areas that may be conducive to oil traps. The Sunniland Trend extends generally from Manatee County on the west coast of Florida southeasterly into Broward County and the northwestern portion of Miami-Dade County on the east coast of Florida. The trend corresponds to the ancient Cretaceous shoreline where rudist and oyster bioherms formed as described above. In 2003, the “Mitchell-Tapping” report, named after the husband and wife team, identified two separate trends within the Sunniland Trend, the rudist-dominant West Felda Trend, and the more oyster-based Felda Trend. Both are oil-producing strata. The Felda Trend is more applicable to the Kanter property. Throughout the Sunniland Trend, hydrocarbon reservoirs exist within brown dolomite deposits and rudist and oyster mounds. Dolomite is a porous limestone, and is the reservoir rock found at the productive Raccoon Point oil wellfield. The evidence indicates that a brown dolomite layer of approximately 20 feet underlies the Well Site, and extends in all directions from the Well Site. A preponderance of the evidence indicates that the Kanter property, including the Well Site, is within the Sunniland Trend and its Felda Trend subset.4/ Oil produced from wells in the Sunniland Trend is typically thick, and is not under pressure. The oil does not rise through a bore hole to the surface, but must be pumped. The Raccoon Point Field, which is the closest productive and producing wellfield to the proposed Well Site, is located approximately 24 miles to the west of the Well Site, within the Sunniland Trend. Raccoon Point contains numerous well sites, of which four or five are currently producing, and has produced in the range of 20 million barrels of oil since it began operation in the late 1970s. Cumulative production of oil from proven fields in the South Florida Basin, including fields in the Sunniland Formation, is estimated to be in excess of 160 million barrels. Estimates from the U.S. Geological Service (USGS) indicate that 25 new fields capable of producing five million barrels of oil each are expected to be found within the Lower Cretaceous Shoal Reef Oil Assessment Unit, which extends into the Kanter property. Estimates of the potential reserves reach as high as an additional 200 million barrels of oil. The Dollar Bay Formation Another formation that has potential for oil production is the Lower Cretaceous Dollar Bay Formation, also in the South Florida Basin. The Dollar Bay Formation exists beneath the Kanter property at a shallower depth than the Sunniland Formation, generally at a depth of 10,000 feet in the vicinity of the Well Site. Most of the Dollar Bay prospects are on the east side of the South Florida Basin. Most of the wells in the South Florida Basin are on the west side. Thus, there has not been much in the way of exploration in the Dollar Bay Formation, so there is a lack of data on traps. Dollar Bay has been identified as a known oil-bearing play by the USGS. It is a self-source play, so the source comes from the Dollar Bay Formation itself. Dollar Bay exists both as potential and mature rock. It has known areas of very high total organic content (TOC) source rock; logged reservoir in the formation; and seal rock. There have been three oil finds in the Dollar Bay formation, with at least one commercial production well. Kanter will have to drill through the Dollar Bay Formation to get to the Upper Sunniland formation, thus allowing for the collection of information as to the production potential of the prospect. Although Dollar Bay is not generally the main “target” of the Permit, its potential is not zero. Thus, consideration of the Dollar Bay Formation as a factor in the calculation of risk/success that goes into the decision to drill an exploratory well is appropriate. Initial Exploratory Activities In 1989, Shell Western E&P, Inc. (Shell), conducted extensive seismic exploration in south Florida. Among the areas subject to seismic mapping were two lines -- one line of 36,000 feet mapped along the L67-A levee, directly alongside the Well Site, and the other of approximately 10 miles in length along the Miami Canal levee. The lines intersect on the Kanter property just north of the Well Site. The proposed exploration well is proposed to extend less than 12,000 feet deep. The seismic mapping performed by Shell was capable of producing useful data to that depth. The seismic methodology utilized by Shell produced data with a high degree of vertical and spatial resolution. Given its quality, the Shell data is very reliable. Shell did not use the seismic data generated in the 1980s, and ultimately abandoned activity in the area in favor of larger prospects, leaving the smaller fields typical of south Florida for smaller independent oil companies. The Shell seismic data was purchased by Seismic Exchange, a data brokerage company. In 2014, Kanter purchased the seismic data from Seismic Exchange for the lines that ran through its property. With the purchase, Kanter received the original field tapes, the support data, including surveyors’ notes and observer sheets which describe how the data was acquired, and the recorded data. As a result of advances in computer analysis since the data was collected, the seismic data can be more easily and accurately evaluated. It is not unusual for companies to make decisions on whether to proceed with exploration wells with two lines of seismic data. Mr. Lakin reviewed the data, and concluded that it showed a very promising area in the vicinity of the L67-A levee that was, in his opinion, sufficient to continue with permitting an exploratory oil well. Mr. Lakin described the seismic information in support of the Application as “excellent data,” an assessment that is well-supported and accepted. Mr. Pollister reviewed the two lines of seismic data and opined that the information supports a conclusion that the site is a “great prospect” for producing oil in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. Seismic Data Analysis The seismic lines purchased by Kanter consist of line 970, which runs southwest to northeast along the L67-A levee, and a portion of line 998, which runs from northwest to southeast along the Miami Canal levee. The lines intersect at the intersection of the two levees. The data depicts, among others, the seismic reflection from the strata of the Sunniland Trend, and the seismic reflection from the basement. The depiction of the Sunniland Trend shows a discernable rise in the level of the strata, underlain by a corresponding rise in the basement strata. This rise is known as an anticline. An anticline is a location along a geologic strata at which there is an upheaval that tends to form one of the simplest oil traps that one can find using seismic data. In the South Florida Basin, anticlines are typically associated with mounded bioherms. A “closed structure” is an anticline, or structural high, with a syncline, or dip, in every direction. A closed structure, though preferable, is not required in order for there to be an effective trap. Most of the Sunniland oil fields do not have complete closure. They are, instead, stratigraphic traps, in which the formation continues to dip up and does not “roll over.” Where the rock type changes from nonporous to porous and back to nonporous, oil can become trapped in the porous portion of the interval even without “closure.” Thus, even if the “bowl” is tilted, it can still act as a trap. Complete closure is not necessary in much of the Sunniland Trend given the presence of an effective anhydrite layer to form an effective seal.5/ The seismic data of the Kanter property depicts an anticline in the Sunniland Formation that is centered beneath the Well Site at a depth in the range of 12,000 feet bls. Coming off of the anticline is a discernable syncline, or dip in the underlying rock. Applying the analogies used by various witnesses, the anticline would represent the top of the inverted bowl, and the syncline would represent the lip of the bowl. The evidence of the syncline appears in both seismic lines. The Shell seismic data also shows an anhydrite layer above the Sunniland Formation anticline. The same anticline exists at the basement level at a depth of 17,000 to 18,000 feet bls. The existence of the Sunniland formation anticline supported by the basement anticline, along with a thinning of the interval between those formations at the center point, provides support for the data reliably depicting the existence of a valid anticline. A basement-supported anticline is a key indicator of an oil trap, and is a feature commonly relied upon by geophysicists as being indicative of a structure that is favorable for oil production. The seismic data shows approximately 65 feet of total relief from the bottom to the top of the anticline structure, with 50 feet being closed on the back side. The 50 feet of closed anticline appears to extend over approximately 900 acres. There is evidence of other anticlines as one moves northeast along line 970. However, that data is not as strong as that for the structure beneath the Well Site. Though it would constitute a “lead,” that more incomplete data would generally not itself support a current recommendation to drill and, in any event, those other areas are not the subject of the permit at issue. The anticline beneath the well site is a “prospect,” which is an area with geological characteristics that are reasonably predicted to be commercially profitable. In the opinion of Mr. Lakin, the prospect at the location of the proposed Well Site has “everything that I would want to have to recommend drilling the well,” without a need for additional seismic data. His opinion is supported by a preponderance of the evidence, and is credited. Confirmation of the geology and thickness of the reservoir is the purpose of the exploratory well, with the expectation that well logs will provide such confirmation. Risk Analysis Beginning in the 1970s, the oil and gas industry began to develop a business technique for assessing the risk, i.e., the chance of failure, to apply to decisions being made on drilling exploration wells. Since the seminal work by Bob McGill, a systematic science has developed. In 1992, a manual was published with works from several authors. The 1992 manual included a methodology developed by Rose & Associates for assessing risk on prospects. The original author, Pete Rose,6/ is one of the foremost authorities on exploration risk. The Rose assessment method is a very strong mathematical methodology to fairly evaluate a prospect. The Rose method takes aspects that could contribute to finding an oil prospect, evaluates each element, and places it in its perspective. The Rose prospect analysis has been refined over the years, and is generally accepted as an industry standard. The 1992 manual also included a methodology for assessing both plays and prospects developed by David White. The following year, Mr. White published a separate manual on play and prospect analysis. The play and prospect analysis is similar to the Rose method in that both apply mathematical formulas to factors shown to be indicative of the presence of oil. Play and prospect analysis has been applied by much of the oil and gas industry, is used by the USGS in combining play and prospect analysis, and is being incorporated by Rose & Associates in its classes. The evidence is convincing that the White play and prospect analysis taught by Mr. Aldrich is a reasonable and accepted methodology capable of assessing the risk inherent in exploratory drilling. Risk analysis for plays and prospects consists of four primary factors: the trap; the reservoir; the source; and preservation and recovery. Each of the four factors has three separate characteristics. Numeric scores are assigned to each of the factors based on seismic data; published maps and materials; well data, subsurface data, and evidence from other plays and prospects; and other available information. Chance of success is calculated based on the quantity and quality of the data supporting the various factors to determine the likelihood that the prospect will produce flowable hydrocarbons. The analysis and scoring performed by Mr. Aldrich is found to be a reasonable and factually supported assessment of the risk associated with each of the prospects that exist beneath the proposed Well Site and that are the subject of the Application.7/ However, Mr. Aldrich included in his calculation an assessment of the Lower Sunniland Formation. The proposed well is to terminate at a depth of 11,800 feet bls, which is within the Upper Sunniland, but above the Lower Sunniland. Thus, although the Lower Sunniland would share the same source rock, the exploration well will not provide confirmation of the presence of oil. Therefore, it is more appropriate to perform the mathematical calculation to determine the likelihood of success without consideration of the Lower Sunniland prospect. To summarize Mr. Aldrich’s calculation, he assigned a four-percent chance of success at the Well Site for the Dollar Bay prospect. The assignment of the numeric scores for the Dollar Bay factors was reasonable and supported by the evidence. Mr. Aldrich assigned a 20-percent chance of success at the Well Site for the Upper Sunniland play. The assignment of the numeric scores for the Upper Sunniland factors was reasonable and supported by the evidence. In order to calculate the overall chance of success for the proposed Kanter exploratory well, the assessment method requires consideration of the “flip side” of the calculated chances of success, i.e., the chance of failure for each of the prospects. A four-percent chance of success for Dollar Bay means there is a 96-percent (0.96) chance of failure, i.e., that a commercial zone will not be discovered; and with a 20-percent chance of success for the Upper Sunniland, there is an 80-percent (0.80) chance of failure. Multiplying those factors, i.e., .96 x .80, results in a product of .77, or 77 percent, which is the chance that the well will be completely dry in all three zones. Thus, under the industry-accepted means of risk assessment, the 77-percent chance of failure means that there is a 23-percent chance of success, i.e., that at least one zone will be productive. A 23-percent chance that an exploratory well will be productive, though lower than the figure calculated by Mr. Aldrich,8/ is, in the field of oil exploration and production, a very high chance of success, well above the seven-percent average for prospecting wells previously permitted by the Department (as testified to by Mr. Linero) and exceeding the 10- to 15-percent chance of success that most large oil companies are looking for in order to proceed with an exploratory well drilling project (as testified to by Mr. Preston). Thus, the data for the Kanter Well Site demonstrates that there is a strong indication of a likelihood of the presence of oil at the Well Site. Commercial Profitability Commercial profitability takes into account all of the costs involved in a project, including transportation and development costs. Mr. Aldrich testified that the Kanter project would be commercially self-supporting if it produced 100,000 barrels at $50.00 per barrel. His testimony was unrebutted, and is accepted. The evidence in this case supports a finding that reserves could range from an optimistic estimate of 3 to 10 million barrels, to a very (perhaps unreasonably) conservative estimate of 200 barrels per acre over 900 acres, or 180,000 barrels. In either event, the preponderance of the evidence adduced at the hearing establishes an indicated likelihood of the presence of oil in such quantities as to warrant its exploration and extraction on a commercially profitable basis.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the Application for Oil and Gas Drilling Permit No. OG 1366 with the conditions agreed upon and stipulated to by Petitioner, including a condition requiring that if water is to be transported on-site, it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process, and a condition prohibiting fracking; and Approving the application for Environmental Resource Permit No. 06-0336409-001. DONE AND ENTERED this 10th day of October, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2017.
The Issue Whether Respondents are indebted to Petitioner for 106 boxes of beans sold by Petitioner to Respondent, G & B Produce Company, Inc. and, if so, the amount of the indebtedness.
Findings Of Fact On January 30, 1995, Mark A. Underwood, Vice President of the Petitioner, was contacted by telephone by Troy Bennett, an employee of the Respondent, G & B Produce Company, Inc. (G & B). Mr. Bennett wanted to purchase 150 boxes of beans. Mr. Underwood informed Mr. Bennett that the Petitioner had sold all of the beans it had grown, but that Petitioner could obtain beans from another grower. Thereafter, Suncoast Farms, a grower that is not a party to this proceeding, sold to Petitioner 106 boxes of beans, which Petitioner re-sold to G & B on February 1, 1995. There was no written contract between Petitioner and Suncoast or between Petitioner and G & B. Between February 1, 1995, and February 6, 1995, the beans were loaded onto one of G & B's trucks and transported to Houston, Texas. On February 6, 1995, the beans were inspected by a federal inspector in Houston, Texas. The inspector noted on his inspection report that the beans were "generally shriveled, flabby, watersoaked, or decayed". The use of the term "generally" by the inspector indicates that 90 percent or more of the beans were deficient. There is a notation on the inspection report that the beans would be dumped. On February 7, 1995, Mr. Underwood was told by G & B's employee about the inspection and was notified that the beans had been dumped. Mr. Underwood was sent by fax a copy of the inspection report. He was also provided a copy of the dump certificate. Petitioner was not consulted by G & B prior to the beans being dumped. 1/ Since there was no written contract between Petitioner and G & B and no verbal agreement as to how a failed inspection would be handled, Petitioner must rely on industry practices to support its contention that it is entitled to be compensated because G & B did not give it the opportunity to salvage the load of beans. Petitioner did not establish what the practices of the industry are when a load of produce fails to pass inspection. In addition, Petitioner did not establish that it was commercially reasonable to attempt to salvage the load of beans at issue in this proceeding. There was no evidence as to the salvage value of the beans and there was no evidence as to costs that would have been incurred in an attempt to salvage the beans.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein and denies Petitioner's claim against Respondents. DONE AND ENTERED this 30th day of October 1995 in Tallahassee, Leon County, Florida. 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 30th day of October 1995.
Findings Of Fact The business of the Respondent. Respondent is, and has been at all times material herein, created directly by the Constitution of the State of Florida and constitutes a Department or administrative arm of the government that is administered by individuals who are responsible to public officials or to the general electorate. At all times material herein, the Respondent is engaged in and has been engaged in the business of operating a county school system in Pasco County, Florida. The labor organization involved. Pasco Classroom Teachers Association is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The issues. Whether the Respondent unlawfully refused to employ Ronald Eckstein on a continuing contract status; whether it unlawfully refused to reappoint him as department chairman and whether it unlawfully refused to grieve the above acts in violation of Florida Statutes. Whether the Respondent unlawfully terminated Sharyn Disabato and also, whether the Respondent unlawfully failed to grieve the termination of Sharyn Disabato pursuant to Article 12 of the parties collective bargaining agreement. Whether the Respondent unlawfully terminated Fred Rydzik and whether it unlawfully refused to grieve the termination of alleged discriminatee, Fred Rydzik. Whether the Respondent unlawfully adopted a salary schedule which amounted to a 5 percent wage reduction for employees in the certified bargaining unit; whether it unlawfully froze every employee's increment steps and three; whether it unlawfully reduced all supplements paid to bargaining unit employees and also whether it unlawfully postponed previously scheduled preschool planning days. Whether the Respondent unlawfully refused to process dues authorizations card executed by bargaining unit employees in violation of Section 447.303 of the Act. Alleged unfair labor practices. (a) The Facts The Pasco Classroom Teachers Association, hereinafter sometimes referred to as PCTA, was certified by the Public Employees Relations Commission, hereinafter sometimes referred to as PERC, on April 17, 1975, as the exclusive representative of the certified personnel employed by the School Board, except those who hold supervisory authority specifically excluding the Superintendent, Assistant Superintendents, District Level Supervisors, Directors, Principals, Assistant Principals, and Curriculum Assistants from functioning as a second-in- command in the building. The PCTA and employer were as stated parties to a collective bargaining agreement which by its terms was effective August 6, 1974, through June 30, 1975. Larry Smith is PCTA's designated bargaining agent and Ronald Forguson is the Employer's designated bargaining agent. The Respondent employs approximately 2500 instructional employees throughout the county at 25 or more locations or school districts. The employer operates in a manner which is somewhat unique to most school districts in that a school year begins in approximately July of each year and the instructional personnel work a 45 day schedule and they are off approximately 15 days. This system is referred to as the Track system and there are 4 tracks described as A, B, C and D. Alleged discriminatee, Sharyn Disabato, was employed by the employer from the school year 1973 through June of 1975. Ms. Disabato testified that her duties consisted of providing an atmosphere for students to learn science, math, social studies, art, music and physical education at Schrader Elementary School, where she was employed. Schrader is an open school, which means that there are no classroom areas partitioned off and all student's and teachers are somewhat visible at all times. Disabato's students consisted of fourth, fifth and sixth graders. Her most recent employment contract was for a 196-day period beginning July 24, 1974 through June 30. She testified that she was very active in curricular activities as well as extracurricular activities. For an example, she testified that she served on the construction committee, which was a committee formulated to provide input for an addition to the facility. Ms. Disabato testified that she sponsored the bus patrol group and assisted several teachers on science projects and assisted new teachers in locating resource materials, filing cabinets, new books and to generally review the overall physical plant. During her last year of employment, she received the "Teacher of the Year" award for her school. Her principal at Schrader Elementary School gas Larry Robison. She also served as the building presentative, which meant that she handled grievances filed by the other teachers. She assisted Mr. Larry Smith in contacting her fellow employees to execute payroll deduction authorization forms. She was approached by her principal sometime in October of 1974 and was asked by him to form a committee of volunteers to make up the association's building committee. That committee was designed to present and resolve grievances that the other teachers were experiencing at the school. She also asked employees to serve on the committee to "maintain the collective bargaining agreement". She was the assistant committee chairperson and during committee meetings, Mr. Robison attended. Mr. Robison also asked her to schedule all building committee meetings. She joined the union at the inception of her employment with the employer. Beginning in January of 1974, she researched the contract and proposed and formulated several provisions which are now presently contained in the contract. She also served on the bargaining team during January of 1974; she conducted surveys and spent approximately 3 hours, 3 times each week for a total of more than 100 hours preparing contract proposals. According to her testimony, in addition to the above activities in which Mr. Robison would know of her union activities, she also indicated that her name appeared on several union flyers which were distributed throughout the facility and also, on one occasion, she was approached by Mr. Robison, who at that time told her that "bargaining wasn't what she thought it to be." At Schrader, during the school year 1974-75, there were approximately 580 students and approximately 26 instructional personnel. She testified that the building representative association meetings were conducted on a monthly basis and that she presented and resolved grievances which were filed by both union as well as non-union members and that she acted as a conduit for resolution of all employee grievances. Sometime prior to November, Disabato testified that she mentioned to Mr. Robison that all vacancies had to be advertised, whereupon Mr. Robison approached Mr. Smith and asked him if that was in fact the case. According to Disabato, Smith informed Mr. Robison that vacancies were to be advertised. During January 1975, Disabato began formulating new contract proposals and a flyer was distributed around the school building, which somewhat depicted her activities in this regard. She testified that Mr. Robison may have seen the flyer. The alleged discriminatee testified and the record reflects that she often criticized school and administration policies and in those instances in which she felt that the contract was being violated by the administration, she would immediately call such to their attention. She testified further that Mr. Robison did not take kindly to such criticism. She testified that during the school year 73-74, she received an outstanding rating and at no place on her evaluation form did there appear any teaching deficiencies. During school year 74-75, she indicates that she was evaluated by Mr. Robison sometime in February 1974. On that evaluation, she testifies that Mr. Robison informed her and noted on her evaluation form that she needed improvement as to her rapport with fellow employees. Also, that as to her personal qualities, she was uncooperative. Specifically, he mentioned an incident wherein she had interceded on behalf of another fellow teacher, Mayna Radacky, and that her interjection upset Mrs. Radacky. When she was presented with the evaluation form, the alleged discriminatee felt that she needed a witness present and at that meeting she took Mrs. Radacky along with her. On voicing her objections to the alleged deficiencies noted on the evaluation form Mr. Robison merely indicated to her that she lacked rapport with her fellow employees and aside there from, he was very unspecific. Upon receipt of this evaluation, Ms. Disabato wrote a letter to Mr. Robison indicating her dissatisfaction with the evaluation and she relayed this to him by giving a letter to his secretary. According to M. Disabato, Mr. Robison told her that her letter would be attached to her evaluation. By letter dated March 14, Ms. Disabato was informed that she would not be rehired. When asked the reason, Mr. Robison informed her that "he would hire someone to do a better all-around job." Ms. Disabato testified that she did not request a written list of reasons for Mr. Robison's refusal to rehire her. She testified that her attitude with Mr. Robison was very good prior to her participation in negotiations for the collective bargaining agreement, but thereafter Mr. Robison's attitude, in her opinion, changed. She testified that after her participation in negotiations, problems occurred on a daily basis for her to resolve. She testified that during a faculty meeting held sometime in November December 1974, Mr. Robison announced to the faculty members that "you do not have a guardian angel" and their problems should be addressed to him. During the beginning of the 1974-75 school year when all of the faculty personnel were introduced, Ms. Disabato indicated that Mr. Robison omitted introducing her to the other faculty members and that such omission was purposeful on his part inasmuch as he was reading from a printed list and further that the same situation occurred on another occasion. She indicates that after all the other instructors were introduced, Mr. Robison tried to pretend that the omission was inadvertent and he thereupon introduced her. Sometime in September or October of that year, Disabato testified that she was called in to a conference with Mr. Robison whereupon he indicated that she was insubordinate to him; that she did not respect him, and that he "should be respected." He also told her at that time that she was a "gutsy lady and that if this had occurred three years earlier, she'd be walking the streets. Upon learning of Ms. Disabato's discharge or nonrenewal of her contract, a petition was circulated by other teachers supportive of Ms. Disabato and approximately one-half of the instructional personnel signed such petition. In an effort to resolve her non-renewal grievance, Ms. Disabato first talked to Larry Smith and they completed a grievance form. On various occasions, Smith and Ms. Disabato attempted to meet with Mr. Robison in an effort to resolve the grievance to their satisfaction, and on each occasion, Mr. Robison refused to meet with them. Ms. Disabato, when asked, knew of no other contract teachers who were not rehired during the school year 1975-1976. On cross-examination, Ms. Disabato related two instances wherein grievances advanced by her to Mr. Robison were resolved. Specifically, she raised an objection to a janitor vacuuming the halls during school hours and this procedure was stopped. Also, with regard to posting vacancy announcements, Mr. Robison, subsequent to her protest, advertised all vacant positions. She also worked with and mutually resolved the problem or a problem regarding long distance phone calls and the utilization of subs during the school year. She also reiterated on cross-examination the fact that her name was deliberately omitted from other lists, but she was not specific in indicating other lists which her name was omitted from as she previously testified to on direct examination. Larry Smith, PCTA's Executive Director, testified that he attempted to grieve the non-renewal of Sharyn Disabato's contract by initially attempting to contact Mr. Robison by telephone sometime in mid-March, 1975. Thereafter he called Dr. Ferguson with no success. The next day he contacted Mr. Robison and Mr. Robison informed him that he would contact him the following Friday. On or about March 21, Smith called Dr. Forguson by telephone and he would not accept the grievance indicating the the grievance was invalid and the non-renewal of an annual contract teacher was not a grievable item. He was also, at that time, instructed by Mr. Robison to deal a with Dr. Forguson. Smith made several attempts to send a written grievance to Mr. Robison and Dr. Forguson and on each occasion the grievance was returned. The procedure of sending a grievance by certified mail was also futile. Finally, the association's president, David Suttle, was able to get the grievance served by the sheriff's department, but the Respondent, and/or its agents, would not hear the grievance. Smith testified that they failed to accept the grievance in order to "prevent binding arbitration." Smith states that Superintendent Thomas Wateman and their counsel, Mr. Joe McClain, gave this opinion. Smith testified that not only M. Disabato's grievance would be handled in a similar manner, but that Ronald Eckstein and Fred Rydzik's or any other grievance of a similar nature would not be a matter subject to the grievance provision of the collective bargaining agreement. Smith stated that they (the Respondent) made it clear to him that grievances dealing with renewal of a contract was not a grievable item under the contract. Thereafter, Smith indicated his opinion that the grievance was not appealed to level 3 because it would be futile to do so based on his prior attempts. Smith testified that employees voiced extreme concern about their job security after Ms. Disabato's contract was not renewed and that several employees, specifically the annual contract teachers who are non-tenured, asked to withdraw their authorizations for payroll deductions of their dues check-off. Larry Robison has served as the principal at Schrader Elementary School for approximately 3 years and he is in charge of the overall operation of the school. He testified that in the employment process, he makes what is essentially the final recommendation in that an employee cannot be hired, that is, an instructional employee, cannot be hired without recommendation by him to obtain a teaching position at the school. Robison testified that he evaluates new teachers approximately 3 times annually and that both annual contract teachers and continuing contract teachers are evaluated only once per year. Robison testified that the evaluation process consists of conferences, both informal and formal visits, and that in making his evaluation, he relies on mental notes primarily. He testified that in instances wherein he notes deficiencies in an instructor's teaching skills, he advises them of such deficiencies and provides ample time for them to correct any deficiencies that, in his opinion, are warranted. He testified that the amount allotted a deficient teacher varies according to the teacher's ability to correct the problem that he notes. Robison testified that he was aware of Ms. Disabato's position as the building representative in 1973 and that this fact was a matter of common knowledge throughout the school. He was also aware of her participation on the union's bargaining committee during school year 1973. He also admitted asking either Ms. Disabato or Richard Culp to formulate the building committee, which was in his opinion, a forum to resolve grievances. David Suttle, PCTA's vice president and an elementary teacher at Elfers School for approximately five years was called and testified that he was a "building rep" for the school year 1973-1974 and served on the negotiating team for 1974 and 1975. Suttle testified that the binding arbitration provisions included in the contract was based on passage of Florida Statute 74, Chapter 100 and Chapter 447, Florida Statutes. Suttle testified that PCTA attempted to grieve the matter of Ms. Disabato's separation, but that the Respondent refused to accept the grievance and that based on the fact that this grievance was not accepted and the employer failed to grieve it, the union felt that it would be futile and fruitless to attempt to grieve the discharges of the other two discriminatees contained in the consolidated Complaint. 2/ Suttle testified that the union received the letter from the sheriff's department indicating that they would no longer serve grievances filed by the union. Suttle testified that during a union meeting with management in mid-May, 1975, the employer indicated that they had the right to determine "what was or was not a grievable matter." Suttle testified that the subject charges were filed when it became clear that issues regarding the renewal or non-renewal of annual contract teachers would not be accepted. Suttle testified also that during this meeting in mid-May the employer was informed that unfair labor practices would be charged with PERC based on their failure to accept the grievance regarding the non-renewal of annual contract teachers. Suttle testified that various employees indicated to him that they felt reprisal would be taken if their union activities were known by the employer. Suttle testified that union deduction authorizations were cancelled and that salaries were unilaterally cut. Suttle testified that the fear of reprisals was not only confined to union members but also to non-union members as well. After Suttle was examined and excused, the general counsel and the charging party rested their case with regard to the allegations contained in Case No. 1040. At the outset of the defense to the charge in this case, the Respondent made a Motion to Dismiss which the undersigned denied, based on his opinion that the general counsel and charging party had presented a "prima facie" case. Respondent's Defense to CA-1040 3/ Minnie Kownach, secretary to Mr. Robison for approximately three years, testified that on March 24, 1975, Larry Smith visited the office at approximately 2:30 p.m. She advised Mr. Robison of Mr. Smith's presence. Mr. Robison was in the office interviewing another teacher; she buzzed Mr. Robison and he asked her to tell Mr. Smith that he would be glad to see him at another time. She testified that Mr. Smith stayed in the office and at approximately 2:45 on that day, Ms. Disabato came down and she and Mr. Smith stayed until approximately 3:00. She testified that Mr. Smith did not make an appointment to see Mr. Robison on that date, i.e., March 24. Marsetta Haspelhorn, assistant principal at Schrader since January, 1974, testified that she was on the team with Ms. Disabato and Sharyn Watson for a period of time and that she observed Ms. Disabato's teaching. She testified that she had a conversation with Ms. Disabato about the non-renewal of her contract when she learned about it, and during a break during April, 1975, in the teachers' lounge, she asked Ms. Disabato not to file unfair labor practice charges inasmuch as it would "ruin her reputation." She testified that Ms. Disabato informed her the "the union would take care of her." She testified that she and Ms. Disabato are friends. She testified that Ms. Disabato is an effective teacher; however, her discipline leaves something to be desired. She testified that Ms. Disabato sometimes stops a pupil and tells him that he should not be doing something and that she is "harsh with the students." She testified that Ms. Disabato is vocal if another employee or person expresses views contrary to her own. She testified that she was aware that Ms. Disabato had problems with some teachers; however, she "got along with others", She testified that she and Ms. Disabato were not on good terms and that she did not try to help new teachers, whereas other teachers helped. She testified that Ms. Disabato was antagonistic towards Mr. Robison and that this attitude was pervasive and increased as the year progressed. She noted no change in the attitude or demeanor of employees since Mrs. Disabato's separation and that employees of Schrader are "always open." She testified that the employees never expressed any fear or reprisal for voicing complaints. She acknowledged that Mrs. Disabato was the building committee representative. She testified that Mrs. Disabato always questioned school practices during faculty meetings and that she did so more frequently than other employees. She testified that she was not a union member because she felt that she did not "need the union's backing." She testified that although no teachers other than Mrs. Disabato complained to Mr. Robison, they were not afraid of him. She testified that she never observed Mr. Robison refusing to speak to Mrs. Disabato or to introduce her. She testified that Mr. Robison omitted her name in an open house meeting and that she did not take it as an insult. She testified that Mrs. Disabato and Mrs. Radacky had a good relationship and that Mrs. Disabato approached Mrs. Radacky about the problem regarding the students missing the bus. However, she testified that she did not overhear Mrs. Disabato tell Mrs. Radacky not to take the students home. She testified that the separation of Mrs. Disabato has had no effect on the employees' freedom of expression at the school and that Culp was a building "rep" during the time that Mrs. Disabato was a building representative and is still employed and continues to serve as a building representative. She testified that Mrs. Disabato has an "explosive personality" and that if she cannot get things her way, she would walk away with a "sarcastic" look. The charging party introduced a telegram into evidence which purports to be a message to Mrs. Disabato signed by Carolyn White, Mary Garrison, Sue Walsh, Jane Foteys, Karen Johnson, Russ Willie, James Baretti, Tom Barnard, Gene Turner, over the Respondent's objection. The hearing officer received the exhibit into evidence. On cross examination Mrs. Haspelhorn testified that she did not know whether Mrs. Disabato was well thought of by her peers. She testified that she purchased a home from Mr. Robison. She testified that the problems of Mrs. Disabato and Mr. Robison related to school policies, and that the problems were not union related. She testified that she was unaware of Mrs. Disabato's union activities. She testified that Mrs. Disabato complained of school practices and often disagreed with school policy and that her disagreement was aired in a "loud tone." She testified that Mrs. Disabato told her that she would be employed by the union. She also testified that the other employees have not talked to her about Mrs. Disabato's separation. Leona Supurka, an elementary teacher at Schrader for the past two years, was called and testified that she has been employed in Maryland and in Pennsylvania as a teacher for approximately 16 years. She testified that she did not work in close proximity to the alleged discriminatee, and that she (Mrs. Disabato) did not offer any assistance to her. She testified that Mrs. Disabato's attitude toward the principal was rude and it was the type of rudeness in which she had never experienced a teacher voice to a principal. She testified that she was presented with a petition supportive of Mrs. Disabato on two separate occasions; that she refused to sign it and also that she resented being approached on two occasions by employees who felt that she should sign the petition. She also testified that Mrs. Disabato was disruptive and not always with, and in fact, frequently questioned school policies. She testified on cross examination that Mrs. Disabato offered no assistance to her. However, she also testified that no occasion arose wherein the alleged discriminatee would have needed to assist her. She testified that Mrs. Disabato expressed rude manners in faculty meeting on two occasions that she could recall In late September or early October, 1974. She testified that on one occasion Mrs. Disabato disagreed with the arrangement or timing of the lunch schedule and that Mrs. Disabato was insubordinate at faculty meetings. She testified that in her opinion, the employer is the boss and the employee should go along; that if there is disagreement, it should be voiced in a private conference. She testified that she was of the opinion that Mrs. Disabato was a disruptive influence on the faculty at Schrader and that she probably discussed this fact with Mr. Robison during the school year. Catherine O'Conner, an employee of approximately ten months in Pasco County, testified that she does not know Mrs. Disabato as a teacher, but that she was approached on two occasions to sign a petition supportive of Mrs. Disabato. She also testified that she felt intimidated by being approached on two separate occasions, inasmuch as she had voiced her opposition to signing the petition. Mrs. O'Conner testified that she did not know whether or not Mrs. Disabato was irrational or not and she was very vague about meetings regarding the presentation of contract to teachers within the "required" 30-day period. She testified that the contracts were presented later and that she was upset that the contracts were not presented timely. She could not recall if Mrs. Disabato assisted her when she became a teacher at Schrader. Larry Robison, the principal at Schrader, was called and testified that he received an evaluation by PCTA in mid-May, 1975. He testified that he was unaware that Mrs. Disabato was a union officer. He testified that his decision to non-renew Mrs. Disabato's contract had nothing to do with union activities. He testified and the record evidence shows (see Respondent's exhibit no. 4, which is received in evidence) that his overall rating was 3.4 out of a possible 5. He testified that he received his lowest evaluation in the areas of (1) reacting positively to constructive criticism; (2) seeks to lessen the non-teaching burden by avoiding excessive paper work and supervises without favoritism by equalizing teaching loads and administrative assignments. He testified that he was aware that Mrs. Disabato was a building rep and that she was a union member. He testified that in early 1974, Mrs. Disabato was very active in the union. He testified that he could have discussed Mrs. Disabato with other faculty members. He testified that he discharged Mrs. Disabato based on her behavior, her rudeness to students, her poor rapport with peers and uncooperativeness. He also testified that he also discharged her based on her difficulty with regard to "getting along with the administration." He testified that the Radacky incident played a small part of his decision to non-renew Mrs. Disabato's contract. Mr. Robison testified that he was the party who upset Mrs. Radacky during the incident. He testified that he left a note to Mrs. Radacky indicating that he was sorry that he caused her to be upset and that he was sorry that he had created discord with one of her peer groups. However, in an affidavit given to the Public Employees Relations Commission dated on or about May 29, he testified that the reason he discharged Mrs. Disabato was based on her harshness, her lack of cooperation, and interference with other affairs of the building that's none of her business. He later testified on redirect that she was not rehired because she was a building representative, nor did he observe any increase in her union activity during the prior year. On re-cross examination, he testified that he made the decision independently not to rehire Mrs. Disabato. Gary B. Potts, teacher-coach and department chairman, social studies, Hudson High School, testified that he knew Ron Eckstein and that he did not tell Ron Eckstein or anyone how he got to be department chairman. He testified that he received more votes than anyone in the recommendation to the principal for the social studies department chairmanship. He testified that he did not vote in the election and that there were perhaps five or six employees in the social studies department who would have been eligible to vote for the recommendation. He testified that prior to the election, there was a lot of conversation regarding the vote and as to how the department was being run under Mr. Eckstein's chairmanship. He testified that he talked to approximately two of the four or five employees in the social studies department regarding their vote and the chairmanship election and that on one occasion Mr. Coy Pigman, the principal, called him in to ask him if he would assume the chairmanship if offered. He also testified that he spoke to a Mr. Ronald Clayback, an employee in the math department. He testified that he was a union member, however, there was some mix up in his dues authorization and the authorization had not been either executed on time or the Respondent was not deducting the dues pursuant to his dues check off authorization. Margaret Rose De Jong, a teacher at Hudson Senior High School from July 1974 through November 1974, testified that she resigned her duties at Hudson due to Ronald Eckstein; however the reasons cited in her resignation indicated that she resigned due to health reasons. She testified that she disagreed with Ronald Eckstein and Mr. Sinholtz, also an employee instructor in the social studies department and when she attempted to interject new ideas in the classroom, they were met with extreme criticism from Eckstein and Sinholtz. She testified that Mr. Eckstein attempted to utilize the inquiry method in a classroom setting of approximately 40 to 50 students and that that procedure was not a proper one in a class of that size. On cross examination she testified that she never spoke to Mr. Pigman regarding the stated reasons in her resignation letter. She also testified that she suffered a miscarriage approximately one month after leaving her duties at the school. She testified that health reasons played no part in her decision to resign. Case No. 1037 Jerry Morriss, an employee of Gulf High School since 1970 and the current PCTA vice president testified that he served on the negotiating team and he was the chief negotiator for the parties current collective bargaining agreement. Morriss testified that the contract contains specific language pursuant to Florida Statutes 74.100 regarding sick leave, grievance procedure, etc. He testified that he had filed grievances and that he has known Ronald Eckstein since the 1973-74 school year. He testified that Eckstein became a union member in the summer of 1973, and that Coy Pigman, Principal, knew of Eckstein's union activities based on the fact that Eckstein was a building representative. In March 1975, he testified that Pigman told him that his attitude towards him had changed. He testified that Eckstein was Instrumental in filing a grievance protesting the overlap in the teachers work schedule i.e., the 5 period vs. the 6 period day. He testified that during March, 1975, Eckstein showed him a copy of what in actuality is a renewal of his employment status only on an annual contract basis as opposed to a continuing contract. He testified that Eckstein accepted the annual contract status inasmuch as he felt that it was his only employment opportunity as Mr. Pigman was not recommending him for employment on a continuing contract basis. He testified that Eckstein asked for but was not given a list of deficiencies. Sometime in April of 1975, he testified that the issue regarding Ronald Eckstein's renewal on an annual contract basis was brought up and he was of the opinion that Eckstein was entitled to a list of reasons as to what area(s) he was deficient in. He testified that he discussed procedural due process requirements and to that Pigman did not respond. He testified that Pigman sought his advice regarding Eckstein and Pigman indicated to him that Mr. Eckstein was "riling up". According to Morriss, Pigman told him that teachers should come to him individually and not collectively. He testified that the principal told him that Mr. Weightman, the superintendent, attempted to abort his contract. On cross examination he testified that he had no direct knowledge that Eckstein applied to the county for a continuing contract but that he was present when Eckstein accepted the 4th year annual contract employment. He reiterated the fact that the principal sought his advice on many matters. He testified that Eckstein was a good teacher and his performance was better than some teachers that Pigman gave continuing contract status. He testified that he informed Mr. Pigman that he was as good as Don Roland (apparently an employee whom Mr. Pigman had given a continuing contract) and that Pigman nodded in approval. On redirect Morriss testified that as a result of Mr. Eckstein's separation, the union was experiencing a more difficult time signing members, that employees are concerned about their union activities and the union is concerned about its loss in membership. Morriss testified that he did not feel inhibited. Ronald Eckstein, the alleged discriminatee herein, was a teacher at Pasco County for approximately 3 years and testified that he was County Social Studies Chairman during the school year 1973-74 and he was a member of the skills committee during the school year 1974-75. During the school year 1973- 74, he received the "Teacher of the Year" award at Hudson Senior High, he was a member of the chess club, the faculty scholarship fund, co-sponsor of the student government association, a union member since 1973, an executive board member, a county parliamentarian, building representative during the school year 1973- 74, an FEA member during school year 1973, chairman of the constitutional revision committee and during school year 1974-75, senior building representative which required him to coordinate all building representatives. In addition, he presented grievances to the principal and organized the teachers to support the principal, Coy Pigman, to the school board. He also testified that he informed the principal of the elected members of the PCTA. He testified that on one occasion, Pigman asked him how the collective bargaining agreement negotiations were going. Be also distributed union materials in the school and his picture is on the inside cover page of the collective bargaining agreement which is Petitioner's Exhibit no. 3 received in evidence. During January 1974, Mr. Pigman, the principal, asked Eckstein why were problems relayed through him. He testified that he handled complaints for both union as well as non-union members. His testimony is that during the late part of the 1974-75 school year, the principal told him that PCTA was drawing lines and that the principal associated him with the "Uniter", which is a union publication. Eckstein was evaluated by Mr. Pigman on approximately March 21, and at that time Mr. Pigman informed him that he was "having difficulty filling out his evaluation. He testified that Mr. Pigman questioned him regarding Pigman's receipt of an anonymous letter written by a parent which was critical of some teaching practices allegedly attributed to Mr. Eckstein. He testified that Mr. Pigman failed to be specific regarding any deficiencies that he might have in his teaching abilities. He testified that overall he was graded either excellent, outstanding or not applicable, but he was rated needed improvement in the areas of not accepting comments favorably and that Pigman indicated to him that his teaching methods were good and he was knowledgeable, active and reliable. He testified that Pigman informed him that he did not like to rate teachers exceptional or outstanding. Eckstein asked Pigman if he would receive continuing contract and he replied that he was having a "difficult time". Specifically, that he had a "feeling" which he (Pigman) could not put in words. Eckstein testified that he was told by Pigman that he was more effective than others whom he had given continuing contract status. Eckstein testified that he accepted the annual contract offer because he had no alternative and that when he asked Mr. Pigman for the reasons, he replied that he "was not obligated to state reasons for denial of continuing contract status". Eckstein asked Pigman for a letter indicating the reasons for the denial of continuing contract status and also that he was extremely concerned about Pigman's "feelings". Pigman replied that he thought it would be a good idea for him to serve a 4th year on annual contract status. He testified that during a meeting during the early part of the school year he was given a letter noting that he "failed to meet the educational requirements of the community". (See Charging Party's Exhibit No. 19 received in evidence.) During that same year Eckstein was not awarded the social studies department chairmanship. Eckstein testified that he did not attempt to grieve the non-renewal of the continuing contract or of his failure to be awarded the chairmanship. He testified that he was told (apparently by Pigman) that he was "too enthusiastic". Eckstein testified that the "too enthusiastic" remark related directly to his union activities; that he has been ostracized since the non-renewal of his continuing contract; that this event inhibited other employees from freely associating with him especially the annual contract teachers and that based on this action he was declined to serve as building representative. Eckstein testified that he was asked by Pigman whether or not he wrote various articles of the "Uniter". Coy Pigman, Principal, Hudson Senior High School for the past 2 years and prior thereto served as guidance counselor for approximately 3 years, was examined as an adverse witness based on his position as principal. Pigman testified that in making the recommendation for a continuing contract teacher he consults with his curriculum advisor and evaluates classroom performance as well as other responsibilities. He testified that he also consults with his assistant principal as to whether or not a particular employee he has in mind should receive a continuing contract. He testified that if an instructor is not given verbal or written deficiencies, he would expect that that teacher would expect to be renominated on a continuing contract basis. He testified that he prefers dealing with teachers on a professional basis rather than a written basis or via written communications. He testified that in evaluating instructors he utilized day to day staff contacts. He testified that he made the recommendation regarding the departmental chairmanships during the first two weeks in April testified that he rated Eckstein strongly but that after the evaluation he told him to be "more tactful". Pigman testified that it was not uncommon for instructional personnel to have personality differences but that several employees were forced to resign due to differences that they had with Eckstein. Pigman testified that the problems with regard to personality differences were personal in some instances, for example, a Mr. Corvalis, but that as the differences related to other staff instructional personnel, the problem was significant. He related an incident regarding Ms. De Jong, who testified that she was harassed and that Mr. Eckstein made her appear immature in the presence of fellow teachers, and that the curriculum assistant and the assistant principal made similar remarks to him. He testified that according to the resignations records, Ms. De Jong resigned based on ill health, however, in actuality, she resigned due to her differences with Eckstein. Pigman also related an incident regarding a student who had been sent to see the dean by Mr. Eckstein and when the dean, Gus Manticus, was informed that the student had filled out her own discipline slip, Mr. Manticus sent the student back to Mr. Eckstein's class. There-after, Mr. Eckstein approached Mr. Manticus and shouted, "Why did you send her back to my class" Pigman testified that he asked Mr. Eckstein to refrain from yelling at his dean, Mr. Manticus. Pigman testified that he granted Eckstein leave to attend the FEA convention and the he told Mr. Eckstein to keep politics out of the school. He said he did this on a precautionary measure and that to his knowledge the witness did not engage in any politics during school hours. He testified that during Mr. Eckstein's evaluation he noted the resignations that had allegedly been occasioned by difficulties regarding personality clashes and the anonymous letter received from a parent. He testified that he thought that Eckstein was in fact the teacher whom the letter was directed to because Virginia Collins (also an instructor at the school) indicated that she was having a difficult time with students following her lesson plans and that when he visited Mrs. Collins' class, one of the students stated Mr. Eckstein and gasped and closed his mouth in a surprised manner, which in Mr. Pigman's opinion concluded that Mr. Eckstein had in fact made a statement that students should be able to choose their lesson plans; that the students outnumbered the faculty and that in a democratic society they should be able to voice their opinions. Pigman testified that he used the evaluation form as a motivational item and that he gave Eckstein a 4th year annual contract due to differing philosophies and actions. He acknowledged the fact that Eckstein was not the only teacher whom he had differing philosophies with. Be noted that Eckstein was above average and that he possessed outstanding teaching abilities and techniques, that he was not irrational or militant. He testified that he denied Eckstein the chairmanship for the social studies department based on his non-recommendation to him by his fellow instructors. He testified that he rated Eckstein as needing improvement regarding students making their own decisions with regard to what they do in class. He also acknowledged the fact that he told Eckstein that he was "over zealous". He testified that he was aware that PCTA opposed the superintendent, Mr. Weightman's, nomination. Be also testified that he knew that Mr. Eckstein was actively involved in union activities. He further recalled meetings he had with Mr. Eckstein regarding the resolution of grievances. Pigman testified that he and Eckstein had a good relationship until school year 1974-75. He testified specifically that Eckstein was not given the chairmanship due to personnel problems and recommendations in the social studies department. He also emphasized that Eckstein possessed good abilities and techniques. Pigman testified that he was unaware that the professional practices code required him to give any instructor who requests such a list of written deficiencies. On cross examination, Pigman testified that he made the decision independently regarding appointing Eckstein as a annual contract teacher rather than a continuing contract teacher. Kenneth B. Sennholtz, Jr., an employee in the social studies department was called and testified that he has known Mr. Eckstein for approximately three years. He testified that he was present during the meeting with Mr. Pigman and Mr. Eckstein in which Eckstein received his evaluation. He also testified that during that same time he received his evaluation he and Eckstein reversed roles as witnesses for receipt of their evaluations. He testified that he was impressed that the principal liked the teaching techniques, the professional preparation of developing the social studies curriculum but that the principal stated that he had "this feeling" about Eckstein. He testified that he did not quite understand what Mr. Pigman's "feelings" were but that he knew that as a teacher, Mr. Eckstein was "more effective than other teachers". He testified that Mr. Pigman informed him that employees had left and that he knew they left but it's not Mr. Eckstein's fault; that Mr. Eckstein was not to blame and that Mrs. De Jong had personal illness. He testified that Mr. Pigman later learned that it was due to the difficulties that Mrs. De Jong and Mr. Eckstein were experiencing. Sennholtz testified that he asked Mr. Pigman why he wasn't advised that other members on the social studies staff were having difficulties with him whereupon Mr. Pigman indicated that he felt that they were not that important. Sennholtz testified that Eckstein was rated outstanding or one below in most categories and that he was not aware of or knew exactly how to incorporate Pigman's "feelings" into the evaluation form. He testified that Pigman indicated reservations about filling in needs improvement on the evaluation but that he did not know where else to put it. He testified that Eckstein was not given his evaluation but he was permitted to look through his personnel file. He testified that Pigman informed him that form A was strictly an "inhouse" form and that it would not be placed in Eckstein's personnel file. On form B Eckstein was rated outstanding or exceptional in all ranges. Sennholtz testified that Eckstein asked Pigman if he would be considered for continuing contract and he replied that it was "a difficult question". Sennholtz testified that Mr. Pigman informed him that he intended to align himself with Mr. Weightman during the coming school board election and that he was aware that he, Eckstein and the union actively supported the incumbent superintendent Ray Stuart. Pigman advised Mr. Sennholtz that he would not hold his or Eckstein's political differences against them. He testified that Pigman's philosophy was one of "fitting students into the society" whereas Eckstein's philosophy was one of "developing students to their maximum potential; that society is dynamic and students should be so prepared". Sennholtz also testified that Eckstein and he had done an excellent job in dealing with controversial issues which Pigman noted and that he would handle such issues in a similar manner if he was in a classroom. Sometime during October, 1974, Pigman and Sennholtz had a conference regarding the anonymous letter which is charging party's exhibit no. 20 received in evidence. According to Sennholtz, Pigman called a conference to rebut or to be prepared for any charges that might arise as a result of the "anonymous" letter, and that he paid little credence to the letter inasmuch as the party failed to identify themselves and further that the comments would not be used against them in any manner. Sennholtz related an incident regarding a problem with the stage door during a play in which Mr. Eckstein was involved. He testified that Manticus slammed the door and the door fell down and Eckstein indicated to Manticus that the door was important whereas Manticus jokingly said that "he would fix it; it's simple to fix." Eckstein disagreed but remained calm according to Sennholtz. Sennholtz testified and the evidence is clear that the Pasco County Teachers Association supported the incumbent superintendent Steward whereas Corvalis, according to Sennholtz, stated that the union should not endorse a candidate but that if one was in fact endorsed, it should be Mr. Weightman. Sennholtz testified that Eckstein and De Jong had little or no contact but that he and De Jong worked together as a team. He testified that De Jong wasn't happy because there was a lack of independence with regard to the track program and that Eckstein modified the program to satisfy Mrs. De Jong. He testified as to problems, small problems, with Lucinda South but that they were basically political and philosophical differences and that as to the alleged difficulty with Virginia Collins, Eckstein and she are good friends. Sennholtz related his opinion that Eckstein's demotion inhibited the employee association; that they fear reprisals and that its difficult to recruit building representatives because they are fearful of criticizing board policies. He testified that he is more cautious in his dealing with school rules and regulations because he does not want to inadvertently violate a rule or regulation which could be regarded as "just cause" for his dismissal. On cross examination he testified that he had no knowledge of any family problems that existed between Eckstein and his wife and that they are mutual friends; that he (Eckstein) according to his information, was experiencing no financial difficulties, that he recently purchased a home and was thinking of purchasing a pool etc. He also testified that he attached little credence to the 'anonymous' letter and also the principal asked them to "forget about it." He testified also that Potts asked Eckstein why wasn't he selected chairperson inasmuch as Potts was only at the school approximately 1 year whereas Eckstein was a better teacher and that the opposition (to Mr. Weightman) resulted in discrimination, i.e., quasielective (appointive) positions were given to those who supported Mr. Weightman, i.e., the dean, the assistant principal, etc. He testified that no union member was given a higher position than they previously held after January, 1975. He testified that after Eckstein's nonrenewal of continuing contract, it is difficult to solicit union members. He also testified that Weightman advised employees to cancel their dues authorization forms. He testified that he noticed that Eckstein had gone through an entire school year receiving commendations and was suddenly "framed." He testified that Pigman asked Eckstein for a copy of the collective bargaining law in January and Eckstein gave a copy to Pigman. He testified that Pigman forced his respect and acknowledged the right of employees to have philosophical differences and that he (Pigman) advised that he noted "an appreciable increase in his union activities." He testified that he and Eckstein supported Mr. Pigman in obtaining the principalship at his school. He testified that Pigman felt that he was being put up to do things by Mr. Eckstein. He also testified that Pigman was given a copy of all union materials and that Mr. Eckstein was told to report directly to him. Respondent's defense to CA 1037 Richard Coot, Assistant Principal, Hudson Senior High School testified that he tallied the votes in the social studies department. The evidence surrounding the tally is reflected in Respondent's Exhibit no. 5 admitted into evidence over the objection of the Charging Party based on the fact that copies were not the "best evidence." Coot testified that he tallied the ballots on or about April 15. Coy Pigman was recalled and testified that he was aware that both De Jong and Kratovill resigned due to difficulties with Eckstein. He denied telling anyone that he placed instructor Rodey on continuing contract status although he was a better teacher than Eckstein. Pigman testified that he received an overall evaluation of 2.6 by PCTA. Pigman testified that Eckstein's union activities played no part in his decision to not renew his continuing contract. He testified on cross examination that Eckstein cooperated with him on filling out discipline slips and he also indicated he asked Rose De Jong to write a list of difficulties that she had with Ronald Eckstein. He testified that he was unaware of any health problems of Mrs. De Jong however in later testimony, he acknowledged that he was aware that health problems existed at the time of her resignation. He was unclear as to whether he was testifying that the health problem played a part but that the health reason would be the easiest way out rather than to cite the health reason which then would just be a pretext for the real reason i.e. the difficulty with Ronald Eckstein. He testified that in March, 1975, the determination was made that based on projections that at least two new teachers would be needed in the social studies department, however, the two individuals who allegedly would be permitted to vote (recommend) were not told that they would be in the social studies department. Specifically, the record tends to indicate that they were Mr. Carvealis and Mr. Manticus. He testified that he made an error in his affidavit and that there was no rating of the social studies department chairmanship recommendations. He states that he appointed Potts as chairmen of the social studies department because in his opinion "he was a better teacher than Eckstein." Case No. 1041 Fred Rydzik was employed by the county in September of 1973, as a substitute teacher and approximately 10 days later he was appointed a full time substitute teacher. Thereafter in January of 1973, he was appointed to a full time position and he was employed through June 30, 1975. His lest employment was at Gulf Jr. High School where his principal was James Campbell. Rydzik served as co-sponsor for the conservation club during the school year 74-75, he sponsored several field trips, managed the publication of the yearbook for the school year 74-75 end in order to do this, he gave up his planning period. He was also on the guidance committee, coach for the "powder puff" football team, chairman of the tutorial committee based on the selection by the guidance counselor, director of the energy management center and he taught power and industrial arts as a substitute teacher. As a full time instructor, Rydzik taught English and Personal Development. He testified that during his evaluation by Mr. Campbell, he was asked to sign blank evaluation forms in Spring 1974. He was evaluated as being effective. Rydzik refused to sign blank forms because in his mind it was not a proper thing to do based on his prior military experience. During the spring of 1974, he became involved with employees who were trying to form an affiliate of the American Federation of Teachers (a labor organization). He testified that several co-workers approached him about forming an affiliate and during the summer of 1974, in a conversation with Campbell, Campbell spoke to him about the union not being viable. Campbell, according to Rydzik concurred and suggested some building association (i.e. an in-house employee group) rather than a union. During the fall of 1974, he testified that Monique Lefebre, his department chairman, told him that he would have to wear a tie. Thereafter he was called into the office and was asked by Campbell "why wasn't he wearing a tie?" Campbell told him that "he would wear a tie." Rydzik testified that he was unaware of any rule or regulation which prohibited an instructor from coming to school without wearing a tie however he complied with Campbell's directive. The effort to form an affiliate of AFT was unsuccessful although Rydzik testified that he successfully solicited and obtained signed authorization cards for approximately 160 employees. He testified that the AFT president denied a charter to Pasco County, due to political infights. In late September, 1974, Rydzik spoke to PCTA's president Larry Smith about merging the solicited employees with PCTA and that conversation resulted in the solicited employees merging and joining PCTA as a joint group. Rydzik testified that Campbell was aware of his union activities based on conversations he had with him and because his name appeared on various flier's which were distributed throughout the school. Rydzik testified that during early spring 1975, he spoke at a faculty meeting regarding a union meeting and the principal told the faculty that they didn't have to remain whereas they had been asked to remain for other activities such as pitches for the sale of life insurance and cookware sales and other utensils on the school's proper. Rydzik testified that he was rated effective in most areas in his evaluation but that he was rated as needing improvement in the area of turning in his plan book. Rydzik testified that he asked Campbell what he meant about needing improvement and Campbell replied that "he heard that his plan book was on most occasions, turned in late." He testified that his plan book would be one or two days late. Rydzik testified that in order to rectify his problems regarding his plan book, he talked to various experienced teachers who shared ideas and that each teacher who observed his plan book indicated that his plan books were better than most. He testified that two week units, a planning period, was a requirement whereas he was required to submit three week units and that his percentages were always rejected whereas other teachers were not. Rydzik testified that he did not grieve his problems regarding his plan book because of his annual contract status and also because various teachers warned against grieving that matter. Rydzik testified that criticisms regarding his plan book grew worse as the year proceeded and although he tried to correct whatever problems he experienced, he was never able to do so. He testified that to his knowledge, he was never personally observed by Mr. Campbell or Mrs. Lefebre in the classroom. However, he testified that during his evaluation he was told that "he had a good class." During the evaluation he was criticized about not patrolling bathroom duties as scheduled, however, he testified that he in fact followed the schedule. Rydzik testified that he was tardy approximately six times during the school year (school started at 6:30 am.). He states that on two occasions he was late approximately 15 minutes, and four or five times he was late less then 10 minutes. He also testified that on two occasions he was late as much or more than an hour. 4/ On April 2, 1975, Rydzik returned to work after having been on a 15 day off duty track and was at the time told by Campbell that he would not be recommended for employment. Rydzik asked Campbell why he was not being recommended for employment for the coming school year and Campbell replied "he could get someone better all around." Rydzik testified that he and other union members including Larry Smith, had discussed this problem and Smith informed him that he would not file a grievance inasmuch as similar grievances had been rejected by Respondent. He testified that Campbell informed him that he would reply to his request for a written list of deficiencies but Campbell never replied. He testified that he was a member of the bargaining team, that proposals were formulated sometime in January, 1975, and the bargaining sessions commenced during the spring of that year. In addition to serving on the bargaining team, Rydzik ran for the union vice president but lost that election. Rydzik testified that he received his second evaluation which is Charging Parties no. 25 received in evidence on the date therein noted although the date of the writing is different from the date that he actually received it. That is, the observation period as reflected on the exhibit covers a period from June 1974 thru June 1975 whereas Rydzik received it on April 22, 1975. Rydzik testified that he was regarded as the information source regarding any contract problem and fellow employees constantly inquired of him the status of the contract. He testified that the Math Department Head, Mr. Gibson, inquired of him regarding suggestions during January thru March of 1975, and he was viewed by him as a leader regarding contractual knowledge. Charging Parties no. 26 is a petition supportive of Rydzik and is signed by approximately 35 of the 60 instructors. Rydzik testified that employees were fearful to associate with him especially the annual contract teachers due to their financial obligations. He testified that several employees indicated that "if the union could not protect its own certainly it could not protect them." Rydzik testified that Mike Thomas of PCTA cautioned against his taking an active role in the union inasmuch as he was on annual contract rather than other employees who had tenure and could provide the leadership. James Campbell, the principal since February, 1972, was called and examined as an adverse witness. Campbell testified that there are approximately 75 instructional personnel including the support personnel. He testified that he evaluates on the basis of his daily observation of employees end that he hired Rydzik based on a recommendation of a Mr. Tucker. He testified that he evaluated Rydzik at least once although according to regulations he was required to do so at least three times per year. Charging Parties no. 27 received into evidence is the evaluation of Fred Rydzik. Campbell testified that he rated Rydzik in the low to strong areas in most categories and that he was "satisfied with his work." He denied ever asking Rydzik to sign a blank evaluation form. He recalled calling Rydzik in to discuss the incident regarding his not wearing a tie during school hours. He testified that Rydzik informed him that he could grieve the matter but that he would wear a tie until the grievance was resolved favorably on his behalf. He recalled the faculty meeting wherein Rydzik was introduced as a union representative. He testified that he called Rydzik in to inform him of his tardiness and his failure to fulfill his bathroom duties. He testified that Rydzik was late as much as 5 minutes on two occasions and 30 minutes on several occasions; he also recalled the problem with regard to Rydzik's planbook. He testified that his rapport was somewhat weak in that he failed to speak with and listen to his department head. The only deficiency notes on his evaluation was lateness in turning in his planbook. He was aware of no other instructional personnel that Rydzik had problems with. Campbell testified that Rydzik inquired why he was not being recommended for employment for the coming school year whereupon he informed him that it was a personnel cutback. He testified that he lost a total of six employees and he filled three of those positions which included a Spanish instructor and an industrial arts instructor. He testified that Rydzik was not appointed or recruited for the industrial arts position inasmuch as he lacked state certification in industrial arts. Campbell testified that he did not respond to Rydzik's request for a written list of deficiencies because he felt that that was "within his discretion." Campbell testified that he did not personally observe Rydzik. He testified that he would see Rydzik in the hall and around the campus but he relied on the evaluations of his curriculum assistant and the assistant principal and it was his own decision not to rehire Rydzik based on his discretionary authority. Campbell testified that he retained teachers normally with effective evaluations. Campbell testified that from the period of March 21, which was the date of his first evaluation of Rydzik thru April 2, 1975, which was the period that he made the decision not to renew or rehire him, he witnessed no improvement in Rydzik's tardiness, his bathroom duties or his plan book difficulties. Campbell also denied that he told Rydzik that he preferred a local building representative rather than a union. With regard to Rydzik's protest of the failure to provide english books to each student, Campbell testified that he referred the letter to the language arts department wherein they advised that books would not be a worthwhile expenditure for the current year but the parties did agree to provide books for the coming school year. Campbell indicated however that he did not respond to the union's letter concerning this problem. He testified that he is of the opinion that he is an administrator and the department head can best determine the needs of students due to their daily contact. Campbell testified that he was never told by Dr. Forguson that the discharge of Rydzik was not a grievable matter. Campbell admits having knowledge of Rydzik's union activities and also of knowing that Rydzik and others were interested in breaking away from PCTA and forming an affiliate of FTA. Campbell testified that he was unaware of Rydzik's relationship with his peers or what they thought of him personally. Campbell testified that he did not personally observe Rydzik's plan book prior to his determination to not renew his contract. Campbell testified that he was rated by PCTA in June and that his overall rating was 3.6. Linda Elkins, an art teacher of approximately 5 years and who is on continuing contract has known Rydzik for approximately 1 year. Elkins testified that she approached Rydzik regarding forcing a union and that he attended several meetings with officials of AFT. She testified that Rydzik was very active in the union's organizational drive. Elkins testified that she had a son who was one of Rydzik's students end he rated Rydzik as the "top teacher" of the school. She testified that she taught some of the same students as Rydzik and she heard favorable comments from several students regarding his teaching ability. She testified that she observed Rydzik's plan book and it was more thorough then many others whose plan books were approved and she was accordingly led to believe that Rydzik was about to be "axed." She also testified that it was probably true that Rydzik should not have played an active role in the union drive. She testified that since the discharge of Rydzik, most employees without continuing contracts status are afraid to participate in collective activities. On cross examination, she testified that several employees informed her that inasmuch as they were on annual contracts they would not sign the petition supportive of Rydzik. She testified that over 100 students commended Rydzik on his teaching abilities. Elkins testified that she was late and she received a note cautioning her to not be late again. She reiterated the fact that morale seemed to drop after Rydzik's separation. Donald W. Livesey, an employee for approximately 5 years was called and examined as follows: Livesey testified that Rydzik assisted him in trying to bring an affiliate of AFT into the school. He testified that Rydzik solicited him to join the union and that Rydzik got along with most employees. He testified that Rydzik "could have had a problem with his department head, Monique Lefebre." He testified that Rydzik asked to borrow his plan book which he loaned to him. He testified that Rydzik took his plan book home and based on his observation of Rydzik's plan book, it was better than most teachers. He testified that Rydzik was one of the "better dressed teachers in the school," end the parents often expressed a desire to have him teach school there based on his good rapport with kids. He testified that Rydzik was very active in all the plans and extra curricular activities end that his plan beak was very good. He expressed the opinion that Rydzik was a "superior teacher" and does not remember Rydzik not being on bathroom duty. He testified that during early 1975, the tension mounted after the commencement of collective bargaining negotiations. He also testified that a co-employee, a Mrs. Snell, did not sign a petition supportive of Rydzik until she was informed that she would be recommended for employment for the coming school year. He stated that it is common knowledge throughout the school that employees fear reprisals for testifying and they are expressing tenseness due to Rydzik's separation. He expressed his opinion that Rydzik was terminated due to his union activities. On cross examination he reiterated basically the same testimony that he testified to on direct. Barbara Snell, an employee at Hudson High School for approximately 3 years was called next and examined as follows: Snell testified that she had been tardy approximately 6 times during the period from July 1, 1974 thru April 1, 1975. She testified that she arrived earlier on numerous occasions, approximately 10 minutes and she on occasions remained late. She testified that she shared bathroom duty with Rydzik and that because she knew that they were being watched, she made a special effort to avoid being remiss in her bathroom duties. She testified that she could overhear Mr. Rydzik's class lectures because their planning periods were staggered and in her opinion Mr. Rydzik was "one of the best teachers she had seen". She testified that she feared reprisals from her employer due to the fact that she is an annual contract teacher. She voiced her opinion that the atmosphere around the campus has been somewhat tense and the employees fear being critical of the principal, Mr. Campbell. She testified that she signed the petition supportive of Mr. Rydzik after she had been rehired for the current school year. Bruce Bluebaum, a math teacher of approximately 4 years was called and testified that he knew Mr. Rydzik and that their homerooms were on opposite sides of the hall facing each other. He testified that on numerous occasions he observed Mr. Rydzik on bathroom duty and he was always in and around the bathroom during the class period changes. He testified that students liked Rydzik very much and always "flocked around him". Bluebaum testified that Rydzik worked diligently about his planbook and in his opinion, his plan book was excellent. He testified that Rydzik's planbook would always be turned down based on the dislike that existed between Mrs. Lefebre, his department head, and he. He opined that Mrs. Lefebre would search to find a way of "axing him". He testified that Rydzik was regarded as the "leader in the school". As to Rydzik's teaching abilities, he related an incident wherein he put on a mock trial and he also generally stated that Rydzik was "very innovative and a very good teacher". He gave the opinion that Rydzik was dismissed because he was "too vocal" in union activities and due to the dislike of him by his department head. On cross examination, he also opined that the teachers around the campus felt that the principal, Mr. Campbell, was led astray and made the wrong decision with regard to discharging or, that is, not rehiring Rydzik. He testified that when a union meeting was announced, Mr. Campbell would make the announcement in a manner which tended to show that he somewhat disliked having union meetings held on the campus facility whereas employees were asked or "forced" to sit through meetings regarding sales of "pot and pans". He indicated this same procedure with regard to insurance sales. Bluebaum testified that grievances were not well accepted around Gulf High School. Ruth J. Morris, a community school manager and employed at Gulf Junior High for approximately 9 years testified that she has known Fred Rydzik for approximately 2 years. Morris is presently the school's building representative. She testified that she had dealt with the principal, Mr. Campbell, on numerous occasions and she has assisted in the development of evaluation forms. She testified that evaluations tend to lose their worth because "different standards are used" nor do principals place much reliance on evaluations but that a new teacher will tend to feel that if they are not evaluated highly, it will play some important role in whether or not they will be rehired the next year. She testified that she evaluated Mr. Rydzik's planbook and told him that it was excellent. She testified that the employees in her opinion were afraid of criticizing Mr. Campbell but in cross examination she also testified that complaints were received satisfactorily by him. Campbell, she noted, was rated very good in an evaluation conducted by PCTA. Respondent's Defense to CA-1041 Monique Lefebre, Department Chairman, Social Science at Crawford Junior High School, has served in that capacity for approximately 5 years. She was the alleged discriminatee, Fred Rydzik's department chairman. Lafebre testified that Rydzik turned in his planbook only once or twice and that she did not talk to him about not timely turning in his planbook. She testified that initially Rydzik failed to perform his bathroom duty but that after warning him, he fulfilled his duties in that regard. This was noticed by her particularly after Rydzik received his mid-term evaluation. Lefebre also testified that she noted certain deficiencies in Rydzik's planbook percentages and that based or the manner in which she criticized them, there was no way that he could correct the deficiencies inasmuch as the time period had passed wherein such deficiencies could have been corrected. She testified that during a faculty meeting at the early part of the school year, male instructional personnel were told to wear a tie during school hours and to refrain from walking out of the faculty lounge with coffee. She testified that she observed Rydzik not wearing a tie for a period of approximately 15 days after this rule was announced and when she spoke to him about not wearing a tie and he failed to heed her advice, she then spoke to the principal. She testified she was aware that other teachers violated the coffee rule also although she did not personally see them. She testified that this was an unwritten rule and to the best of her recollection Rydzik was not present when the principal announced the rules regarding males wearing a tie or that they were not to walk out of the faculty lounge with coffee. She testified that the problem with regard to Rydzik not performing his bathroom patrolling occurred during the early part of the year, perhaps in late August or early September but that after he was evaluated during the early part of the year she did not notice him failing to perform his bathroom duty. James Campbell, the principal at Gulf, indicates that the sign in sign out sheets have been in effect for quite some time at the school. Respondent's exhibit no. 9 reflects inter alia, the sign in - sign out records of Rydzik and other instructional personnel at the school. He testified that he noted on a few occasions Rydzik would write in or drawn in a "smiling face" in the spot where he was to sign in. Campbell testified that based on his calculation Rydzik was late on approximately 51 occasions during the school year and that 3 occasions his secretary called him and he was late for as much as one hour. Campbell was rated by PCTA and on that evaluation form he was rated 3.6 of a possible 5. (See Respondent's exhibit no. 10, received in evidence). Campbell testified that union activities played no part in his decision to not rehire Rydzik nor did he have any knowledge as to Rydzik's serving as a building representative or running for any union office. On cross examination, Campbell testified he evaluated Rydzik on or about September 22 and his final evaluation came approximately 3 weeks later. He testified that in his opinion, 3 weeks was sufficient for Rydzik to correct any deficiencies noted on his evaluation. Campbell testified that school officially starts at 6:30 and homeroom begins approximately 6:45 a.m. He also testified that during the early part of the school year the time clock was not working and a small clock was used to apprise the employees of the correct time. A casual or cursory look at the time sheets indicates that there were a number of instructors who were late and that the correct time was not always adhered to nor was there any rigid policing of the time sheets. That is to say that instructors would often record that they would come in at say 6:30 a.m. whereas they might in fact arrive at 5:30 a.m. or on the other hand they might arrive at 6:45 a.m. and the same is true for signing out. Specifically employees may sign out at 2:00 and leave the building at say 1:30 or they may leave as late as 4:00. Campbell testified that he did net regard the fact that employees signed in when in fact they arrived earlier than that period as being violative of the "sign-in" rule and that the only objection he had to such procedure was a situation where for example a faculty member would leave the school say at 1:40 and sign out at 2:00. The records reflect that other employees were late a number of times. One case in point is Lucia Adkinson. Her time sheet reflects that she was late as much as 27 times during the past school year for a total of 665 minutes. The record also reflects that there was no method whereby one could determine whether employees were late or whether they were out on school business. Campbell's testimony regarding the sign-in, or time sheets reflect that a number of employees were late and this can be established by looking at the time sheets for Gene Lydman, Debbie Snyder, Mrs. Fisk, William Lynch, and a number of other employees, too numerous to recite herein. It was also noted that the time sheets are recorded in pencil and are easily distorted and difficult to determine if in fact an alteration has been made. Testimony was also heard by Campbell that on the PCTA evaluation form his lowest rating was in the area of "evaluating objectively after sufficient observation". Dr. Ferguson was called and testified that based on an examination after the hearing in the subject case commenced, he was able to determine that 5 employees were promoted to managerial or non-unit positions after Mr. Weightman was nominated. He testified that one employee was put on 4th year continuing contract and served as a building representative rather than on annual contract. He testified that throughout the county, approximately 19 annual contract teachers were not rehired and that 7 teachers were put on 4th year annual contracts. He testified that an examination of the school boards records indicate that on June, 1975, there were approximately 590 employees on dues check off and that on July 28th the number was 429 employees and the 429 figure does not reflect those employees who were serving on D track. Ferguson testified that the only alleged discriminatee that he knew was Ron Eckstein and this knowledge came from observing his picture in the collective bargaining agreement which is charging parties exhibit no. 3 received in evidence. At the conclusion of case numbers 1037; 1040 and 1041, counsel for Respondent asked the hearing officer to take official notice of the official regulations of the Department of Education and official notice of Florida Statutes 447. Thereafter Respondent rested as to cases 1037; 1040 end 1041. General Counsel end Charging Party's rebuttal in cases 1037, 1040 and 1041 Ronald Claybeck, an unemployed male teacher who served the previous school year at Hudson Senior High testified that his prior experience included serving as a teacher in New York State's school system for approximately 12 years. Claybeck testified as to conversations preceding the election and subsequent to the election of the social studies chairmen at Ronald Eckstein's school. Claybeck testified that there were conversations regarding the number of possible ballots to be cast regarding the recommendation to the principal for the social studies chairmanship and there was some discussion as to whether two deans who were working in the social studies or other departments would be permitted to vote. Those individuals are a Mr. Carvealis and a Mr. Menticus. He said the conversation was generally that the two deans would be permitted to vote in the election. He testified that Carvealis indicated that he would vote for Potts who in fact received the chairmanship due to a personality clash that Carvealis had with Eckstein. Clayback expressed a reluctance to testify end in fact testified under subpoena because he "feared his wife's job (an elementary teacher at Hudson Elementary School)." Claybeck testified that he and Potts are neighbors and that Potts told him that Eckstein was "a competent teacher end that he (Potts) indicated as much to the principal, Coy Pigman". He testified that Potts indicated to him that he was called in by Pigman and asked if he wanted the chairmanship. Clayback testified that Potts remained neutral as to the chairmanship because Eckstein was a good teacher although he differed with him regarding his teaching methods. Clayback testified that it was obvious that Carvealis and Eckstein did not agree with each other. Clayback testified that another factor leading to his reluctance to testify was occasioned by the fact that he was called approximately two days before his appearance and he had an unlisted phone number. He testified that he was told that if he testified, "his wife's job would be in jeopardy". On redirect examination Clayback testified that he attended the union hall and was given a subpoena by Mr. Matthew, charging parties' attorney and he also gave his phone number to Larry Smith, union president. Fred Rydzik was also recalled and testified that he was not given a new school book by his department head, Mrs. Lefebre. Rydzik also testified he was not evaluated by Lefebre, nor did she assist or advise him of his duties nor did she tell him that he was deficient. Rydzik testified that he turned his planbook in approximately 12 times at 3 week intervals as per the schedule and that to the best of his recollection he failed to turn the planbook in only on two occasions meaning that he in fact turned the planbook in approximately 10 times. He testified that his planbook was never approved by Mrs. Lefebre. He testified that he was unaware of any dress code relating to males wearing a tie. He also denied that he failed to wear a tie on 15 occasions as testified to by Mrs. Lefebre. Mr. Rydzik also denied taking coffee to areas other than the yearbook planning and production area and that he served his bathroom duty daily. Rydzik testified that the schedule relating to patrolling the bathroom and the hall was "a loose schedule". Rydzik testified that on 3 occasions the office secretary called and informed him that he forgot to sign in and in those instances, his entry for signing in remained blank. He testified that he was late on no more than seven occasions and this was for a period of 5 minutes or so. He testified that there were approximately 3 times that he was late as much as 1 hour and that his examination of the time sheets indicate that there were approximately 12 alterations. On redirect examination, Rydzik testified that sometime in January, 1975, Campbell told the employees that they would not sign others out and that he obeyed this mandate. Josephine Lofland was also called to testify and testified that it was common practice to sign in at the proper time even though employees did not always arrive at the time recorded. She testified that on example of this was Art Engle, a curriculum coordinator who was late on several occasions according to a Mrs. Williams. This concluded the evidence taken in cases 1037, 1040 and 1041. Case Number Ca-1062 and Case Number CA-1082 Larry Smith, the union president was called and testified that he assisted in the negotiations for end ratification of the current collective bargaining agreement. (Charging Parties' exhibit no. 3). Smith testified that both parties were pleased to ratify the contract and they discussed the amiable relationship that existed based on the contract. Smith testified that good faith bargaining existed through November, 1974, end that the union supported the incumbent superintendent, Ray Stewart, actively. Smith testified that he started working with the newly elected superintendent Weightman, late in November, 1974. Smith testified that in late January or early February, 1975, the negotiations and the atmosphere appeared to, in his opinion, "breakdown." He testified that he requested voluntary recognition and that he presented to Dr. Ferguson, the Respondent's designated collective bargaining agent, approximately 90 percent of the employees who had executed authorization forms. He testified that Dr. Ferguson recommended recognition be granted on a voluntary basis. Accordingly, PCTA was certified by PERC on April 17, 1975. Negotiations for a collective bargaining agreement began on or about April 24, 1975, and a mediator was assigned approximately 60 days thereafter, after the parties had reached an impasse. Smith testified that he contacted a mediator and the mediator indicated that he would be pleased to assist the parties at arriving at a settlement but based on his experience in the mediation field, it would be fruitless to do so unless he was requested jointly by both parties. Smith testified that a special master was assigned sometime in early July, 1975. Smith testified that he received a written authorization from Mr. Weightman designating Ferguson as the school board's agent for collective bargaining. Smith testified that he was present at all the negotiations and acted as the union's chief spokesman. The proposal submitted by the union included salary and increment proposals, planning days etc. Smith testified that at a school board meeting on or about May 6, 1975, the school board, over his objection, adopted the proposed schedule as provided in the old collective bargaining agreement i.e., (Charging Parties' exhibit no. 3). Smith indicated that this objection came through oral objection and by a letter sent to Mr. Ferguson prior to May 6. Smith testified that Ferguson was not prepared to and did not present salary proposals, based on a claim that the parties or the school board did not know its true financial condition. Smith testified that at no time did the union waive its right on salaries, planning days or salary increments. He testified that increments were cut by approximately 5 percent and instructional personnel salaries were frozen at the old rate. Smith recalls making an objection after he was shown charging parties' exhibit no. 33 which was received in evidence. Smith testified that he had no indication that check off authorizations would be revoked prior to the cut off by the school board. Charging parties' exhibit no. 33 received in evidence is a reflection of the evidence regarding dues check off. Smith testified that he advised Ferguson that the dues authorizations were continuous in nature and that article 2, section 2, page 3 of charging parties' exhibit no. 3 in fact provides for continuous check off. Smith testified that he was afforded a short period i.e., from July 28th thru August 5th to sign the D Track teachers and this is evidenced by charging parties' exhibit no. 34 received in evidence. He testified that he expressed concern about the short period of time to Dr. Ferguson. The testimony indicated that D Track teachers were off duty during the period In question and therefore they had to be contacted either at their homes or through other means. Smith testified that he thereafter contacted PERC regarding the dues check off problem and PERC indicated its opinion which in essence is an advisory opinion indicating that in its opinion the dues check off authorizations were not in violation of Florida Statutes, 74, Chapter 100. On cross examination Smith reiterated the fact that after Mr. Weightman took office the bargaining relation ship appeared to "breakdown." Smith testified that on July 2, Dr. Ferguson advised him that if employees were not signed by the date indicated in his letter i.e., August 5, they would not be deducted.
Recommendation Based on the foregoing findings and conclusions I hereby recommend that the Public Employees Relations Commission enter an order finding that the actions by Respondent, as set forth above and more specifically in the subject administrative complaints, constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), Florida Statutes, as alleged. RECOMMENDED this 28th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING 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 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
Findings Of Fact On August 6, 1981, an inspector employed by the Petitioner Department of Agriculture and Consumer Services took gasoline samples from "super lead free" and "lead free" pumps Identified as "Ben 2096" and "Ben 1693", respectively, at Barnett's Texaco Station, in Fort Meade, Florida. The samples were tested for suspicious substances and it was found that the "super lead free" had an octane level of 87.8. The sample from the "lead free" pump contained an octane level of 91.5. Based upon this information, the chemist noted that the "super lead free" and "lead free" gasolines were probably placed in the wrong pumps at the station. The "super lead free" sample was legal as "lead free" and the "lead free" sample had an octane which would qualify it as "super lead free." As a result of the test results, a stop-sale notice was issued by the Department against the "super lead free" pump. Since approximately 350 gallons of "lead free" regular was sold as "super unleaded", an assessment was made by the Department equal to retail value of the product sold to retail customers. Upon investigation, it was determined that the "super lead free" and "lead free" gasolines were not placed in the wrong pumps but rather an employee of Barnett's Texaco inadvertently placed the wrong panel indicator on the two adjacent pumps during a price change. The problem was quickly resolved and special precautionary procedures have been instituted to prevent this error from happening in the future. These procedures include a double check by different personnel each time a price change requires removal of panels. Additionally, Smith Brothers Oil Co., Inc., will double check the dealer to insure this procedure is followed. The facts set forth above are not in dispute. The only dispute between the parties 15 whether under the facts of this case the Respondent Smith Brothers Oil Co. Inc. will entitled to a return of all or part of its $490.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a Final Order returning $245 to the Respondent. DONE and ORDERED this 14th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1982 COPIES FURNISHED: Robert A. Chastain, Esquire Doyle Conner, Commissioner General Counsel Department of Agriculture Department of Agriculture and Consumer Services and Consumer Services The Capitol Mayo Building, Room 513 Tallahassee, Florida 32301 Tallahassee, Florida 32301 Wallace W. Storey, Esquire 160 South Broadway Bartow, Florida 33830
