Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issues in the case are whether or not the Respondent (1) during the course of an organizing campaign by the Union engaged in a course of conduct amounting to unlawful surveillance and/or creation of the impression of surveillance (2) whether or not Respondent unlawfully refused to bargain in good faith with the Union and (3) whether or not Respondent unlawfully refused to execute dues checkoff authorizations signed by its employees. By the alleged acts referred above, the Respondent allegedly engaged in unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Florida Statutes 447. As stated, these issues arise on a complaint issued October 16, by the acting general counsel of the Public Employees Relations Commission (hereinafter referred to as PERC), as amended at the trial after PERC's investigation of-the charges filed by the Union on various dates. The Respondent denied the commission of any unfair labor practices. At close of the testimony all parties waived oral argument. A brief has been received by counsel for the general counsel and has been carefully considered by me in preparation of this hearing officer's report and recommended order which was signed and released by me on March 17, 1976, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and considerations of arguments of counsel, I make the following:
Findings Of Fact Respondent's operation and the status of the Union. The Respondent is now and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Union is an employee organization within the meaning of Section 447.203(2) of the Public Employees Relations Act (hereinafter referred to as the Act). The Union was certified by the Commission on April 22, order no. 75E-6-31 and the parties commenced bargaining on or about April 23, 1975, and notice of negotiations was forwarded to the Commission's office on or about May 5, 1975. By way of background, the case was originally noticed for hearing to commence on October 29 and 30, 1975, in the Escambia County Courthouse. The Respondent, on October 29, applied for and obtained a temporary restraining order which had the effect of commanding the Public Employees Relations Commission to refrain from conducting or attempting to conduct the hearing based on the charges alleged in the subject complaint and notice of hearing. On the following day, the School Board filed a non-suit which had the effect of resolving the temporary restraining order. Prior thereto and subsequent to the non-suit, the Respondent filed numerous motions for continuance and dismissal based on alleged procedural violations. The basis of the procedural deficiencies were that (1) PERC failed to advise the Respondent of its investigation prior to issuing complaint and therefore the complaint was improperly issued. Additionally, the Respondent alleged that it has filed charges of a similar nature against the Union and that PERC has failed to expedite investigation of said charges which according to Respondent, amounts to violations of bad faith bargaining by the Union also in violation of Florida Statutes 447. Accordingly, Respondent asked that continuance be granted and that a period somewhere in the nature of 30 days be allowed to consider the charges alleged. Respondent also filed motions to dismiss alleging inter alia, that the charges filed by the Charging Party are false and groundless and that representatives of the Charging Party and PERC's agents have colluded to effectuate violations of its rules and enabling statutes as set forth in the complaint. Based thereon states the Respondent, it has been deprived of its opportunity for investigation and defense of the matters asserted in the administrative charges and the complaint and therefore the complaint should be dismissed. Aside from the fact that the hearing officer is without the authority to grant motions to dismiss, looking to the motion to dismiss and the motion for continuance, no evidence other than the bare claims were made to substantiate all of the allegations contained in both the motion to dismiss and the motion for continuance. Accordingly they are tentatively denied by the undersigned and the motion to dismiss is referred to PERC for final ruling. Respondent's counsel also made a motion for continuance on the final day of the hearing and as grounds therefor alleged that he had been recently retained. Aside from the fact that the testimony revealed that the law firm had been retained to represent Respondent months prior to the instant hearing, Dr. Moses, Respondent's chief negotiator under- took to represent Respondent at the hearing. Additionally, the motion was denied as being untimely filed. THE REFUSAL TO DEDUCT DUES ISSUE Guy Price, Special Education Teacher for approximately 4- 1/2 years, testified that he is a union member and that he signed a dues deduction authorization form in 1971. 2/ Price testified that the Respondent has refused to deduct dues since on or about July. He testified that the Respondent caused to be circulated in October, a notice which indicated it would only deduct dues pursuant to authorizations on a lump sum basis for the yearly dues which, according to the testimony, amounted to $110.00. He testified that inasmuch as he could not afford the lump sum deduction, he canceled his authorization go or about October 6. He testified that he was aware personally of approximately 10 other employees who canceled their dues deduction authorization based on the fact that according to his testimony, they were unable to afford a lump sum deduction. He testified that the Respondent permits piece meal deductions of other organizational and benefit drives whereas it refused to do so in this case. On cross-examination, he testified that during the months of March thru June, no deductions were made. On redirect examination, he reiterated his prior testimony that he canceled his dues deduction authorization based on the fact that he could not afford the lump sum payment as indicated by the Respondent's notice to employees. Carl Ledehman, an employee for approximately 18 months and a Union member indicated that he canceled his dues deduction authorization based on the fact that he too could not afford a lump sum deduction as testified to by Guy Price. He testified that the Respondent indicated sometime in early October that it would only deduct Union dues in a lump sum fashion and that based on this announcement, 3/ he then canceled his dues deduction. He testified that inasmuch as the Respondent indicated that it would only deduct dues pursuant to a lump sum method, he canceled his authorization and that he did so for no other purpose. He testified as did Mr. Price that to his knowledge, the Respondent deducts contributions for hospital, cancer and the united givers fund as well as other benevolent and humanitarian purposes. Albert M. Robuck, an employee for approximately 6 years, testified that he, signed a dues deduction authorization form yearly and that the employer refused, sometime in October, to deduct dues on a monthly basis. He testified that he received several memos citing in essence that Respondent would only deduct dues on a lump sum basis. Based on this statement, he canceled his dues deduction authorization on or about October 12, and that along with his cancellation, approximately three other teachers canceled their dues deduction authorization. He testified that he was aware that the employer is presently deducting health insurance, annuities and other deductions monthly. Jackie Barrineau, the Union's Chairperson and an employee for approximately three years as a teacher, testified that she has been a Union member throughout her employment with the Respondent. She testified that the Respondent submitted what she considered to be exorbitant proposals for the cost of processing the dues deductions and that the proposals ranged from $12,500.00 annually to its last offer which amounted to .05 per card per month for each employee utilizing the dues deduction procedure. On April 21, 1975, she testified that the Union agreed to pay $325.00 for dues deduction for the remainder of the school year, whereas the Employer on July 15, proposed the amount of $12,500.00 for dues deduction. She testified that the Employer amended its position and countered with the same figure it had originally proposed. Approximately two days later on July 17, the board reduced its cost for processing dues deductions and reduced the $12,500.00 figure to .50 per card per month for each employee utilizing dues deduction. In late July the parties declared an impasse and during the numerous proposals which were submitted during the impasse on or about September 4, the Respondent resubmitted the $12,000.00 figure as the cost for deducting dues. See for example Charging Party's Exhibit 7 received in evidence and is made a part hereof by reference. She testified that despite the adamant position taken by the Respondent on dues deduction, she did not cancel her dues authorization. On cross-examination she corroborated the fact that the parties tentatively agreed to a provision whereby the Respondent would deduct .05 per card for each member utilizing the dues deduction authorization procedure. The Employer advised that it had received legal advice regarding the legality of the notice given employees whereby it would only deduct dues in a lump sum and that a local attorney, William Davenport, advised that that procedure was permissible. She testified that she is charged with giving collective bargaining advice to all employees within the County School System. She testified as to a problem the Respondent advised that it had relative to incorrect signatures and improper amounts being recorded on dues authorization cards and that that was part of the stated motivation for the Employer cancelling the procedure of deducting dues on a monthly basis. She testified that as to the Respondent's release of its intention to deduct dues only on a lump sum basis, a substantial number of employees withdrew from the Union. The Respondent also claims that it refused to honor existing dues authorizations which were executed by its employees because numerous cards were either incorrectly executed or were undated. There is nothing in Section 447.303, F.S., which saddles Respondent with the responsibility of insuring that dues deduction authorizations are properly executed. Nor was there any credible testimony from any employee that dues deductions were being made without their express authorization. It thus appears that the Respondent's stated concern about the legality or propriety of the dues authorizations was nothing more than a pretext to effectuate its real desire of securing from employees mass cancellation of their dues authorizations and thus stifle the Union's ability to function. This becomes more apparent when consideration is given to the Respondent's attitude at the bargaining table relative to the amount that it proposed to the Union for the administrative costs for providing the dues deduction service. Respondent maintained the same basic "no give" position on this issue until the entry of the mediator into the negotiations. Although not specifically urged by Respondent as a defense to the refusal to deduct dues allegation, small mention was made of the fact that no contract was in existence between the parties when it (Respondent) ceased to deduct dues on a monthly basis as had been its practice during the remainder of the school year following the Union's certification as exclusive bargaining representative for Respondent's instructional personnel. Inasmuch as the statute which is pertinent to dues deduction (447.303, F.S.) at no point refers to the existence of a collective bargaining agreement as a prerequisite to dues deduction authorizations, the undersigned is constrained to conclude that the statute which is specific on its face, must be applied literally. Accordingly, even if Respondent had urged that as a defense for its actions stated above, the undersigned would recommend rejection of that ground as basis for its refusal to deduct dues pursuant to authorizations. 4/ THE SURVEILLANCE ISSUE Jack Bridges, who is the Employer's Director of Industrial Services and who is responsible for the media, news releases, etc., testified that he photographed pickets who picketed the Respondent's school administration building during the summer months of 1975. He testified that Charging Party's composite of approximately 17 pictures which the Respondent utilized in order to maintain a "historical" file. He testified that he was responsible for taking approximately 7 pictures and he recognized, after having been shown Mrs. Barrineau, Martha Smith and another teacher whom he described as being an active Union supporter. He testified that there was no blocking of ingress and egress into the school building and that the pickets picketed approximately 6 times. He testified that he had received advance notice from the news paper and TV advertisements that there would be a picket at the administration building. He testified that the photos were taken to the Director of Employee Relations, Dick Phillingem. 5/ He testified that the photos were taken with the school's camera and film. Bridges further testified that there were no blacks picketing during the time the photos were made and that to the best of his recollection there were only two pickets. On cross-examination he testified that he had received advance notice of racial picketing but that no photos were made nor was the division in which he headed asked to take pictures of such demonstration. On further recross, he testified that he was, contrary to his earlier testimony, asked to take pictures of racial matters. Thomas J. Le Master, the Respondent's Assistant Superintendent for approximately 5-1/2 years, testified that the pictures were taken to determine whether or not employees were breaking the law and to place such pictures in the labor files. He testified that Phillingem asked him if he had anyone to take pictures whereupon the answer was elicited that pictures were made such that there could be a record of labor relations. He testified that he was present at a school board meeting during mid September and that the pictures were discussed at such meeting and during a further conversation with Mr. Phillingem. He testified that he talked closely and worked closely with Phillingem on all matters relating to the operation of their division. When shown the pictures in Charging Parties Exhibit 11, he was able to identify the subjects in the pictures A,D,C,F and G. He testified that he presently serves on Respondent's bargaining team and has done so since January, 1975, when the pertinent divisions of Section 447, Florida Statutes, became operative. He testified that he had not witnessed a labor trial although he had seen Charging Party's Exhibit 2 which as stated was the notice to employees regarding dues deductions. The notice bears a date of October 2nd. On cross-examination, he also testified that the pictures were shown at a public board meetings and that few comments were made regarding the subjects contained on the pictures. He testified that the file which the pictures were part of, is used in collective bargaining negotiations between the Charging Party. He did not elaborate on this point. He testified that he obtained his advance notice for the picketing through either the news paper or the television. Dick Phillingem, Manager of Employee Relations for the past year, has been employed by the Respondent for approximately 24 years in various positions. He testified that he maintained records regarding employee relations and he referred to such correspondence a "blurb" sheets and Escambia Education Association fliers. He testified that he did not talk about his prior conversation regarding this hearing. He gave Le Master instructions to take the pictures. He testified that the instructions were to take pictures of bath the pickets and the legends contained thereon. Messr. Bridges called to inform him that the pictures were to be delivered to him via a courier and that he thereafter disbursed them at the Board meeting. He utilized the pictures to keep current his file which he uses to monitor Union activity. During the normal course of his work day he spends approximately 80 percent of his time visiting teachers, coordinators and checking records on disclosures at discussions of board meetings. When asked for the purpose for which he was collecting a "history" for his files, the witness was unspecific however, he did testify that no attempts were made to utilize the pictures for reprisals. Jackie Barrineau, who previously testified, was recalled and testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that there were approximately 25 pickets and that she confronted Jack Bridges and approximately 2 other photographers whose names she did not recall and that she approached Bridges and informed him that she did not like the idea of his taking photos of her. She testified that the Union obtained a Writ of Mandamus to compel the Respondent to disclose the budget and Dr. Moses' contract with the Respondent. The pickets expressed to her their fear of retaliation for engaging in such acts. There was no blockage of ingress or egress of the school's administration building where the picketing occurred. When shown the pictures, she was able to identify most of the subjects. She testified further that the picketing was at all times peaceful. On cross-examination she also stated that she is the Union's public relations official and reiterated her identification of Mr. Bridges as one of the photographers. 6/ Dr. Ruby Jackson Gainer, a counselor dean and an employee for approximately 20 or more years, testified that she engaged In the picketing and that she was also intimidated by a managerial employee taking pictures of her while she was picketing. She testified that despite this fear, she went along with the idea of picketing because she felt "committed to her task." She recalled an incident whereby she was discharged and her tenure removed due to her engagement in a walkout during school year 1968. She testified that the employer tried to discharge her for taking two days' sick leave and that this action was turned over to the professional practices committee. On or about August 28, she testified that she was demoted from administrative dean to counselor dean and that the difference being that as counselor dean, her work station is located in an isolated area removed from the other school facilities. William McArthur, the Respondent's Personnel Director, testified that the picketing occurred in front of the school building which is where his office is located. He is a member of the board's negotiating team and he testified that he was unaware of any employees being intimidated based on their engaging in picketing. He corroborated the earlier testimony that the pickets did not block any ingress or egress to the school's administrative building. He is the custodian of the instructional personnel records and to his knowledge, there was no data placed in the personnel files regarding the picketing. He also testified that the Respondent does not maintain any separate personnel file for pickets. He testified on cross-examination, that he viewed the picture in Mr. Odom's office which were lying on his desk uncovered. He was unable to witness pickets from the school's building as was previously testified to by other witnesses. In the private sector, the NLRB has consistently held that direct surveillance by company supervisory employees or executives is intimidating and coercive. However, the mere presence of a supervisor or agent of a Respondent is insufficient to prove surveillance where such presence is not out of the ordinary. In this case, evidence reveals that the occurrence of the picketing was a matter of common knowledge throughout the county. The picket was so well known that there was extensive media coverage. The evidence reveals further that the photos were passed around at a public School Board meeting and that since that time no reprisals have been practiced upon the subjects appearing in the photographs. There was no evidence that employees' job activities were more closely scrutinized than before the picture taking episode occurred. Jackie Barrineau, a chief spokesman for the Union testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that approximately 25 pickets gathered in front of the school's administration building and that Jack Bridges and two other photographers took pictures of the pickets. She as well as other witnesses testified that they feared reprisals would be taken against them for engaging in the picketing and that they were unable to discern any useful purpose as to why the pictures were being taken by Jack Bridges. The evidence also reveals that the Respondent's agents testified that the purpose for which the photos were made was to maintain "history" for their files. Further testimony on this point, however, reveals that the photos were openly discussed at a public meeting and that no attempts were made by the Respondent and/or its agents to utilize those photos for retaliation or for any other purpose unlawful under Chapter 447, Florida Statutes. The record was barren of any evidence that the Respondent attempted to use the pictures from the pickets to substantiate retaliatory motives. While one witness testified that she was demoted because she participated in a strike several years ago, such testimony standing alone is insufficient to base a finding that the Respondent during the picketing in 1975 utilized or planned to utilize the photos for some unlawful purpose. Furthermore, there is no evidence to show that the Respondent treated picketing employees any differently than it did any other employees who engaged in the strike following the time that the photos were taken. This tends to show the exact opposite of a surveillance situation or the creation of the impression of surveillance as alleged. It is true that there was scant evidence that the Respondent utilized the materials in a file relative to labor relations matters, no ulterior or unlawful motive was attached or shown by the evidence. While one might infer or surmise that the photos would be utilized for discriminatory purposes, there was no proof of that and mere suspicion is no substitute for proof. For these reasons, the undersigned hereby recommends that the surveillance issue be dismissed for lack of proof. THE REFUSAL TO BARGAIN ISSUE Fred Haushalter, the Charging Party's Executive Director for approximately 8 years and a consultant, testified that he requested access to budget information from the comptroller and for a copy of the contract given to the Respondent's labor negotiator, Ed Moses. He testified that the request was made on or about 5 different times during the month of July, 1975. He said when Respondent refused to honor his request for budget papers at the school board meeting, the mandamus suit was filed to compel disclosure whereupon the court ordered the Respondent to turn over those documents and, ill addition, the Union was awarded attorney's fees and cost for bringing the action. He testified that the school board plead that it was unable to pay any additional salaries since revenues were right and further, that there would be no economic improvements contained in the collective bargaining agreement that the parties were negotiating. He testified that all bargaining team members were notified that there would be no economic improvements forthcoming from the Respondent. On cross-examination, he testified that he requested the school board's budget work papers and a tentative budget. He testified that bargaining commenced in late July, 1975. Specifically, he testified that he asked the comptroller, Messr. Olden, for a copy of the tentative budget. Beginning in April, 1975, the Union formally began to formulate proposals and the procedure utilized was that of past practice when the employee organization had utilized in negotiating prior contracts. By letter dated September 8, Robert C. Mott, Deputy Superintendent, stated that he was supplying, (1) a copy of the tentative 75-76 budget; (2) a copy of Dr. Moses' contract; and (3) a copy of the administrative salary schedule. He testified that of the data which was requested by the union, some could not he supplied immediately as some of it needed to be assembled. As to the other request, Mott advised that "since it related so directly to the collective bargaining scene," he would need the "legal advice" from Dr. Moses concerning that data. He concluded by stating that he would submit the requested data when he was able to either assemble it or when Dr. Moses gave him the proper advice. 7/ He testified that Moses was Respondent's chief spokesman as of May 20, and that there were approximately 13 sessions. He phoned Dr. Moses on June 12, 13, 16, 18, 19, 20, 23 and 24 and he (Moses) failed to respond to his phone calls. He had previously been advised by Dr. Moses on June 4 that a negotiating session could be arranged on June 9. He testified that when his phone calls to Dr. Moses were unanswered, he started calling the school board's secretary; Mr. Phillinger and a Mr. Davis, who according to his testimony is Dr. Moses' assistant. Davis took the message and informed him that he would give it to Dr. Moses immediately. When he spoke to Mr. Phillinger, he indicated that he would try to contact Dr. Moses as soon as possible. After approximately 10 or more phone calls, Moses returned his call on June 24, a Tuesday, and informed him that he was told that no one would be in the office until around 1:00 p.m. on that day, i.e., June 24. He testified that Phillinger, Director of Employee Relations, stated that he would contact Dr. Moses since he did not have the authority to arrange dates for collective bargaining negotiation sessions. The following day a Messr. Leper was called and he informed him of the difficulty that he had encountered in trying to contact Dr. Moses. He testified that during a two-week period he made approximately 22 phone calls to both officers of Educational Services Bureau, Inc., a consulting firm in which Dr. Moses is employed and serves as its Executive Vice President. He testified that when he finally made contact with Dr. Moses, they arranged a tentative date of July 1 to commence negotiations and that he requested dates of June 25 or 26 and to that request, Moses indicated July 1 would be the earliest date. He testified that at the July 1 session, Moses brought with him no proposals, but merely read a statement that the union's proposals were hastily prepared and irresponsible. He testified that the negotiating team which consisted of approximately 6 members began preparing the original proposal in October of 1974 and that special preparation lasted through April 1975 when formal proposals were submitted. He testified that Phillingem advised that the employer would only discuss the preamble and the following three articles, mainly (1) recognition; (2) association and teacher rights and (3) negotiation procedures. 8/ He testified that at that session, Respondent would only propose language regarding the recognition article. During that meeting the employer submitted its "guidelines for negotiation" and previously thereto on April 23, Respondent advised that it would have prepared at its next session, a counter proposal. The Union's proposal consisted of some 123 pages containing approximately 33 articles. The next meeting was held on May 19, and the parties agreed to payroll deduction for the remaining school year. He testified that Moses, at that meeting, advised that he wanted the Union's negotiating team to "localize the agreement." He testified that the next three sessions mainly consisted of questions by Moses, who informed the Union's bargaining team that "when we start bargaining, we will get. responses." 9/ On cross-examination, Moses asked the witness a number of questions regarding the Union's necessity of affiliation, the understanding as to why two whereases were included in Hue Union's preamble and other questions regarding language contained in provisions of its (the Union's) proposal. Moses inquired of him what his definition of good faith bargaining was and how the Union derived the one 1000th figure as the cost for dues deduction payments. He testified that Moses indicated to him that most of the Union's proposals were "non-bargainable items." The Respondent counter-proposed with a one page proposal. The Employer's initial counterproposal, which was submitted on July, in essence contained provisions that all offers were package offers which had to be either accepted or rejected as a package; that the contract term be two years and that the salary level be that level that was paid to instructional personnel the last school year. The proposal also contained provisions that all negotiable benefits be maintained at the funded level as contained ill the last contract and for existing benefits only; that final and binding arbitration be added to the present concept of grievance as is now in use in the Escambia County Schools.. The counterproposal ended with a provision which stated that all other bargainable items proposed by the union and identified as bargainable by the board were rejected. 10/ Mrs. Barrineau testified that the board's final proposal which was mailed to the teachers contained provisions whereby lunch hours were discretionary with the principal; a no strike provision; dues deduction and mileage allowance which was less beneficial than that contained in the predecessor agreement. The counterproposal also contained more restrictive provisions regarding maternity leave, personal leave and a two year contract term. There was a provision regarding association and teacher rights, three paid holidays, professional leave and procedures for reviewing personnel files. There was a provision controlling posting, voluntary transfers, class size, teacher's schedules, $60.00 bonus and that in her opinion, the salary proposal was regressive. She testified that the Respondent attempted to withdraw certain items which had been tentatively agreed to by the parties. The Respondent advised that this proposal which was submitted to the union on or about September 26, could only be accepted or rejected "in toto." On July 3, Mrs. Barrineau asked the Respondent for a counter and that its failure to do so would result in the Union's filing an unfair labor practice charge with PERC. Respondent's chief negotiator indicated that management's rights superseded employee rights except as specifically restricted by law. She testified that the only items which he considered negotiable were those items which were existing items or items which were covered by Respondent's policy. She testified that the principle area of discussion at that session dealt with grievance procedures and Dr. Moses informed the Union's negotiating team that their proposals were "so far out of line that they would not be either accepted or entertained." She testified that while the Union was willing to discuss item by item in their proposals and various counterproposals, the Employer indicated that all proposals had to be either totally accepted or rejected. The Union pressed for an informal grievance procedure and a more expeditious manner to resolve such but this was not forthcoming through negotiations. She expressed the opinion the "in toto" position urged by the Respondent was stifling the bargaining process and in her opinion, an attempt was being made to create an impasse. Regarding maternity and sabbatical leave, the discussion surrounding those areas were more regressive and restrictive than the existing policy. 11/ She testified that the Union agreed to accept the Respondent's dormant position regarding insurance in order to enable it to put insurance bids to various carriers. The Employer took a "no give" stance on the preamble and refused to allow employees a "choice of forums to resolve grievances." The next session which was held on July 9 was, according to Mrs. Barrineau, a discussion which largely centered around grievance procedure and sabbatical leave and that in the Unions opinion, the grievance procedure advanced by Respondent was "too detailed." For a detailed discussion on the grievance procedure, see Charging Party's Exhibit 31, which is a counter dealing with grievance procedure. During the next discussion, the witness testified that she expressed concern about the absence of insurance, sabbatical leave and teacher's retirement provisions, and that this was a subject to which the Employer refused to discuss.. The only items that the Employer would discuss were sabbatical leave and insurance. During the July 9 meeting, the Employer agreed to withdraw its insurance proposal. At the next session on July 14, the Union submitted its counterproposal no. 5, which was a regression from its earlier proposal regarding unpaid leave and grievance procedures and all other proposals were identical to its earlier submission and previously adopted position. 12/ Another session was held the following day, i.e., July 15, and the employer adopted the position of making responses only via written proposals and during that session, the Union changed its dues deduction proposal and incorporated a hold harmless clause for the Employer. Thereafter, the Union changed its position on the grievance procedure and advanced an informal one which in her opinion, provided for a more expedited procedure of resolving grievances. During that period from May 20 through mid-July, the parties had only agreed to three items. The Employer adopted a "no give" position regarding sabbatical leave. During a negotiating session on July 17, Dr. Moses appeared at the session approximately one and one-half hours late. At that meeting he submitted a counter which in essence stated that all issues which were "bargainable" had been discussed. She testified that the employer refused to submit counters on promotions, overtime, transfers, calendars, affect of class sizes and all other items. The Employer remained adamant regarding its position that dues deductions were subject to a $.50 deduction per card per employee and that she expressed the opinion that all other deductions were not subject to a like charge and, therefore, the administration charge for dues deduction was punitive in nature. She testified that at the July 17 meeting, the Respondent submitted its counterproposals 9 and 10 and that there were no changes regarding bargainable versus nonbargainable items. The proposals contained regressive language and that employees had to specifically state the reasons for taking personal leave. There were other changes in military and professional leave which deviated from and were more restrictive than existing policies. She testified that the dues deduction pursuant to the $.50 per card charge amounted to approximately $12,450.00 for the Union. The Employer submitted a proposal whereby the instructional personnel would work an 8-hour day which had the effect of increasing the normal work day and the lunch period was reduced to 20 minutes. The proposal contained no compensation allotments for overtime work and the Employer took the position that salary supplements were not negotiable. The Employer refused to change its attitude with regard to physical examinations, mileage allowances and the collective bargaining contracts would be printed at the Union's expense. There was no movement from the initial salary proposals submitted on April 23. During the period from July 1 through July 23, Respondent was unprepared approximately seven times and was late approximately nine times for bargaining sessions. On July 23, the Respondent submitted its counter no. 11 which changed the contract terms from one year to two years and the recognition clause also contained the provision deleting "the board and the association and added the State of Florida." On dues deduction, the employer agreed to recede from its earlier position adopted in its counter no. 10 by an amount totaling $50.00, i.e., the amount previously stated from $12,450.00 to $12,400.00. The proposal also contained a provision that Respondent reserved the right to establish those deductions which it considered to be voluntary deductions and that said right also included the "establishment of a reasonable set deduction, if in the opinion of the board such cost is necessary." All other items were consistent with those contained in its earlier counterproposal. 13/ On July 23 the Union declared impasse which was 60 days prior to the Respondent's budget submission date. At the time of the impasse, the parties had not reached agreement on: the insurance proposal, grievance procedures, sick leave, illness in line of duty, personal leave, sabbatical leave, general leave of absence, military leave, professional leave, visitation rights, dues deduction, preamble, maternity leave, as well as others. 14/ The parties scheduled their first mediation session on August 13, and it was scheduled to begin at 4:30 p.m. At that session, the Respondent's team was late by approximately two hours. The testimony is that the dues deduction costs submitted to the mediator was for a lump sum payable by the Union of $12,400.00. At that session, the Employer took the position that the subject of discharges was a nonnegotiable item. At the next meeting, on or about August 26, the Respondent's chief negotiator was late approximately two hours. On November 10, the Union requested a further session and Moses wired a message that he would not be available until November 15. The witness remained at the negotiating meeting on November 15 for approximately one hour and no negotiating official of Respondent appeared. The Employer remained adamant on positions wherein there was disagreement only as to language but not in principle. The parties agreed to a marathon bargaining session beginning November 28, and the sessions continued through November 30, at which time an agreement was tentatively reached by the parties, subject to ratification by the bargaining unit members. 15/ The unit members voted against ratification of Charging Party's Exhibit 46 which is the agreement entered into by the negotiating team and the Respondent's team on that same date. Included therein, is a salary proposal which amounts to a reduction in the previous school year salary of approximately 3.6 percent, i.e., $8,320.00 per annum versus $8,266.00. The Respondent refused to accede to most proposals submitted by the Union based on its stated claim that most were already provided for by law and thus that there was no need to incorporate such in a collective bargaining agreement. A member of the Respondent's negotiating team allegedly made the statement that "the teachers had nothing, that the school board had everything, that the school board could do what it desired regarding salaries. Additionally, it considered as nonnegotiable such matters as: dismissal, layoffs, evaluation, tenure, discipline for annual contract teachers and the scheduling of planning periods." Floating teachers, assignment of summer school teachers, problems regarding absence without leave and class size were also nonbargainable. Respondant's negotiating team also took the position that the effects of such items were also nonnegotiable. The chief spokesperson, Mrs. Barrineau, testified that her duties consisted primarily of carrying out speaking engagements regarding collective bargaining rights, effectuating collective bargaining policy for the Escambia Education Association, the certified bargaining agent, to settle disagreements within the collective bargaining team, to formulate policy, to issue news releases, to make civic speeches, to attend EEA workshops and to formulate a collective bargaining budget. She testified that the proposals resulted from a joint effort of EEA's collective bargaining team. She became actively engaged in the formulation of proposals on or about March 1. She testified that she made approximately seven phone calls during the period June 12 through June 26, in an effort to schedule a session with Respondent. At the August 14 meeting, the Respondent presented the impasse proposals to the FMCS mediator. As of September 25, the parties reached the figure of approximately $1300.00 for the cost of deducting dues pursuant to checkoff authorizations. Mr. Phillingem was called and testified that the file to which he earlier testified to contain Chapter 447 and the pertinent enabling statutes and the Department of Education Rules and Regulations in addition to proposals submitted by EEA, the certified bargaining agent, "blurb" sheets which are distributed and various other Union news letters. He testified that the school board's legal counsel is, to the best of his knowledge, associated with Muller & Mintz, a Miami law firm. Wallace S. Odom, the comptroller, testified that he is responsible for maintaining all financial data with regard to the school's budget. He is charged with maintaining accurate records and during fiscal year from October 1, thru September 30, there was a county wide reduction in teacher aides by approximately 110. He testified that there was no increase in salaries based on the status of incoming revenues. He testified that there has been an increase in the millage paid for property tax in and around Escambia County and that such increase is up to, according to his testimony, a full 8 mills. Fred Haushalter, EEA's Executive Director, testified that he monitors correspondence which comes through his office. He testified that the allowance for dues deductions during the months of June, July and August was achieved through negotiations and that the parties stipulated as to the amount of the cost for such deductions. He testified that the stipulation was reached on or about May 20, 1975. Thereafter during the remaining months of the school year, the parties entered into a stipulation whereby the cost of administration and dues deduction were set at a cost somewhere in the nature of $325.00 for the remaining three months. While the basic issues here can be simply stated, they are not susceptible of a short and simple answer: Did the Respondent negotiate with the Union in bad faith and with the intent of avoiding reaching agreement or conditioning agreement with the Union's acceptance of terms and conditions which the Respondent knew or should have known are unacceptable to any self respecting Union? The governing principles need not be set forth in exhaustive detail. Section 447, F.S., (the Act) defines collective bargaining and imposes upon the parties the duty to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment or the negotiation of and agreement, or any question arising thereunder... but such obligation does not compel either party to agree to a proposal or require the making of a concession. " The Public Employees Relations Act which was largely patterned after the National Labor Relations Act, 29 USC 151 et seq, sets forth the yard stick which is contained in Section 8(d) of the National Labor Relations Act and provides that the measurement of "good faith" is not rigid but, necessarily is an elastic concept having meaning only in its application to the particular facts of a particular case. See for example N.L.R.B. v. American National Insurance Company, 343 U.S. 395, 410 (1952). The U.S. Court of Appeals for the second circuit stated in N.L.R.B. v. National Shoes, Inc., and National Syracuse Corporation, 208F 2d. 688, 691-692 (1953), the problem is essentially to determine from the record the intention of the state of mind of [the employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record. See also N.L.R.B. v. Reed and Prince Manufacturing Company, 205F. 2d.131, 134-135 (C.A. 1, 1953), cert. denied 346 U.S. 887 (1954). The National Labor Relations Board has repeatedly held that it is without authority to either directly or indirectly compel concessions or otherwise set in judgement upon substantive terms of a collective bargaining agreement. A necessary corollary to this principal is that just as the Act contains no authority to force an agreement when the parties have reached an impasse (N.L.R.B. v. The United Clay Mines Corporation, 219F. 2d 120, 126 (C.A. 6, 1955), so also refusal to bargain cannot he equated with refusal to recede from an announced position advanced and maintained in good faith. Division 1142, Amalgamated Association of Street Electric Railway and Motorcoach Employees of America, AFL-CIO (Continental Bus System v. N.L.R.B., 294F. 2d 264, 266 (C.A.D.C., 1961). Applying these principles to the facts here, it becomes apparent that based on the small movement and the repeated standoffs by Respondent, I am constrained to conclude that the Respondent here has failed to fulfill its obligation to bargain in good faith with the Union. Turning to the pertinent facts in this case, up to and including the point of "impasse", the Respondent refused to recede from its initial stand on inter alia, checkoff, seniority, grievance procedure, all types leave, assignment scheduling, shorter lunch periods, reduction in pay and longer work days. Based on this position, one would readily infer that the Respondent approached the table with a preconceived determination never to reach agreement on these issues and that it maintained this position during negotiations without doing anymore than listen to Union argument on those points. Thus, in effect it engaged in surface bargaining on those as well as other issues without any attempt to explore argument thereon with a sincere desire to reach agreement. The Respondent's chief negotiator approached the table with a cleverly concealed scheme of displaying a real and sincere attitude of negotiating which was carried on with sophistication and finesse and the mere making of concessions on some items was the very means by which he concealed a purposeful strategy to make bargaining futile or fail. Using this approach, the Respondent opened negotiations with an extremely high cost for the administration of dues deduction and then failed to recede from this position until the waining moments of the negotiating sessions and after the parties had gone through the lengthly process of calling in mediators which were costly to both parties. There was no meaningful change on its consideration of position on the mandatory subject of checkoff as provided in Section 447.303, Florida Statutes. Throughout the sessions, the Union brought out and repeated all its main arguments regarding checkoff, salary levels, scheduling assignments, grievance procedures, contract terms, health insurance coverage as well as other items which the record is replete with documentary evidence. The Respondent, according to the testimony, stood fast on various articles which it deemed to be nonbargainable throughout the negotiation and as the sessions progressed, its position hardened. These are mandatory bargaining subjects and the Respondent's failure to enter negotiations with an effort to reach agreement constitutes bad faith bargaining in violation of 447.501(c), Florida Statutes. One example of this unlawful conduct can be examined by consideration of the fact that during the previous school year, the Respondent agreed to deduct dues on a monthly basis and the cost of such deduction amounted to approximately $325.00 for a three month period whereas when it entered the negotiation table it started out with the "outrageous" figure of approximately $13,000.00 for the same service that it had earlier provided for a total cost of $1300.00 if projected over a one year period. The same can be said for the Respondent's adamant refusal throughout the negotiations to accede to minor language changes in the preamble and other matters which in its opinion, were matters already covered by other laws and therefore there was no need to incorporate such in a collective bargaining agreement. While not suggesting that the Act requires concession by either side during bargaining nor the surrender of convictions or alterations of philosophies provided such convictions or philosophies are not made operative in such manner as to foreclose bone fide consideration of bargainable issues, the repeated refusal to consider or counter when proposed with items which amounts to nothing more than language changes, such a position militates a finding that the employer approaches the bargaining table with the intent of reaching an agreement and/or to engage in good faith bargaining. While parties oft times approach the bargaining table and jockey for positions, there comes a time when there must be a sincere desire to reach agreement. Further support in this position can be found in the fact that the Union on numerous occasions made futile attempts to reach the Respondent's Chief negotiator. During one period during the negotiating sessions, the Union's chief spokesman testified that she made more than ten phone calls during a twelve day period and that at no time were her calls returned by the Respondent and/or its agents. This in the opinion of the undersigned evinces a practice on the part of the Respondent to engage in dilatory and evasive tactics designed to make the bargaining process a sham and fruitless process. For example, anti-discrimination clauses are customarily included in contracts whereas there are other specific laws which specifically provide for and cover such proscribed activity. The fact that a proposal is made to include such in an agreement does not detract from or otherwise modify from other existing laws covering the same procedure. Further support for the conclusion reached by the undersigned can he found in the fact that the Respondent's chief negotiator entered the negotiating sessions with the idea that all proposals submitted by the Respondent would be package proposals and that the Union could not accept part of a counter proposal put by the Respondent without completely accepting or rejecting the entire proposal. This is not to say that the parties cannot enter into negotiations and negotiate on an item by item basis but the adoption of an "in toto", or take it or leave it" policy is further indication of bad faith bargaining. This is of much significance here since Respondent refused to agree to insignificant or traditional items contained in collective agreements. See e.g., Big Three Industries, 201 N.L.R.B. No. 105. Another indicia of the negotiating process which is indicative of bad faith bargaining is the fact that after the Union had been certified for approximately 6 months, the Respondent without prior consultation with the Union, unilaterally indicated that dues deductions could only be effected on a lump sum basis which ultimately had the effect of forcing numerous employees to cancel their dues deduction authorizations. This statement is based on the credited testimony of several witnesses including Mrs. Barrineau and Mr. Price. Although the Respondent, during the course of the hearing, testified that the dues deductions were canceled or that attempts were made to get employees to execute new authorization forms, there is nothing in Florida Statutes which places such a burden on the Respondent. A careful reading of Section 447.303, Florida Statutes, indicate that such authorizations are revokable at the employee's will upon 30 days written notice to both the employer and employee organization. Based on the foregoing, I therefore conclude and find that the Respondent's negotiating team entered the table with no intent to fulfill their duty to bargain in good faith and that its actions in forcing employees to execute forms which call for the single deduction of Union dues was a deliberate attempt on its part to force mass withdrawals from the Union in an effort to undermine it.
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact JURISDICTION The Respondent, a Public Employer, has its principal place of business in the City of Winter Haven, Polk County, Florida, where it is engaged in the business of providing municipal services. Respondent is created directly by the Florida Constitution, a legislative body, and is administered by individuals who are responsible to public officials and/or the general electorate. On the foregoing facts I find that Respondent is a Public Employer within the meaning of Section 447.203(2), hereinafter referred to as the Act. THE LABOR ORGANIZATION INVOLVED The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. THE ALLEGED UNFAIR LABOR PRACTICES Introduction On or about May 28, 1975, the Commission issued a written certification certifying the charging party as the exclusive bargaining representative for firemen and fire engineer drivers employed by the City of Winter Haven. On or about January 27, 1975* the parties commenced collective bargaining negotiations. On or about May 28, the parties reached impasse. On or about July 31 and August 14, the parties met with the Special Master, and on September 18, the employer approved the Special Master's report. On September 19, the City Manager, Mr. W. D. Fultz, sent a letter to the Chairman of the Commission, Curtis L. Mack, and to the Association, stating that the Respondent had accepted the Special Master's Report without any changes and that the Respondent was enclosing the contractual provisions to the union to be added to those provisions to which the parties had tentatively agreed. Additionally, the Respondent, upon ratification by the bargaining unit, agreed to execute and adopt the agreements with approval from the City Commission. On or about September 25, the City Manager, prior to formal action by the City Commission, notified Mr. Mack and the Association that the Respondent was revoking its prior approval of the agreement submitted to the Association. The following day, September 25, the Association notified Respondent that the bargaining unit employees had ratified the contractual agreement that was sent by Respondent to the Association for ratification. On October 2, the Association attempted to sign the ratified agreement and the Respondent refused to do so. During the course of the negotiations, the Respondent was represented in collective negotiations by its agent, Paul Pothin and L. D. Woodard who, according to the pleadings, had the authority to enter into and negotiate on behalf of Respondent. The transmittal letter forwarded to PERC's Chairman stated, in pertinent part, that: "Therefore, I have this day furnished enclosed 'Contractual Provisions' to the Union to be added to those provisions to which the parties have tentatively agreed. Subsequent to ratifi- cation by local membership, the City agrees to enter into and execute the agreement in whole. Absent such ratification, it is our intention to implement all economic improvements guaran- teed by the agreement as a sign of good faith to our employees." The agreement transmitted from the City to the Employee Organization contained articles concerning both merit increases and salary increases. According to the evidence, the City's chief negotiator, Paul Pothin, was in agreement with the Special Master's Report until the morning of September 25. He apparently became unhappy with the report after the City became informed that a survey conducted by or on behalf of the Special Master revealed that the Respondent's firemen were making approximately 4.7 percent less than the Cities in the local operating area. With this information, Pothin contacted the City Manager who, in turn, sent a letter to the Employee Organization seeking to revoke his prior approval by letter dated September 25, 1975. The Employee Organization, on the evening of September 25, ratified the previously agreed to articles and notified the City of that action on the following day, September 26. On October 2, Messrs, Motes and Clifford Lewis, agents of the Charging Party, visited the Respondent's City Managers in an effort to sign the agreement to no avail. When the City Manager refused to sign the contract as submitted, the Charging Party offered to submit the question in issue to the grievance procedure under the contract, which the City rejected, and state that they did not feel compelled to sign the agreement. It is the Charging Party and the General Counsel's position that under Florida Law, the City Manager cannot unilaterally revoke a prior commission action. Citing State ex rel. McIver v. Swank, 12 So.2d 605, Ramsey v. City of Kissimmee, 19 So.2d 474, Brown v. City of St. Petersburg, 53 So.141. The Respondent, on the other hand, takes the position that it revoked this offer prior to acceptance by the union and therefore it cannot be bound by an offer that contains an error when the other party is notified of such error prior to acceptance. Accordingly, Respondent takes the position that by failing to execute the document which did not represent its intent, such act cannot be evidence of an unfair labor practice within the meaning of Florida Statutes 447.501. Therefore the Respondent urges that the Complaint be dismissed. ANALYSIS, DISCUSSION AND CONCLUSION Section 447.309, F.S. states in essence that any collective bargaining agreement reached by the negotiators shall be reduced to writing and such an agreement shall be signed by the chief executive officer and bargaining agent. Additionally, Section 447.501(1)(c) states that an employer commits an unfair labor practice by refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit. These are the guiding statutes which control resolution of the issue posed in this case. The facts here show that when the union received the certification, the parties commenced negotiations for a collective bargaining agreement and met on approximately six different negotiating meetings in an attempt to reach a full collective bargaining agreement. The parties reached impasse on a number of items and being unable to resolve the deadlock on the impasse items, the parties called in a Special Master, Dr. James J. Sherman, Professor of Industrial Relations, University of South Florida. (The Special Master's Report was received into evidence and made a part hereof by reference.) Contained in the Special Master's Report was a provision dealing with wages wherein the Special Master arrived at a figure based on a study conducted of all fire departments in the Winter Haven area. The salary contained in his recommendation was that employees covered by the certified appropriate unit shall be paid a rate of no less than $8,089 per year. He further recommended that the City agree to pay the employees covered by the agreement "the average salary increase" granted for cities in the "local operating area" effective October 1, 1975. Pursuant to a special commission meeting held on September 18, 1975, and approved by the City Commission of the City of Winter Haven, Florida, in regular session on October 1, 1975, the City Commission met and Commissioner George L. Harris moved for adoption of the findings, opinions, and awards of the Special Master. This act was seconded by Commissioner George L. Harwick. The Commissioners unilaterally agreed to adopt the economic benefits contained in Special Master's award provided the union did not ratify such by October 1 such that the City could implement them by the same date. Mr. Pothin, the City's Labor Consultant, presented the findings, opinions, and awards and recommended adoption of such by the City. These recommendations were relayed to the union by letter and a copy sent to Curtis L. Mack, PERC's Chairman, and the union members voted to ratify the Special Master's Report as prepared by Mr. Pothin which contained the awards and findings of the Special Master. The ratification vote occurred on September 25. Earlier that same day, Pothin and the City Manager sent a letter to the union revoking the prior letter which indicated the City had formally approved the findings of the Special Master as embodied by the transmittal letter and contract to the union. The union advised the City of such ratifzzz ication on September 26 and on October 2, Mr. Motes, along with Clifford Lewis, visited City Hall in an attempt to obtain the City Manager's signature on the agreement. The City refused and the union attempted to invoke the grievance procedure contained in the contract whereupon the Respondent rejected stating that they did not feel compelled to sign the agreement and further, that the grievance machinery was not operative inasmuch as there was no contract containing such grievance arbitration machinery. It is clear that parties are required to bargain in good faith for employees contained in a certified appropriate unit with the certified bargaining agent and attempt to embody such agreement in a final form and reduce it to writing when such an agreement is entered into. Section 447.501(c) F.S. The evidence here reveals that the City initially agreed to adopt the Special Master's findings and later attempted to renege on this action once it noted that the current wages for the unit employees was approximately 4.7 percent lower than those salaries recommended by the Special Master. However, in doing so, the withdrawal of the acceptance did not meet the authorization required in a commission manager form of government. Thus there was no proof that the City Manager alone had the authority to rescind the prior action entered into by the City Commissioners as far as this record reveals. It is clear that the recommendation that the Special Master's award be adopted took place at an open meeting of the commissioners whereupon they formally agreed to adopt the Special Master's findings. There was no further evidence indicating that the City Commissioners formally rescinded this action by a special meeting or any other formal action. Nor was there any other showing of any form of ratification of the acts of the City Manager wherein he attempted to repudiate the agreement entered into by the full commission at the special commission meeting held on September 18 and formally adopted by a regular meeting held October 1, 1975. Based on the above, it is concluded that the action of the City Manager on September 18 was not authorized by the full city commission and therefore the actions taken by him were incomplete and unauthorized. See for example, Brown v. City of St. Petersburg, 153 So. 141; Ramsey v. City of Kissimmee, 190 So. 474. Accordingly the city's failure to implement the agreement submitted to the union on September 9, 1975, resulted in a refusal to bargain within the meaning of Section 447.501(a)(c). Based on the above I find that the actions of the respondent set forth above amounted to bad faith bargaining by attempting to repudiate its previously agreed to article concerning wages. Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following:
Recommendation I therefore recommend that the Respondent be required to implement the provisions of the agreement to which it previously agreed to concerning wages and all other terms contained therein. DONE and ORDERED this 6th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
The Issue The issue in this case is whether the Respondent's employment by the School Board of Miami-Dade County, Florida, should be terminated.
Findings Of Fact At all times material hereto, the Respondent was employed by the Petitioner as a bus driver and was assigned to Central East Regional Transportation Center (Central East), which is within the school district of Miami-Dade County. The Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) bargaining unit. At all times material, Randy Mazie (Mazie) was the Director of Central East. Juan Perez was the Coordinator of Central East (reporting to Mazie), and Frank Hernandez and Florence Birch were Administrative Assistants (reporting to Perez and Mazie). When a bus driver is absent without advance notice, it often has a substantial impact on the work site. Absenteeism of bus drivers causes delays on that particular route and typically puts stress on both students and school site employees. On a number of occasions, Mazie personally had conversations with the Respondent about her poor attendance record and the consequences of her absenteeism. In addition, employees, including the Respondent, received training about attendance policies and procedures. In March 2000, the Respondent was referred to the Employee Assistance Program. On April 28, 2000, the Petitioner received notification that the Respondent declined to participate in the Employee Assistance Program. The Petitioner accommodated the Respondent by approving leaves of absence for the Respondent during the following time- frames: January 21, 1998, through April 1, 1998; April 2, 1998, through April 1, 1999; November 29, 1999, through January 2, 2000; January 3, 2000, through January 31, 2000; and February 25, 2000, through March 3, 2000. On November 19, 1999, School Board administrators held a conference with the Respondent to address the Respondent’s excessive absenteeism. At the conference the Respondent was advised that she had been absent a total of 52.5 days since April 1999, including 18 days of unauthorized absences. In addition, the Respondent was advised that continued absenteeism would result in a second conference. At the conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the conference. On March 2, 2000, School Board administrators held a second conference with the Respondent to address the Respondent’s continued excessive absenteeism. At the conference, the Respondent was advised that she had been absent without authorization for 6.5 days since the first conference. In addition, the Respondent was advised that she had been absent a total of 74 days during the past 12-month period, including 24.5 days of unauthorized absences. The Respondent was instructed that continued absenteeism would result in a third and final conference, which could result in termination of her employment. At the second conference, the Respondent was asked if there were any mitigating circumstances for her absences. The Respondent did not provide any explanation for her unauthorized absences. Shortly thereafter, the Respondent received a written summary of the second conference. On May 31, 2000, School Board administrators sent a memorandum to the Respondent regarding the Respondent’s continued absenteeism. In the memorandum, the Respondent was directed to report to duty daily, as all of her leave time had been exhausted. The Respondent refused to sign a copy of the memorandum. Notwithstanding the above directive, the Respondent’s excessive absenteeism continued. From November 30, 2000, to December 19, 2000, the Respondent was absent from work. On January 4, 2001, the Respondent presented the School Board Administrators with a medical document signed by the Respondent’s physician purporting to excuse the Respondent from work from November 27, 2000, through January 3, 2001. On January 6, 2001, the School Board Administrators discovered that the Respondent’s physician did not excuse the Respondent from work from November 27, 2000, through January 3, 2001, and that the medical document provided by the Respondent had been falsified. On January 22, 2001, School Board administrators held a third conference with the Respondent to address the Respondent’s continued excessive absenteeism and submission of fraudulent medical documentation. At the conference, the administrators advised the Respondent that she had been absent a total of 38 days during the past 12-month period. The Respondent was also informed that, since March 2000, she had been absent without authorization for 18 days. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. Thereafter, the Respondent received a written summary of the conference; however, the Respondent refused to sign the summary. On February 22, 2001, the Office of Professional Standards held a conference with the Respondent to address the Respondent’s excessive absenteeism and submission of fraudulent medical documentation. At the conference, the Respondent was afforded an opportunity to refute the charges that she had submitted fraudulent medical documentation. Despite this opportunity, the Respondent did not refute the charges or provide an explanation. The Respondent received a written summary of the conference. During the hearing, the Respondent testified that she went to the emergency room (but was not admitted to the hospital) during the time-frame from November 30, 2000, through December 19, 2000. The emergency room personnel told her to follow up with her physician. Notwithstanding these directions, the Respondent admitted that she failed to follow up with her physician. During the time-frame from November 30, 2000, through December 19, 2000, School Board administrators directed the Respondent to submit documents indicating that she was under medical care. Thereafter, the Respondent falsified the medical note. The Respondent also generally testified during the hearing that she was undergoing counseling by a social worker for stress related to her personal life. However, the Respondent never offered as evidence any records from the social worker, and Mazie testified that she never had a conversation with him about meeting with a social worker. Moreover, the Respondent admitted that the School Board Administrators authorized absences related to her daughter’s pregnancy/illness, as well as housing problems she encountered during a storm. In addition, the Respondent conceded that the School Board never denied the Respondent a requested leave of absence. Between April 1, 1999, and November 19, 1999, the Respondent was absent without authorization for 20.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 20 days. Between November 19, 1999, and March 2, 2000, the Respondent was absent without authorization for 8.5 days. Between March 3, 1999, and March 2, 2000, the Respondent was absent without authorization for 28.5 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 51 days. Between January 23, 2000, and January 22, 2001, the Respondent was absent without authorization for 22 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 12 days. Between March 3, 2000, and March 3, 2001, the Respondent was absent without authorization for 21 days. During that same time-frame, the Respondent was absent with authorization (and without pay) for 8 days. Between November 30, 2000, and December 19, 2000, the Respondent was absent without authorization for 14 consecutive days. Based on the Respondent’s leave history records, she was absent without authorization, between March 3, 2000, and March 3, 2001, as follows: March 10, 2000 (½ day); April 10, 2000 (½ day); April 13, 2000 (½ day); May 30, 2000 (½ day); May 31, 2000 (½ day); June 2, 2000 (½ day); July 18, 2000 (½ day); July 21, 2000 (½ day); November 30, 2000 (1 day); December 1, 2000 (1 day); December 4, 2000 (1 day); December 5, 2000 (1 day); December 6, 2000 (1 day); December 7, 2000 (1 day); December 8, 2000 (1 day); December 11, 2000 (1 day); December 12, 2000 (1 day); December 13, 2000 (1 day); December 14, 2000 (1 day); December 15, 2000 (1 day); December 18, 2000 (1 day); December 19, 2000 (1 day); January 10, 2001 (½ day); January 11, 2001 (½ day); February 15, 2001 (1 day); February 22, 2001 (½ day); and February 27, 2001 (½ day). As a result of the Respondent's conduct, School Board administrators recommended dismissal of the Respondent. Thereafter, the Petitioner suspended the Respondent without pay and initiated these dismissal proceedings.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the Respondent's employment and denying all other relief sought by the Respondent. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2002.
The Issue Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Certification Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997. Respondent's Employment with the School District At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School. The ESOL program is designed to meet the special needs of students whose native language is not English. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the Megha P. suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years. Megha was a ninth grader during the 1995-96 school year. Respondent was Megha's biology teacher during the first semester of that school year. On the day of her final examination in Respondent's class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap. While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did. Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.) When Megha entered the classroom, Respondent commented to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations. Suchi H. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable. Lovely R. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key. When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the face, but was unsuccessful as Lovely turned her head away from him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent. Alexis G. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it. Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage. Chrisly A. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave. Effectiveness By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community. Aftermath Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney. During the meeting, Respondent declined the opportunity to make a statement. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows: Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students. Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal. Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings. Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.
Recommendation Based on the foregoing, it is ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority. DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 July, 1996. COPIES FURNISHED: Claire D. Dryfuss, Esquire M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack E. Ruby, Esquire 2596 Seagate Drive, Suite 100 Tallahassee, Florida 32301-5032 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
