Pensacola Junior College v. Florida Public Employees Relations Commission, AFL-CI
| Decision Date | 28 May 1981 |
| Docket Number | A,No. WW-223,AFL-CI,WW-223 |
| Citation | 400 So.2d 59 |
| Parties | 112 L.R.R.M. (BNA) 3322 PENSACOLA JUNIOR COLLEGE, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and United Faculty of Florida, Local 1847, AFT,ppellees. |
| Court | Florida District Court of Appeals |
Robert L. Norton, Barry J. Warsch and Lewis E. Shelley, of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for appellant.
Frederick G. Bohannon and Dennis Golladay, for appellees.
The College seeks review of an order of PERC finding that its registrar was not a managerial employee within the meaning of Section 447.203(4), 1 Florida Statutes (1979), and that certain of its secretaries were not confidential employees within the meaning of Section 447.203(5), 2 Florida Statutes (1979). The College argues that PERC's order ignores the record evidence supporting a confidential designation for the secretaries and a managerial designation for the Registrar. We agree and reverse.
In its managerial/confidential petition filed in 1979, the College sought to designate the following secretaries as confidential employees:
Executive Secretary to the President
Secretary IV to Vice President for Academic Affairs/Executive Vice President
Secretary II to Vice President for Academic Affairs/Executive Vice President
Secretary III to Provost
At the same time, the College sought to have the Registrar designated as managerial.
At the hearing on the petition, the College and the Union stipulated that: (1) All eight secretaries have access to confidential memoranda dealing with recommended disciplinary actions which have yet to be approved; (2) all eight secretaries are employed by a manager within the meaning of the Public Employees Relations Act (PERA), are privy to confidential information relating to the managerial functions of that individual, and the memoranda, documents and personal letters that they are privy to are documents not accessible to the public under Florida law; (3) the eight secretaries have access to the materials used in the Monday meetings of the President's staff at which policy, discipline, and changes in the organizational structure of the college are decided; (4) the Secretary to the comptroller would be privy to the facts and figures used by the management team in the event of collective bargainings; (5) the Secretary to the Dean of Personal Affairs, the Secretaries to the Vice Presidents as well as the Executive Secretary to the President, would be intimately involved in the preparation of contract proposals in the event of collective bargaining and would have access to the memoranda accumulated in support of positions taken by the management bargaining team; and (6) the Executive Secretary to the President, the Secretary to the Dean of Personal Affairs, and the Secretary to the Assistant to the President are privy to confidential documents relating to litigation which the college is involved in under the various federal acts and the legal documents and work product of the law firm representing the college in its labor matters.
With regard to the Registrar, it was stipulated that: (1) He is paid a salary at the dean level and employs directly, or through supervisors working under him, approximately twenty-five people; (2) he has the authority to recommend termination of anyone under his supervision and his recommendations have always been accepted; (3) he requests merit increases for his subordinates which have been accepted over 95% of the time; and (4) he would be directly involved in any collective bargaining process especially with regard to proposals relating to classroom size or utilization and would be called upon to inform negotiators concerning the impact certain proposals would have on students. No other evidence was introduced with regard to these positions.
The hearing officer recommended that the President, Dean of Personal Affairs, Vice President for Academic Affairs, Executive Vice President, Vice President for Student Affairs, Comptroller, Provost, the Assistant to the President, and the Registrar be designated as managerial. PERC accepted his recommendation except as to the Registrar, and designated each of the positions (excepting the Registrar) as managerial.
With regard to the Executive Secretary to the President, Secretary III to Dean of Personal Affairs, Secretary IV to Vice President for Academic Affairs/Executive Vice President, Secretary IV to Vice President for Student Affairs, Secretary II to Vice President for Academic Affairs/Executive Vice President, the hearing officer recommended that they be designated as confidential employees because they would be required to prepare memoranda concerning contract proposals for the above college employees which he recommended be designated as managerial.
The hearing officer also recommended that the Secretary to the Assistant to the President be designated as confidential since she prepares legal documents and other work products for the College's labor law firm and is exposed to documents confidential as a matter of law in assisting a managerial employee in performance of one of the managerial criteria set forth in Section 447.203(4), Florida Statutes.
Although the Secretary to the Comptroller would, if collective bargaining ensued, provide the management team with facts and figures in written form to support management's position during negotiations, the hearing officer found that she did not have access to information which is confidential as a matter of law because this information merely assisted the employer in preparation for collective bargaining negotiations and was not equivalent to access to information regarding the employer's negotiating position. Collier County Association of Educational Office and Class Aide Personnel and School Board of Collier County; In Re Managerial/Confidential Application of School Board of Collier County, 4 FPER P 4185 (1978). Though the Secretary to the Comptroller prepared memoranda concerning recommended disciplinary action of other employees, he noted that the School Board had not cited any law exempting this information from the Public Records Act and therefore he felt this did not result in a finding that she aided or assisted a managerial employee in a confidential capacity. Sarasota County Teachers Association v. School Board of Sarasota County, Florida, In Re Managerial/Confidential Petition of the School Board of Sarasota County, Florida, 5 FPER P 10149 (1979). Nevertheless, he recommended that the Secretary be designated as confidential because she was the personal secretary to a managerial employee and consequently a per se confidential employee under this court's decision in School Board of Palm Beach County v. Florida Public Emp. Relations Commission, 374 So.2d 527 (Fla. 1st DCA 1978), cert. den. 380 So.2d 427 (Fla.1980).
He felt that the Secretary to the Provost should likewise be designated as a confidential employee since she is the personal secretary to a managerial employee. However, he stated that she would not otherwise meet the test established in Palm Beach County for the determination of a confidential employee since she only prepared documents relative to policy formulation and did not aid or assist a managerial employee in confidential matters.
Finally, the hearing officer recommended that the Registrar be designated managerial because he has the authority to hire, discipline, evaluate and effectively terminate his subordinates. He stated that the Registrar's exercise of these functions on behalf of the College constituted a significant role in personnel administration under Section 447.203(4)(a)4.
PERC's order rejected the hearing officer's recommendation to designate the Registrar as managerial and rejected the hearing officer's recommendation to designate the eight secretaries as confidential. PERC explained the basis of its decision thusly:
The Commission rejects the Hearing Officer's recommendation to designate as managerial the Registrar because the recommendation is not supported by record evidence. The Hearing Officer's recommendation was based in part upon his finding that the Registrar has authority to hire his subordinates. The record is devoid of evidence in support of this finding. Furthermore, even if there were record evidence to support all of the findings of fact regarding the Registrar, such findings would fall short of the prerequisites for designation as managerial pursuant to Section 447.203(4)(a)4., Florida Statutes (1979). See Teamsters Local No. 991 v. Leon County Board of County Commissioners, 5 FPER P 10130 (1979); Florida State Lodge, Fraternal Order of Police v. City of Tallahassee, 4 FPER P 4344 (1978).
The Commission further declines to designate the Registrar a confidential employee since the record is devoid of evidence that he meets the criteria set forth in Section 447.203(5), Florida Statutes (1979).
The Commission rejects the recommendation to designate as confidential the following employees:
Executive Secretary to the President
Secretary IV to Vice President for Academic Affairs/Executive Vice President
The Hearing Officer based his recommendation regarding the above employees on his finding that those secretaries "would be required to prepare memoranda concerning contract proposals...." The Commission has held that a confidential designation cannot be based upon prospective duties but "must be based upon current job duties actually required and performed." In re Managerial/Confidential Petition of the Collier County Board of County Commissioners, PERC Order No....
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