City of Bartow v. Public Emp. Relations Commission

• Court: Florida District Court of Appeals
• Writing for the Court: SCHEB; GRIMES, C. J., and BOARDMAN
• Citation: City of Bartow v. Public Emp. Relations Commission, 382 So.2d 311 (Fla. App. 1979)
• Decision Date: 14 September 1979
• Docket Number: No. 444,No. 78-2296,R,444,78-2296
• Parties: CITY OF BARTOW, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Teamsters Localespondents.

Page 311

382 So.2d 311

CITY OF BARTOW, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Teamsters Local No. 444, Respondents.

No. 78-2296.

District Court of Appeal of Florida, Second District.

Sept. 14, 1979.

Thomas M. Gonzalez and Lucius M. Dyal, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.

William E. Powers, Jr., General Counsel, and C. Anthony Cleveland, Asst. Counsel, Tallahassee, for Public Employees Relations Commission.

SCHEB, Judge.

The City of Bartow seeks review of a final order of the Public Employees Relations Commission (PERC) finding the City guilty of unfair labor practices. PERC ruled that the City violated Sections 447.501(1)(a) and (b), Florida Statutes (1977), ¹ by terminating the employment of Marion O. Ott, a Fire Department employee. The City contends that a prior ruling of its Civil Service Board should have controlled PERC's decision, and argues alternatively that there is not substantial competent evidence to support PERC's order. We have jurisdiction. § 447.504, Fla.Stat. (1977). From our review we conclude that, while PERC did have jurisdiction, its implicit finding that a causal connection existed between Ott's dismissal and his union activities is not supported by substantial competent evidence. Therefore, we reverse.

In 1977 Bartow's fire department consisted of a fire chief, his assistant, sixteen fire drivers, and a mechanic. The drivers maintained the Department's trucks, drove them to fires, and operated the pumps and other equipment while volunteers aided in fighting fires. Each of three shifts had a supervisor. Ott had been a fire driver for approximately two years in March 1977 when he and other employees became interested in unionizing the Department. As a result they asked their fellow employees to sign cards authorizing PERC to conduct an election to determine if a majority of the employees wished to be represented by the Teamsters Union. Feelings between those supporting the union and those opposing it ran high, and over the next few months the atmosphere in the Department became tense.

Ott's shift supervisor testified that, on June 1, 1977, he ordered Ott to report to a training fire and Ott refused to go. As a result Fire Chief Tim V. Pitts suspended Ott. On June 4, after he received reports of two other instances in which Ott had antagonized his supervisor on June 1, Pitts fired Ott on the ground of insubordination.

Ott petitioned the City of Bartow Civil Service Board for administrative review of his discharge. The Board conducted a hearing at which Ott testified, and found that Ott's termination was for good cause and upheld it. Ott did not seek judicial review of the Board's action. Teamsters Local No. 444, however, subsequently filed an unfair labor charge against the City. After investigation, PERC filed a formal complaint charging that the City had improperly dismissed Ott in retaliation for his union activities. The City denied this charge and filed affirmative defenses that PERC was without jurisdiction and that the ruling of the Civil Service Board was res judicata. Following a hearing at which the principals testified, PERC's hearing officer concluded that although Ott was insubordinate, his dismissal was also influenced by his union activity and the desire of the City to discourage unionization. The officer thus concluded that the City was guilty of an unfair labor practice. The Commission adopted the hearing officer's recommended order as augmented by its own conclusions, and entered its final order requiring the City to reinstate Ott with backpay.

The City raises several points on appeal, but we need discuss only two. We first address its contention that PERC was without jurisdiction to make a determination in this cause because of the prior adjudication of the Bartow Civil Service Board. The City contends that the Board's action barred the Commission from even considering whether Ott's discharge resulted from an unfair labor practice on the ground that the Board's adjudication was res judicata. We disagree. The issue before the Civil Service Board was whether Ott was insubordinate and not whether the City was guilty of an unfair labor practice in terminating his employment. Therefore, while the principle of estoppel by judgment applied to the Board's determination that Ott was insubordinate, it did not apply to PERC's contention that the City had committed an unfair labor practice. Estoppel by judgment bars only those matters actually litigated and determined in an initial action. Gordon v. Gordon, 59 So.2d 40 (Fla.1952); see also Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla. 3d DCA 1972); Board of County Commissioners v. Rockmatt Corp., 231 So.2d 41 (Fla. 3d DCA 1970). Accordingly, while the Commission was estopped from rehearing the issue of Ott's insubordination, it had jurisdiction to determine whether the City had committed an unfair labor practice. See PERC v. Fraternal Order of Police, Local Lodge No. 38, 327 So.2d 43 (Fla. 2d DCA 1976).

We now turn to the more critical issue of whether there was substantial competent evidence to support PERC's finding that the City was motivated by anti-union sentiment in firing Ott. To be sustained, the finding of PERC, like the findings of other administrative bodies, must be based on substantial competent evidence. § 120.68(10), Fla.Stat. (1977); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976). In determining whether substantial competent evidence exists, we recognize that it is inappropriate for this court to resolve conflicts in the testimony adduced before the PERC hearing officer. Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). We are also aware that proof of unfair labor practices frequently must rest upon circumstantial evidence and that we must examine the proceedings before PERC in the light most favorable to its findings. Pasco County School Board v. Florida PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

The evidence revealed that Bartow's fire department was one of modest size and operated informally from the standpoint of discipline and orders. Direct orders were seldom given. The testimony disclosed that on June 1, 1977, Ott was assigned to a work shift under Supervisor Jerry Morgan. While on duty Morgan instructed the shift drivers to roll some fire hoses. Ott indicated that he would not do so. Soon thereafter, however, he joined the other drivers in completing the task. Later in the day Ott belligerently asked Morgan where he was taking the truck which had been assigned to Ott. Morgan replied that he had been instructed by Chief Pitts to take the truck to a training fire.

Morgan proceeded to the fire. When it was almost out, Chief Pitts sent him back to the station with directions to send two men to watch the smoldering remains. Ott and Bruce Monroe were the only fire drivers at the station. At the PERC hearing, Ott and Monroe testified that when Morgan arrived at the station, Monroe asked if he and Ott were to go to the fire. On the other hand, Morgan testified that he ordered Ott and Monroe to report to the fire. In either event, Ott replied "f no, I'm not going," and turned and walked away. The clear implication of Ott's statement was that, even if Morgan ordered him to report to the fire, he would not obey the order. Morgan then told Ott to roll hoses while he and Monroe returned to the fire scene.

When Chief Pitts learned of Ott's remarks to Morgan regarding the fire, he suspended Ott for three days. It was during this suspension that Pitts was informed by his assistant chief of Ott's recalcitrance with regard to rolling hoses and to Morgan's use of "his" truck. At that point Chief Pitts fired Ott.

At the time of Ott's dismissal Chief Pitts was fully aware of the union activities which had begun a few months before Ott's dismissal. He had also let the fire drivers know that he did not think unionization was a good idea.

The hearing officer's recommended order, adopted by PERC, included the following findings:

7. On June 1, 1977, Ott was ordered to report to a Training fire, and refused to go. Earlier on the same day Ott was slow in obeying an order...