Labor board: Florida Poly in Lakeland must restore positions
Posted Jul 26, 2019 at 3:21 PM
Updated Jul 27, 2019 at 8:30 AM
State labor board says Florida Poly unfairly targeted four employees for union activities.
LAKELAND — A labor board has ruled that Florida Polytechnic University violated state law when it eliminated the jobs of two employees and ended teaching contracts for two professors, all of whom were leaders of a faculty union.
The Florida Public Employees Relations Commission (PERC) determined that Florida Poly should reinstate two employees — a librarian and a mental health counselor — and provide them back pay with interest. In the ruling issued Thursday, PERC also ordered the Lakeland university to rescind its decision not to renew the contract of a mechanical engineering professor whose job was due to end in August.
The decision of the three-member commission upheld the April ruling of a hearing officer, who issued a sharply worded report saying Florida Poly administrators displayed an anti-union bias and gave misleading explanations for the job cuts.
That ruling found that Florida Poly retaliated against four employees for their union activities. The fourth position belonged to a mechanical engineering professor who has since resigned.
The commission determined that the university acted unfairly in terminating mental health counselor Casey Fox and assistant librarian Kate Bernard last summer and failing to renew the contract of mechanical engineering professor Christina Drake.
“I’m thrilled — vindicated,” Bernard said Friday. “It’s wonderful that outside parties have listened to all the evidence from people under oath and come to the conclusion that the administrators were untrustworthy and untruthful. They used all kinds of colorful language in there, and it’s all true. It’s nice to see that we are being validated, because the gaslighting there is just incredible.”
University Faculty of Florida, a state union, filed an unfair labor practice charge against Florida Poly in July 2018. It filed a second such charge a month later over the university’s plans not to renew the contracts of Drake and another professor, Christopher Coughlin.
Those cases were combined, and a two-day hearing was held in Lakeland last January.
After Hearing Officer Janeia Ingram issued her ruling in April, a lawyer for Florida Poly submitted a rebuttal challenging details of Ingram’s report and saying she relied on hearsay and misinterpreted testimony in reaching her decision.
In Thursday’s ruling, the board — comprised of Donna Maggert Poole, James Bax and Curt Kiser — supported Ingram’s conclusions.
Asked for a response to the PERC ruling, Florida Poly spokeswoman Lydia Guzman said by email, “As you know, this is a complex matter and as such, the university is reviewing the order and considering the next steps.”
Florida Poly could challenge the decision in an appeals court.
All four employees were involved in the formation of a union, a process that began in 2015. Staff members formally voted to unionize in October 2016.
Drake, who was among the first group of professors the school hired in 2014, welcomed Thursday’s decision but said she isn’t celebrating.
“I don’t know if it’s relief,” she said of her reaction. “I’m suspicious that the university will not comply ... just because of the way the administration has treated faculty and staff in the past and their disregard for the law — and just basic ethics. I actually would not at all be surprised if they basically ignored the order.”
Drake said Florida Poly President Randy Avent and Provost Terry Parker reacted with open hostility to the staff’s organizing campaign. She said the administration conducted job cuts in 2016 that targeted not only union leaders but also other employees who had raised concerns about safety or financial mismanagement.
“For everyone inside Florida Poly, it was pretty obvious what was going on — and it definitely chilled the workplace and made it very toxic, because no one felt comfortable speaking out, which is dangerous,” Drake said. “You need people to speak up when something is going on.”
After news of the layoffs gained attention, Florida Poly administrators said they had not eliminated Fox’s and Bernard’s positions but were simply not filling them at the time. Ingram’s report cited text messages and other material that contradicted that explanation.
The elimination of Fox’s position drew particular scrutiny because it left Florida Poly without a full-time mental health counselor on campus. The university, which began holding classes in 2014, has about 1,400 students.
A Florida Poly student committed suicide on campus in August 2018, about a month after Fox’s layoff. In the aftermath, Fox and others questioned whether the university was providing sufficient mental health services for students.
Another student was found dead on campus in December 2018. The Polk County Medical Examiner’s Office has not yet determined his cause of death.
Florida Poly administrators said after the first death that the school had contracted with BayCare Health System to provide an on-campus case manager and a telephone assistance program for students.
Bernard said the arrangement is not adequate to meet students’ mental health needs.
“There’s nobody on campus — if somebody’s in crisis, there’s no one to go to,” Bernard said. “It was horrifying. That campus — it’s in the middle of nowhere. It’s 85 percent white males. It’s a time bomb, and things have happened. So it’s a relief that hopefully, if this follows through, that they will have to hire someone who is a qualified mental health professional that can hopefully help them understand what’s at stake.”
Bernard said she found another job soon after she was laid off from Florida Poly. She said she isn’t certain whether she will return to the school, but she expects to receive all compensation due to her, including pay for unused vacation and sick time.
Bernard said Fox had taken a job at another university out of the state following her layoff from Florida Poly. Fox could not be reached Friday, but she was quoted in a news release issued by University Faculty of Florida.
“The upper administrator’s agenda to dismantle our union and grip tight onto sole power and control resulted in hasty decisions that left our students without the support they needed and still need today,” Fox said. “This order is a victory for all of us who care deeply about the university and its potential. Florida Poly students need to have a full-time, on-campus wellness counselor again. They can no longer be the only university students in the nation without easy access to essential services.”
Gary White can be reached at gary.white@theledger.com or 863-802-7518. Follow on Twitter @garywhite13.
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Florida Poly disputes labor hearing officer’s recommendation, questions objectivity
By John Chambliss
@ledgercity
Posted May 13, 2019 at 5:46 PM
Updated May 14, 2019 at 9:11 AM
Lawyer for United Faculty of Florida: “It is extraordinary for a university to be throwing that kind of mud. I’ve never seen anything like it.”
LAKELAND — A hearing officer relied on hearsay and misinterpreted testimony when she concluded Florida Polytechnic University committed unfair labor practices, a Tallahassee lawyer for the school wrote in a rebuttal to a recommended order that favored the school’s union.
“The Hearing Officer ignored the University’s affirmative defenses and reached a conclusion that is contrary to competent substantial evidence and established Commission precedent,” wrote Mark Bonfanti, a Seagrove Beach lawyer. “There is no basis for a determination that the University violated the legal rights of any employee.”
In April, a hearing officer for the Public Employees Relations Commission wrote that Florida Poly committed an unfair labor practice and violated Florida statute by laying off two employees in retaliation for their union activity.
Eric Lindstrom, a lawyer for United Faculty of Florida, said Monday that he thinks most of the exceptions filed by the school “will be a waste of everyone’s time to review it.”
“It’s surprising they filed so many exceptions,” said Lindstrom, of Gainesville. “They’re quibbling about factual issues.”
The school filed its exceptions to the hearing officer’s recommendation Friday. Now, the three-member board of the Public Employees Relations Commission is expected to make a decision within the next 2½ months.
The members of the Commission are Chair Donna Maggert Poole, Commissioner James Bax and Commissioner Curt Kiser. Once that decision has been made, either side will have the opportunity to appeal to the 2nd District Court of Appeal in Lakeland. John Showalter, general counsel for PERC, said the United Faculty of Florida did not file any exceptions to the recommendation.
Hearing Officer Janeia Ingram recommended the school should offer to reinstate Casey Fox, a wellness counselor, and Kate Bernard, a full-time assistant librarian, recognize their classifications within the union, and pay the union its attorney fees and costs incurred in litigating the case. The university would also be required to rescind a layoff notice for a mechanical engineering professor, Christina Drake.
The recommendation by Ingram questioned the credibility of testimony by President Randy Avent, Provost Terry Parker and Kathryn Miller, vice provost for academic support services and director of libraries.
“While Avent, Parker, and Miller echoed the sentiment that the University never intended to eliminate the positions, I do not find their testimony to be credible,” Ingram wrote, referring to Bonfanti’s response to the union after it filed an unfair labor practice in 2018.
Bonfanti explained to the union after the unfair labor practice charge was filed that “the University has not eliminated the positions, but instead is choosing not to fill them at this time.”
Ingram wrote in her order that the school should cease and desist from:
‒ Unilaterally eliminating classifications within the bargaining unit without notifying United Faculty of Florida.
‒ Discouraging membership in any employee organization by not renewing the contracts of employees or otherwise terminating employees in retaliation for their having engaged in protected concerted activity.
But the university denied any wrongdoing. For example, the school said it would have changed the structure of mental health counseling services regardless of Fox’s position in the union.
And Bonfanti described Ingram as biased for previously having “served as outside legal counsel for the UFF in legal proceedings before PERC.”
“The Hearing Officer’s failure to make the appropriate disclosure in this case, considering her past involvement as an attorney representing the UFF, has caused the University to question her impartiality in this case,” university officials wrote in a statement. The University has been prejudiced by not being made aware of this relationship, and as a result, was not permitted to potentially file the appropriate Motion to Disqualify the Hearing Officer prior to the evidentiary hearing and issuance of the Hearing Officer’s recommended order.”
Showalter, PERC’s general counsel, said policy prohibited Ingram from speaking with the press. He acknowledged that Ingram “worked for a law firm” that represented the UFF, but declined further comment about the school’s allegation of an unfair hearing.
Lindstrom said he was shocked to see the allegations against Ingram. He said he requested Ingram’s history as a lawyer from PERC after he read the school’s exceptions.
He learned that from 2006 to 2008, Ingram worked in the Tallahassee law firm of Meyer, Brooks, Demma and Blohm. In a union case involving UFF against Florida A&M University, Ingram, a junior associate, filed a notice of appearance, Lindstrom said, adding that she was not the lead attorney on the case.
The case was settled before a hearing, he said.
Lindstrom said in his nine years of working labor law, he’s never seen a school accuse a hearing officer of being unethical.
“It is extraordinary for a university to be throwing that kind of mud,” Lindstrom said. “I’ve never seen anything like it.”
John Chambliss can be reached at john.chambliss@theledger.com or 863-802-7588.
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PERC officer recommends union win in Florida Poly case
By John Chambliss
@ledgercity
Posted Apr 26, 2019 at 6:00 PM
Updated Apr 27, 2019 at 4:24 PM
Testimony by President Randy Avent and Provost Terry Parker deemed ‘not credible’ in recommended order by hearing officer.
LAKELAND — Florida Polytechnic University committed an unfair labor practice and violated Florida Statute by laying off two employees in retaliation for their union activity, according to a recommended order by a hearing officer for the Public Employees Relations Commission.
The officer recommended that the school should offer to reinstate Casey Fox, a wellness counselor, and Kate Bernard, a full-time assistant librarian, recognize their classifications within the union, and pay the union its attorney fees and costs incurred in litigating the case.
The 42-page order also questions the credibility of testimony by President Randy Avent and Provost Terry Parker.
The officer said the school should cease and desist from:
‒ Unilaterally eliminating classifications within the bargaining unit without notifying United Faculty of Florida.
‒ Discouraging membership in any employee organization by non-renewing the contracts of employees or otherwise terminating employees in retaliation for their having engaged in protected concerted activity.
The university will have 15 days to file exceptions with the order. On Friday, Lydia Guzman, a spokeswoman with the school, declined comment, saying it was a recommended order from a hearing officer pending litigation.
The university claimed that its decision to layoff Bernard and Fox was because they were no longer “aligned with the current needs of the University” and were “no longer justifiable.”
In the order, Hearing Officer Janeia Ingram talks about how Avent and Parker believed a union would be divisive. The university mounted a $60,000 campaign to oppose the union in 2016.
She writes that Parker authorized layoffs of Bernard and Fox. Parker testified he never authorized the elimination of those position, but Ingram wrote he was not credible.
“I discredit this testimony as it is directly contradicted by Parker’s and other’s communications around the time of Bernard and Fox’s layoffs,” Ingram wrote.
Avent echoed Parker, but Ingram wrote that the president’s testimony also wasn’t credible.
The order describes Avent’s reaction to a story in the Tampa Bay Times about a campus suicide.
Florida Poly Assistant Professor Christina Drake was quoted as saying, “We have a campus makeup that is a ticking time bomb (to mental health issues).”
In July 2018, senior Kevin Masculine shot and killed himself on a bench on campus. The suicide came a month after the school’s mental health counselor was laid off. The school had been transitioning to a program with BayCare Behavioral Health to provide counseling.
Avent “lost his temper” during a meeting with Parker and Jim Dewey, a trustee and professor at the school, according to the order.
Drake had sent an email to Marshall Criser, chancellor of the State University System of Florida, on the day of the suicide.
Avent believed Drake had misrepresented the facts, according to the order.
“Avent commented that he had ‘had enough of it’ and would ‘put a stop to it.’ ”
Dewey believed that “it” meant certain individuals, including Drake and possibly others, according to the order.
Ingram wrote that Dewey was more credible than Avent and Parker. “To the extent his testimony contradicted that of Avent and Parker, I have credited Dewey’s testimony,” she wrote.
She added that it was “unsettling” that the university “would decide, in the midst of bargaining, to eliminate two classifications that the Commission had only two years prior determined to be appropriate for inclusion in a bargaining unit represented by UFF.”
The university’s anti-union attitude was clearly evident, she wrote.
“This type of unlawful action has a chilling effect on bargaining unit employees’ exercise of their right to engage in protected concerted activity,” she wrote.
John Chambliss can be reached at john.chambliss@theledger.com or 863-802-7588.
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Florida Statutes 447.503 – Charges of unfair labor practices
It is the intent of the Legislature that the commission act as expeditiously as possible to settle disputes regarding alleged unfair labor practices. To this end, violations of the provisions of s. 447.501 shall be remedied by the commission in accordance with the following procedures and in accordance with chapter 120; however, to the extent that chapter 120 is inconsistent with the provisions of this section, the procedures contained in this section shall govern:
(1) A proceeding to remedy a violation of the provisions of s. 447.501 shall be initiated by the filing of a charge with the commission by an employer, employee, or employee organization, or any combination thereof. Such a charge shall contain a clear and concise statement of facts constituting the alleged unfair labor practice, including the names of all individuals involved in the alleged unfair labor practice, specific reference to the provisions of s. 447.501 alleged to have been violated, and such other relevant information as the commission may by rule require or allow. Service of the charge shall be made upon each named respondent at the time of filing with the commission. The charge must be accompanied by sworn statements and documentary evidence sufficient to establish a prima facie violation of the applicable unfair labor practice provision. Such supporting evidence is not to be attached to the charge and is to be furnished only to the commission.
(2) The commission, or any agent designated by it for such purpose, shall thereupon review the charge to determine its sufficiency.
(a) If upon review it is determined that the charge is insufficient, the commission or its designated agent may issue a summary dismissal of the charge. A charging party whose charge is dismissed by a designated agent may appeal the dismissal to the commission within 20 days after the date of issuance of the dismissal. If the commission finds the charge to be sufficient, it shall reinstate the charge.
Terms Used In Florida Statutes 447.503
Commission: means the Public Employees Relations Commission created by…. See Florida Statutes 447.203
employer: means the state or any county, municipality, or special district or any subdivision or agency thereof which the commission determines has sufficient legal distinctiveness properly to carry out the functions of a public employer. See Florida Statutes 447.203
organization: means any labor organization, union, association, fraternal order, occupational or professional society, or group, however organized or constituted, which represents, or seeks to represent, any public employee or group of public employees concerning any matters relating to their employment relationship with a public employer. See Florida Statutes 447.203
person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 88.6011
(b) If upon review it is determined that the charge is sufficient, the commission shall notify the parties. Each respondent so charged shall thereupon file an answer to the charge with the commission, and serve a copy upon the charging party, no more than 20 days after service of notification of the sufficiency of the charge, unless otherwise allowed by the commission. The commission, in its discretion, may allow a charge or answer to be amended at any time. The commission may also, in its discretion, allow other interested parties to intervene in the proceeding.
(3) Whenever a charging party alleges that a respondent has engaged in unfair labor practices and that the charging party will suffer substantial and irreparable injury if not granted temporary relief, the commission may petition the circuit court for appropriate injunctive relief pending the final adjudication by the commission with respect to such matter. Upon the filing of any such petition, the court shall cause notice thereof to be served upon the parties and, thereupon, shall have jurisdiction to grant such temporary relief or restraining order as it deems just and proper.
(4) The commission may issue prehearing orders requiring the parties to provide written statements of relevant issues of fact and law and such other information as the commission may require to expedite the resolution of the case. Such orders may further direct the parties to identify witnesses, exchange intended exhibits and documentary evidence, and appear at a conference before the commission or a member thereof, or a designated hearing officer, for the purpose of handling such matters as will aid the commission in expeditiously resolving the case before it.
(5) Whenever the proceeding involves a disputed issue of material fact and an evidentiary hearing is to be conducted:
(a) The commission shall issue and serve upon all parties a notice of hearing before an assigned hearing officer at a time and place specified therein. Such notice shall be issued at least 14 days prior to the scheduled hearing.
(b) The evidentiary hearing shall be conducted by a hearing officer designated by the commission. Said hearing officer may be the commission itself, a member of the commission, or an agent designated by the commission for such purpose, provided that such agent shall be an employee of the commission and a member of The Florida Bar.
(c) Not later than 45 days after the close of the evidentiary hearing, unless extended by the commission with the consent of all parties, the hearing officer shall submit to the commission and to all parties a recommended order which shall include findings of fact and recommended rulings on procedural matters. The recommended order may also include recommended conclusions of law if requested by the commission.
(d) If the hearing was held before the commission or a member of the commission, the commission may elect to issue a final order which is in compliance with ss. 120.569 and 120.57.
(6)(a) If, upon consideration of the record in the case, the commission finds that an unfair labor practice has been committed, it shall issue and cause to be served an order requiring the appropriate party or parties to cease and desist from the unfair labor practice and take such positive action, including reinstatement of employees with or without back pay, as will best implement the general policies expressed in this part. However, no order of the commission shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment of any back pay, if the individual was suspended or discharged for cause. The order may further require the party or parties to make periodic reports showing the extent to which it has complied with the order. If, upon consideration of the record in the case, the commission finds that an unfair labor practice has not been or is not being committed, it shall issue an order dismissing the case.
(b) If the commission determines that the alleged unfair labor practice occurred more than 6 months prior to the filing of the charge, the commission shall issue an order dismissing the case, unless the person filing the charge was prevented from doing so by reason of service in the Armed Forces, in which case the 6-month period shall run from the date of the person’s discharge.
(c) The commission may award to the prevailing party all or part of the costs of litigation, reasonable attorney’s fees, and expert witness fees whenever the commission determines that such an award is appropriate.
(d) Final orders of the commission issued pursuant to this section shall be enforced pursuant to the provisions of s. 447.5035 and shall be reviewed pursuant to the provisions of s. 447.504.
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