This dispute arose during a SPALC campaign to replace AFSCME⁽³⁾ as the union representative for the support personnel of the school district. A school district employee, Dennis Barnhouse, was denied permission by his supervisor, John Soucie, to distribute SPALC literature inside the school district's maintenance and operations building. Soucie also removed SPALC literature which had been posted on the employee personal-use bulletin board in that building. Soucie told Barnhouse that his activities were prohibited by school district policy. The written policy upon which Soucie relied, School District Policy 2.19, reads, in part:

Advertising; promoting interest of private agency.-Neither the pupils, the staff, the facilities nor the grounds of any school may be used in any manner for advertising or otherwise promoting the interest of any commercial, political or non-school agency, individual or organization.

SPALC filed a claim under section 447.501,⁽⁴⁾ alleging that the school board had, because of the above described conduct, committed unfair labor practices by unlawfully restricting the right of school district employees to solicit new members and distribute labor organization literature.⁽⁵⁾ The hearing officer to whom the matter was referred held an evidentiary hearing and issued a recommended order which found the school board guilty of unfair labor practices in two respects. The hearing officer recommended that a cease-and-desist order issue directing the board to permit its employees to solicit and distribute literature, and recommended awarding SPALC attorney's fees and costs.

PERC accepted (with two minor exceptions not material to this appeal) the findings of fact and conclusions of law in the recommended order, and concluded that the School District of Lee County "violated section 447.501(1)(a) by maintaining and enforcing a policy which prevented its employees from soliciting union membership and support and from distributing organizational literature to fellow employees during nonwork time and in nonwork areas." PERC's order further concluded that the school district "violated Section 447.501(1)(a) by removing SPALC material from the general purpose employee bulletin board [located in the operations building] where it had been placed by a SPALC supporter" and that the school district "knew or should have known that its actions violated section 447.501(1)(a), and therefore the SPALC is entitled to appropriate attorney's fees and costs pursuant to Section 447.503(6)(c), in an amount to be determined." PERC's order directed, in paragraph (1), that the school district cease and desist from:

(a) Violating Section 447.501(1)(a) by preventing employees from exercising their right to engage in supporting an employee organization of their own choosing through maintenance and enforcement of a policy whereby employees are prohibited from soliciting union membership and support or from distributing literature for this purpose during non-work times and in nonwork areas.

(b) Violating Section 447.501(1)(a) by removing or causing the removal of any organizational material placed upon the School District's general purpose bulletin board by employee supporters of SPALC.

(c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights guaranteed them by Chapter 447, Part II, Florida Statutes (1983).

PERC ordered the school district, in paragraph (2), to take, inter alia, the following affirmative action:

(a) Rescind or revise School District Policy 2.19 so as to permit employee solicitation during nonwork time of all employees involved and to permit distribution of organizational materials by employees during nonwork time in nonwork areas.

(b) Pay to the SPALC its reasonable attorney's fees and costs...

(c) Post copies of the attached Notice to Employees stating that the School District shall cease and desist from the actions set forth in paragraph 1 above...

The school board states the three points on appeal as follows: (1) PERC lacked jurisdiction because section 447.509⁽⁶⁾ gives the circuit court exclusive jurisdiction of the charges in this case; (2) PERC erred in holding the school board in violation of section 447.5()9(1)(b) by prohibiting distribution of literature in work areas; and (3) PERC erred in ordering the school board to give SPALC access to the school board's general bulletin board. In its reply brief, the school board also argues that it was wrong for PERC to order the school board to rescind or revise the written school board policy 2.19 because that policy was not intended to restrict the employee's activities in this case and was not being enforced against employee organizations to prohibit such activity.

Before we address these issues, we point out that the general language of the order, because it is devoid of any reference to the operative facts, has made it difficult to identify, apart from the jurisdictional issue, the critical areas of dispute between these parties. The school board has not undertaken to prohibit all solicitation and distribution by its employees. While the board concedes that it erred in some respects, it contends that not all of its actions were invalid. To some extent, the restrictions placed by the board on SPALC's activities went beyond that permitted by section 447.-509(1). In other respects, however, the restrictions were not overbroad. This appeal, therefore, does not simply involve a review of PERC's disapproval of the board's blanket application of an overbroad written policy to prohibit any and all solicitation and distribution on the board's premises.

THE JURISDICTIONAL ISSUE

[1] The school board's challenge to PERC's jurisdiction to hear this case is based on the contention that SPALC's unfair labor practice charge, although couched as an unfair labor practice in violation of section 447.501(1)(a), is actually an attempt to prohibit the board's imposition of restrictions on solicitation and distribution authorized by section 447.509(1). Jurisdiction to enforce statutory rights under the latter section, the board argues, lies exclusively with the circuit courts of this state by virtue of section 447.509(3) giving the circuit courts of Florida jurisdiction to enforce subsection 509 by injunction and contempt proceedings. The board also cites PERC's decisions in Miami Dade Community College, 7 FPER 12040 (1980), and Orange County Classified Employees Association, AFSCME v. Orange Education Support Personnel Association, FTP-NEA, 11 FPER 16133 (1985), for the proposition that the exclusivity of circuit court jurisdiction recognized in those cases deprives PERC of jurisdiction in this case.

For the reasons now discussed, we agree with SPALC that PERC had jurisdiction to hear the unfair labor practice charges under the circumstances alleged and proven in this case, and that PERC's exercise of jurisdiction does not conflict with either of the cited decisions. The charges alleged that the board had committed an unfair labor practice by depriving SPALC employee members of rights protected by section 447.501(1)(a). That section, defining "unfair labor practices," prohibits public employers from "interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part" (meaning part II, which includes sections 447.503 and 447.509).

Section 447.301 provides in part:

(1) Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.

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(3) Public employees shall have the right to engage in concerted activities not prohibited by law, for the purpose of collective bargaining or other mutual aid or protection. Public employees shall also have the right to refrain from engaging in such activities.

An employer's interference with free exercise of the right to organize therein recognized is unquestionably an unfair labor practice in violation of section 447.501(1)(a). The right of solicitation and distribution, although limited by section 447.509, is nonetheless a right subject to protection under 501(1)(a) and 503, even though the right to solicit members and distribute union informational materials may be said to stem from "the reverse implications of Section 447.509, prohibiting employee solicitation at certain times and distribution at certain times and places." Okaloosa-Walton Junior College Board of Trustees v. PERC, 372 So.2d 1378,1381 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1200 (Fla. 1980). As further stated in that case:

No restriction may lawfully be placed on the right of one employee to discuss organizational interests with another on site, on the nonworking time of both, unless by reason of some extraordinary circumstances the restriction is necessary for order and discipline in pursuit of the employer's institutional purposes: here, the educational purposes of the College. The right of employees "to self-organize and bargain collectively . . . necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite." 372 So.2d at 1381 (citations omitted).

Accord School Board of Dade County v. Dade Teachers Association, 421 So.2d 645 (Fla. 3d DCA 1982). Nothing in the language of section 447.509 suggests that the circuit court possesses exclusive jurisdiction to redress the deprivation of an employee's right of solicitation and distribution protected by sections 447.501 and -.503, even though the scope of that right is circumscribed by section 447.509. Section 447.509(3) gives the circuit court jurisdiction to enforce the restrictions in section 447.509 by injunction or contempt proceedings, but it does not, under any reasonable construction, give the circuit court jurisdiction over an unfair labor practice charge brought against the employer by an employee or his representative organization for violation of employee rights protected by 501.

Neither of the two PERC decisions cited by the board, Miami Dade Community College and Orange County Classified Employees Association, requires us to rule otherwise in view of the distinguishable charges and facts in this case. Neither of the cited cases involved a charge by an employee organization to enforce the right of the employer's employees to engage in organizational activity by solicitation and distribution; rather, both cases were proceedings to stop unlawful practices by others which violated section 447.509. It does not appear in those cases that the persons seeking to solicit or distribute materials were, in fact, employees of the employer purporting to exercise their right to organize other employees. In Miami Dade, 7 FPER 12040 (1980), the commission held that an employer could not, by filing an unfair labor practice charge with the commission, enforce section 447.509 against an employee organization to prohibit activities violating that section by unnamed individuals seeking to organize employees of the college. Thus, it does not appear that the case actually involved an unfair labor practice as defined in section 477.501. In Orange County, 11 FPER 16133 (1985), the commission held that one employee organization could not enforce section 447.-509 against a rival employee organization by filing an unfair labor practice charge with the commission to prohibit activities proscribed by that section because the exclusive remedy for enforcement of section 447.509 violations lies in the circuit court. We note the absence of a dispute between the employer and its employee over deprivation of the employee's right to organize.

Without necessarily approving the commission's decision in either case, we observe that the decisive distinction between both cases and the instant case is that the proceeding in Miami Dade and Orange County sought to enforce prohibitions against activity prohibited by section 447.-509(1), while in the instant case SPALC, apparently in its representative capacity pursuant to section 447.301(2), filed the unfair labor charge to enforce the legal right of its members who are school board employees to engage in lawful solicitation and distribution. There is no merit to the school board's contention that these two decisions hold that exclusive jurisdiction over all cases involving solicitation and distribution, regardless of the purpose of the action, lies in circuit court. To so rule would not only misconstrue the cited PERC decisions, but also directly conflict with the rationale of the decisions in Okaloosa-Walton Junior College, 372 So.2d 1378, and School Board of Dade County, 421 So.2d 645. We hold, therefore, that when an employer is wrongfully prohibiting lawful solicitation or distribution by its employees in the exercise of their rights to collective organization, the employee organization may enforce its member employees' rights by filing an unfair labor practice charge with PERC pursuant to section 447.501.

DISTRIBUTION IN WORK AREAS

The school board argues next that PERC erred in finding that the board's prohibition of the distribution of literature in working areas during nonworking hours violated section 447.501(1)(a), and urges us to hold that the restrictions imposed on such distribution were permissible under section 447.-509(1)(b).⁽⁷⁾ The board contends that the language of that section should be read in the conjunctive, i.e., in order to be lawful, the distribution must take place in a nonworking area and during nonwork time. It argues that PERC's construction of the statute is overbroad because it has implicitly ruled that, for purposes of distribution of literature, working areas become nonworking areas during nonworking hours. PERC, responding to this contention, argues that neither the hearing officer nor the commission found it necessary to reach this construction of the statute, and urges that we need not do so either since the board admits that at least some of the alleged acts of distribution prohibited by the board occurred in certain nonworking areas and, thus, were not permissible restrictions under section 447.509.

The core of the dispute appears to be that SPALC contends the order must be affirmed if the school board committed any act in violation of 501--that is, any act not protected by 509--irrespective of whether other restrictions imposed by the board may have been proper under 509. On the other hand, the board, while conceding that some of its restrictions were not permissible under 509, contends that PERC's order must be reversed because the language of the order is so general and overbroad that it purports to prohibit all restrictions on solicitation and distribution by SPALC member employees, including activities that may properly be restricted under 509.

The commission, finding a violation of section 447.501 in respect to the distribution of certain literature, ordered the school board to:

cease and desist from . . . violating section 447.501(1)(a) by preventing employees from exercising their right to engage in supporting an employee organization of their own choosing through maintenance and enforcement of a policy whereby employees are prohibited from soliciting union membership and support or from distributing literature for this purpose during nonwork times in nonwork areas. (Emphasis added.)

We find this directive to be little more than a generic order to stop breaking the law. It fails to address any specific conduct at any particular time and place on the school board's premises. The order is, therefore, too vague and over-broad with respect to the factual and legal issues presented on this record to be sustained without modification. As the court held in Okaloosa-Walton Junior College:

PERC's remedial order leaves intact the same natural uncertainty that the administration and employees confronted in their early negotiation of guidelines for distribution. In such a state there can be no finding that, in some theoretical way, the administration violated PERA. 372 So.2d at 1385.

[2] The employee's right to solicit and distribute literature is not absolute; it must be balanced against the competing interests of the employer in the efficient operation of the workplace. Permissible restrictions on the employee's right are codified in section 447.509. Section 447.509(1)(a) prohibits solicitation of public employees "during working hours of any employee who is involved in the solicitation." Subsection 509(1)(b) prohibits distribution of literature "during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools ... and any similar public installations." The distinction between oral solicitation and solicitation by distributing written material is made clear in Okaloosa-Walton Junior College, 372 So.2d at 1382:

The order before us recognizes the distinction, found both in Section 447.509(1} and in NLRA decisions, between solicitation and distribution. Oral discussion and solicitation between employees on the jobsite is to be permitted except "during working hours of any employee who is involved in the solicitation." Section 447.5()9(1)(a). The distribution of organizational literature, however, is subject both to the working hours restriction applicable to solicitation, because distribution is a form of solicitation, and to the further restriction that it not take place "where the actual work of public employees is performed, such as offices ... nor in other areas "specifically devoted to the performance of the employee's official duties." [Citations omitted.]

*********

In Stoddord-Quirk, applying the Babcock & Wilcox doctrine that competing interests in employer discipline and employee organization "must be [maintained] with as little destruction of one as is consistent with the maintenance of the other," the NLRB held that oral solicitation by employees cannot be confined to particular places because in fact it "impinges upon the employer's interests only to the extent that it occurs on working time...." 138 N.L.R.B. at 619. By contrast, the distribution of literature may reasonably be further restricted because it impinges employee interests by the threat of littering . . . and, more importantly, because distribution can be effective, and therefore less compelling as against competing employer management interests, as well in limited locations as everywhere on the employer's premises:

The distinguishing characteristic of literature . . . is that its message is of a permanent nature and that it is designed to be retained by the recipient for reading or re-reading at his convenience. Hence, the purpose is satisfied so long as it is received.

The soliciting employee, therefore, is prohibited under section 447.509, as construed in Okaloosa-Walton Junior College, from distributing literature at all times during his working hours and in all areas where actual work is performed. Left unanswered was the question whether, for purposes of distribution, a work area during working hours may be treated as a nonwork area after working hours.

[3] We hold that section 447.509 is intended to prohibit distribution in working areas at all times, and distribution in nonworking areas during the working hours of the employees. Solicitation may take place in any area, but is not allowed during the working hours of the employee involved in the solicitation. Okaloosa-Walton Junior College, 372 So.2d 1378. The commission's order, however, explicitly did not reach this issue. The order found that supervisor Soucie had enforced the policy to prohibit Barnhouse from distributing literature at all times in all places within the building. This policy was clearly more restrictive than the statute.

Accordingly, we set forth the following guidelines to clarify, on the facts of this case, what is permissible and impermissible under the cited statutes. The areas devoted to various work sections and the area where employees check out equipment and parts are clearly work areas. Solicitation may take place in these areas during non-working hours, but distribution of literature is not allowed in these work areas at any time. The hallway and the area around the time clocks may or may not be considered work areas; this determination is for the school board to make. If these areas are determined to be work areas, distribution in these areas is not allowed, and solicitation is allowed only during non-working times. The employee break room and the bathrooms are not working areas, and solicitation and distribution in these areas is allowed in nonworking time, e.g., during lunch and before and after work.

BULLETIN BOARD USE

[4] The school board also argues that the commission erred in concluding that section 447.501(1)(a) prohibits the board from removing SPALC material from one of the bulletin boards in the maintenance building, and in ordering that SPALC be given access to this bulletin board. SPALC argues that this issue is controlled by School Board of Dade County v. Teachers Association, 421 So.2d 645 (Fla. 3d DCA 1982), where the court held that union materials could not be removed from a general-purpose bulletin board.

The commission found, in this case, that the board limited use of the bulletin board to employees' personal messages. Any advertising or other material not personal to an employee was removed. There was no showing that AFSCME was allowed access to this bulletin board; instead, the record shows that AFSCME was provided a separate bulletin board of its own. We find that the school hoard's limitation of the general bulletin board to the posting of employees' personal messages is reasonable and that the commission exceeded its statutory power in directing the board to give SPALC access to this particular bulletin board. It is appropriate, however, for the commission to direct that SPALC, like AFSCME, be allowed to use a separate bulletin board of their own, the board authorized for AFSCME's use, or some other bulletin board designated by the school board. The decision in School Board of Dade County is distinguishable because the bulletin board in that case was truly a general-purpose board, with no limitation on use, unlike the one in this case.

THE SCHOOL BOARD POLICY

The commission also ordered that the school board rescind or revise School District Policy 2.19 to permit employee solicitation and distribution in nonwork areas during nonworking times. The board argues that, by its express terms, School District Policy 2.19 does not apply to employee solicitation and distribution. While the record is clear that this policy was being applied by supervisor Soucie to prohibit some forms of lawful employee solicitation and distribution, we agree that the written policy does not, by its terms, apply to employee solicitation and distribution and, thus, may remain unchanged. The commission's order should be modified to direct that the school board cease and desist from applying this specific policy to union activities such as those involved in this case.

ATTORNEY'S FEES

The record supports the finding that the board's supervisory personnel knew or should have known that at least some of the actions taken against employee Barnhouse violated section 447.501(1)(a), and that SPALC is entitled to an award of attorney's fees and costs pursuant to section 447.503(6)(c). We find no error in this ruling. The board asks (without citation of authority, however) that, if the appealed order is reversed in part, its liability for attorney's fees be apportioned. While we do not direct such apportionment, we do suggest that on remand the commission review the extent to which the board's actions were permissible, as well as impermissible, and take such determinations into consideration in setting the amount of fee. Since the board has prevailed in substantial part on this appeal, SPALC's motion for appellate attorney's fees will be denied.

CONCLUSION

Although we find no merit to the board's objection to PERC's jurisdiction of the section 447.501 charges made in this case, and affirm, in part, the finding that the school board violated section 447.501 in prohibiting certain of the labor-organizing activities by its employees, we conclude that some of the board's restrictions were proper under section 447.509. Therefore, the commission's order is reversed and the cause remanded for further consideration and entry of a modified order by PERC in accordance with this opinion. The modified order shall more specifically identify, in terms of the facts of this case, the precise activities that are permissible and impermissible under the controlling statutes. PERC may refer the matter to the hearing officer for further evidentiary proceedings and findings of fact, should that be deemed necessary.

REVERSED and REMANDED.

BOOTH, J., concurs.

JOANOS, J., concurs in part and dissents in part.

JOANOS, Judge, concurring and dissenting in part.

Appellant raised three points on appeal.

The first point was a challenge to PERC's jurisdiction of the subject matter. On this point, I concur with the majority's determination that PERC had jurisdiction.

In the second point, appellant argued that PERC erred by holding that appellant violated section 447.509, Florida Statutes (1983), by prohibiting literature distribution in work areas. I agree with appellee, Support Personnel Association of Lee County, in their view that Appellant's point misconstrues the order. The order did not find as urged by appellant, but found that the School Board violated Section 447.501(1)(a), Florida Statutes (1983), by prohibiting not only literature distribution in work areas but in nonwork areas during non working hours as well. In its order the commission reinforced the hearing officer's finding that Dennis Barnhouse was prevented from distributing SPALC literature in non-work areas during non-work hours. The commission found that Soucie's testimony suggested distribution anywhere on the building premises was forbidden. I agree with appellee that there was competent substantial evidence to support that determination and would affirm on the point. I see no need to require PERC to rewrite the order in regard to this point.

Appellant's third point was that PERC erred by holding that SPALC should have access to the School Board's bulletin boards. I generally concur with the majority's handling of this point. In essence, SPALC should be given the opportunity to use an appropriate bulletin board but it does not have to be one that is restricted for use by employees in exchanging personal messages.

I also concur in the majority's view as to School District Policy 2.19. The language of that policy was not the problem. However, it was the interpretation given the policy that led to the commission of unfair labor practices. The record reveals competent substantial evidence to support the commission's finding that the same areas in which Barnhouse distributed SPALC materials were not considered work areas when he was promoting AFSCME, the incumbent bargaining agent. Barnhouse testified that he had express permission from the director to distribute AFSCME materials, but had been specifically prohibited from distributing SPALC information to other employees. It is clear that the school board impermissibly enforced Policy 2.19 in a discriminatory manner.

As to attorney's fees on appeal, since my view is that appellee's position should substantially prevail, I would grant attorney's fees.

SCANNED DOCUMENT - PLEASE DO NOT CITE

16 FPER ¶ 21225

Florida Public Employees Relations Commission

American Federation of Teachers - Hillsborough, Charging Party,

V.

The School Board of Hillsborough County, Florida, Respondent,

V.

Hillsborough County Classroom Teachers Association, Intervenor.

Docket No. CA-89-85; Order No. 90U-195

May 25, 1990

Before Mattimore, Chairman; Sloan, Commissioner

Interference -- Threats - 72.131

School principal, by questioning teacher as to whether her organizing activities on behalf of rival union might jeopardize her reputation among her peers, did not engage in unlawful interference where statement was not threatening or coercive on its face and where there was no evidence that statement was otherwise improperly motivated.

Interference -- Literature Distribution -- Access -- 72.115, 72.121

Where school district provided bulletin boards for use by incumbent teachers' union, district was required to provide employees who supported rival union with similar access to separate bulletin boards, or to boards used by incumbent union, or other designated bulletin boards. However, district lawfully removed rival union's organizational literature from tables in teachers' lounge during working hours where there was no evidence that district allowed incumbent union to leave organizational literature in lounge during working hour. Evidence that newspaper published by incumbent's national affiliate was found in lounge during working hours was insufficient to establish that district favored incumbent to distribute organizational material.

APPEARANCES:

Sally C. Gertz, Tallahassee, attorney for charging party.

Thomas M. Gonzalez, Tampa, attorney for respondent.

Ronald Meyer, Tallahassee, attorney for intervenor.

Final Order

MATTIMORE, Chairman.

On December 7,1989, the American Federation of Teachers-Hillsborough (AFT-H) filed an unfair labor practice charge alleging that the School Board of Hillsborough County, Florida (School Board), violated § 447.501(1 )(a) and (b), Florida Statutes (1989),⁽⁸⁾ by restraining two teachers, Philip Lopez and Elizabeth Vilmure, from distributing and posting AFT-H organizational literature and by making a threatening and coercive statement to Vilmure. On December 18, the Commission's General Counsel found the charge to be sufficient insofar as it alleged a violation of § 447.501(1)(a). Following an evidentiary hearing, a Commission hearing officer issued a recommended order concluding that the School Board committed an unfair labor practice by refusing to allow Lopez and Vilmure to post or distribute AFT-H organizational literature but did not make a threatening or coercive statement to Vilmure. The hearing officer further concluded that the AFT-H is entitled to an award of attorney's fees and costs for the portion of the charge on which he found it had prevailed. The School Board filed exceptions to the hearing officer's recommended order and a supporting brief. The AFT-H filed a response to the School Board's exceptions. Oral argument was heard on May 18.

First, we will address the School board's allegations of hearing officer bias. Throughout its exceptions, and particularly in exceptions one through three, the School Board takes issue with the hearing officer's conduct in this case, alleging that he demonstrated bias in his failure to permit the School Board to fully develop its agency defense both by limiting discovery and by making evidentiary rulings adverse to the School Board and also, in his statement at the commencement of the hearing as to his opinion of the current state of the law regarding the issues

in this case. We find no error in the hearing officer's conduct prejudicial to the School Board's case. The hearing officer's statement concerning his understanding of the applicable legal precedent did not prejudice the defense. Neither was the School Board's case impaired in any manner by the hearing officer's rulings on discovery or the presentation of evidence. We might not agree with all of the rulings made by the hearing officer in this case; however, in each instance when the School Board requested a proffer it is obvious that the evidence at issue would not affect our ultimate resolution of this case. Accordingly, exceptions one through three are denied.

Having reviewed the entire record, the Commission concludes that the hearing officer's findings of fact which are relevant and necessary to our resolution of the issues raised by this charge are supported by competent, substantial evidence and the proceedings on which they are based comply with the essential requirements of law. Accordingly, we adopt those factual findings as our own. The School Board's exceptions 22, 27, 28, 35 and 36 take issue with findings of the hearing officer which are either unnecessary or irrelevant to our ultimate disposition of this charge. Therefore, these exceptions are dismissed as moot.

Threatening or Coercive Statements

The AFT-H charges that principal Ben Peretz made Threatening or Coercive statements to Vilmure. The hearing officer found that Peretz questioned whether Vilmure's activities on behalf of the AFT-H would jeopardize her reputation among her peers, but that the conditions of her employment have not been affected by her support of the AFT-H and her relationship with Peretz has remained professional. Neither party excepted to these findings or to the conclusion that Peretz did not threaten or coerce Vilmure. Upon consideration, we agree with the hearing officer's analysis and conclusion that Peretz's comments to Vilmure do not violate § 447.501(1 )(a). Accordingly, this portion of the charge is dismissed.

Posting and Distribution of Organizational Literature

The salient facts found by the hearing officer reveal that the AFT-H is a rival union seeking to displace the Hillsborough Classroom Teachers Association (HCTA) as certified bargaining representative for the School Board's instructional personnel. AFT-H Organizational literature posted on bulletin boards and placed in the faculty lounge by teachers Vilmure and Lopez was removed by their principals and further Posting and Distribution restrained through written memoranda. At the same time, the School Board provided bulletin boards for the use of the HCTA, and a newspaper published by the NEA (an affiliate of the HCTA) was found in one faculty lounge. The AFT-H charges that the principals' actions interfered with Vilmure and Lopez's exercise of rights secured by § 447.301, in violation of § 447.501(1)(a).⁽⁹⁾ In its defense, the School Board first maintains that its collective bargaining agreement with the HCTA prohibits Organizational activities by a rival union at this time. The hearing officer rejected this argument, reasoning that while the contract bar of § 447.307(3)(d) prohibits a rival from filing a representation petition at this time, it does not bar other Organizational activity. He further concluded that the AFT-H's rights were not limited by the informal agreement between the HCTA and the School Board, wherein the HCTA agreed not to raid the AFT-H blue-collar unit. We agree with the hearing officer's analysis of this defense and deny the School Board's exception nine which takes issue with that analysis. Furthermore, we decline the School Board's invitation, extended in that exception, to establish parameters limiting Organizational activities of rival unions when the contract bar is operative. We are unpersuaded that such restriction of Organizational activities is either necessary, warranted, or within our authority.

The School Board also argues that Vilmure and Lopez acted at the direction of the AFT-H as part of an Organizational campaign and that under these circumstances they should be treated as non-employee representatives of the AFT-H with no per se right to organizational access to school facilities. The hearing officer rejected this defense, finding that employees retain their individual organizational rights as employees despite the fact that their organizational efforts are directed by a labor organization. The hearing officer concluded that the individual rights of Vilmure and Lopez were violated by interference and restraints placed upon their Posting and Distribution activities by the School Board.

Upon review of the relevant statutory and case law, we conclude that both the parties and the hearing officer have mis-perceived the clear direction of the statute and the First District Court of Appeal's succinct application of the statute to a virtually identical factual scenario in School Board of Lee County V. PERC, 513 Sc.2d 1286 (Fla. 1st DCA 1987). We are impressed that Lee County is directly on point to the resolution of the instant unfair labor practice charge.⁽¹⁰⁾

The Court's analysis in Lee County addresses the rights of employees acting in furtherance of rival unions. Specifically, Lee County held that a school board's limitation of use of a bulletin board to the Posting of personal messages, excluding literature of both the incumbent and rival unions, was reasonable and that the Commission exceeded its statutory authority when it ordered the school board to give a rival union access to this bulletin board. The court concluded, however, that because the incumbent union had been provided a separate bulletin board of its own, it would be appropriate for the Commission to direct the school board to afford the rival union one of three options:

(1) the use of a separate bulletin board of its own; (2) the use of the incumbent's bulletin board: or (3) the use of some other bulletin board designated by the school board. Id. at 1293.

In the case before us, the School Board has provided separate bulletin boards for use by the HCTA. Therefore, under the rule in Lee County we conclude that the School Board's failure to allow use of similar facilities for Posting material supportive of the AFT-H violates § 447.501(1 )(a).⁽¹¹⁾ The identity, autonomy, or motivation of the employees Posting or seeking to post AFT-H materials is irrelevant to the analysis of this unfair labor practice.⁽¹²⁾ Indeed, in Lee County the court recognized the very close relationship between the employee involved and the rival union, but did not find that this relationship warranted treating the employee as a non-employee organizer. Likewise, the nature of the other material posted on the bulletin board from which AFT-H materials were removed, the character of that board, or the fact that only certain AFT-H materials were removed are immaterial to this analysis due to the unrestricted prohibition articulated in the School Board's memoranda, and in the manner in which it was enforced by the principals.⁽¹³⁾ The issue presented by this case is simply a question of relative rights between the employee supporters of an incumbent union and its rival in their access to some bulletin board facility. Accordingly, we hold that as long as the School Board provides bulletin boards for HCTA's use, it must provide employees who support the AFT-H and any other similarly situated rival union with similar access to either separate bulletin boards of their own, the boards used by the HCTA, or some other designated bulletin boards.⁽¹⁴⁾ We do not need to reach the question of an individual employee's access to a bulletin board if there was no exclusive bulletin board granted to the incumbent union or if the incumbent board was limited to non-Organizational messages. See Dade Teachers Association. FTP-NEA V. School Board of Dade County and Dade Teachers Association, FTP-NEA V. United Teachers of Dade, Local 1974, AFT, 7 FPER ¶ 12398 (1981), aff'd, 421 So.2d 645 (Fla. 3rd DCA 1982). There is no evidence in this case that the School Board limited the HCTA bulletin board to non-organizational messages.

Likewise, Lee County provides the rule controlling employee distribution of union literature in the workplace. The court recognized that the right of employees to distribute literature is not absolute, but must be balanced against the competing interest of the employer in the efficient operation of the workplace. Section 447.509(1 )(b) specifically prohibits distribution of literature "during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools... and any similar public installations" but provides that "[t]his section shall not be construed to prohibit distribution of literature during the employee's lunch hour or in such areas not specifically devoted to the performance of the employee's official duties." In analyzing this statutory prohibition, the First District Court of Appeal held that § 447.509 "is intended to prohibit distribution in working areas at all times, and distribution in nonworking areas during the working hours of the employees." Lee County, 513 So.2d. at 1292. Specifically, the court clarified that an employee break room is not a working area, and distribution in this area is allowed during nonworking time, e.g., during lunch and before and after work. Id. at 1292-93.

Here, we are confronted with the School Board's restraint on employee distribution of AFT-H literature by prohibiting its placement in teachers' lounges. Because such lounges are not working areas, distribution is allowed in these areas during nonworking hours. The definition of nonworking hours in this setting is problematic since lounges are commonly utilized by teachers during working hours such as planning periods, as well as during the nonworking times of lunch and before and after school. Distribution may involve leaving material in the lounge throughout all of these times.⁽¹⁵⁾ In this situation, we again conclude that the crux of the issue is the relative access permitted to employees supporting rival and incumbent unions. If an employee supporting an incumbent union is allowed to distribute organizational literature in a nonworking area, such as the lounge, and the literature is allowed to remain there during the working hours of employees, any employee may distribute the organizational literature of a rival union in a like manner. However, if an employee supporting an incumbent union is restricted to distribution in nonworking areas only during nonworking times, such as before and after school, and is prohibited from leaving organizational material in these areas during working hours, distribution by employees supportive of rival unions can be likewise limited.

Upon consideration of the record before us, we cannot conclude that the School Board's removal of AFT-H organizational literature placed on tables in faculty lounges constitutes an unfair labor practice. The AFT-H literature was placed on a table in the lounges and left there throughout both working and non-working times. Pursuant to § 447.509(1 )(b), the School Board may restrict such distribution from occurring during working hours. Therefore, unless the School Board allowed the employee supporters of the incumbent HCTA to leave its organizational material in the lounges and permitted HCTA organizational literature to remain there during working hours the School Board's actions were not unlawful. The record discloses evidence of distribution of only one item of HCTA-related literature in a faculty lounge, an NEA newspaper. There is no evidence as to how this newspaper came to be in the lounge or how long it remained there. Because the evidence is insufficient to determine whether the NEA paper was properly distributed during nonworking hours, or even if it was placed in the lounge as part of a distribution, we do not find that the School Board has acted improperly in its restraint of the distribution of AFT-H literature. Accordingly, we conclude that the School Board's removal of AFT-H materials from lounges during working hours did not constitute an unfair labor practice and we dismiss this final portion of the charge.

Attorney's Fees

Finally, we turn to the AFT-H's request for attorney's fees and costs. A charging party is entitled to an award of fees for the portion of a charge on which it has prevailed if the respondent knew or should have known that its conduct violated Chapter 447, Part II. See IBEW Local Union 2358 V. Jacksonville Electrical Authority, 14 FPER ¶ 19196 (1988). Therefore, the AFT-H is eligible to receive an award of fees and costs on a pro-rata basis for the bulletin board issue on which it prevailed. We have resolved this issue in reliance on the ruling of the First District Court of Appeal in Lee County. Pursuant to this analysis, the School Board's defense asserting that the employees were mere agents of non-employee organizers was found to be irrelevant. The School Board knew or should have known that its conduct violated the established standard in this case. Accordingly, we find that an award of fees and costs to the AFT-H for this portion of the charge is appropriate and the School Board's exception fifteen to such an award is denied. The amount of such reasonable fees and costs shall be determined in the manner provided in Florida Administrative Code Rule 38D-14.004.

Conclusions of Law

Based on the record, we make the following conclusions of law:

1. The School Board of Hillsborough County is a public employer within the meaning of § 447.203(2), Florida Statutes.

2. The American Federation of Teachers-Hillsborough is an employee organization within the meaning of § 447.203(11), Florida Statutes.

3. The School Board of Hillsborough County, by and through its agents, violated § 447.501(1 )(a), Florida Statutes, by restraining access to bulletin boards for the posting of organizational literature supporting the American Federation of Teachers-Hillsborough.

4. The School Board of Hillsborough County did not violate § 447.501(1 )(a), Florida Statutes, by restraining distribution of American Federation of Teachers-Hillsborough literature in faculty lounges.

5. The School Board of Hillsborough County did not violate § 447.501(1 )(a), Florida Statutes, by making threatening or coercive statements to an employee concerning her exercise of rights guaranteed under Chapter 447, Part II, Florida Statutes.

6. The American Federation of Teachers-Hillsborough is entitled to an award of attorney's fees and costs pursuant to § 447.503(6)(c), Florida Statutes.

Order

Having concluded that the School Board of Hillsborough County engaged in an unfair labor practice in violation of § 447.501(1)(a), Florida Statutes, the Commission ORDERS the following:

(1) The School Board of Hillsborough County shall cease and desist from:

a. Interfering with, restraining, or coercing public employees in the exercise of rights guaranteed them by Chapter 447, Part II, Florida Statutes, by discriminating between the Hillsborough Classroom Teachers Association and employees supporting the American Federation of Teachers-Hillsborough in the application of its policy concerning access to bulletin boards for posting of organizational literature.

b. In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed under Chapter 447, Part II.

(2) The School Board of Hillsborough County shall take the following affirmative action which the Commission finds necessary to effectuate the purposes of Chapter 447, Part II, Florida

Statutes:

a. Allow employees supportive of the American Federation of Teachers-Hillsborough to use either separate bulletin boards of their own, the bulletin boards authorized for use by the Hillsborough Classroom Teachers Association, or some other designated bulletin boards for as long as the School Board allows the Hillsborough Classroom Teachers Association access to bulletin boards.

b. Pay to the American Federation of Teachers-Hillsborough its reasonable attorney's fees and costs incurred in litigating the portion of this charge on which it prevailed.

c. Post for sixty (60) days, beginning with the first teacher working day of the 1990-91 school year, in conspicuous places where notices to School Board employees are customarily posted, the attached notice to employees.⁽¹⁶⁾ Copies of the notice shall be signed by an authorized representative of the School Board prior to posting. The School Board shall take reasonable steps to ensure that the notices posted are not altered, defaced, or covered by other material.⁽¹⁷⁾

d. Notify the Commission in writing, within twenty (20) calendar days from the date of this order that steps have been taken to comply herewith.

This order may be appealed to the appropriate district court of appeal. A notice of appeal must be received by the Commission and the district court of appeal within 30 days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in §§ 447.504 and 120.68, Florida Statutes (1989), and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.005.

It is so ordered.

SLOAN, Commissioner, concurs.

********** END DOC **********

Scanned Document - Please do not cite.

FPER ¶22308

Florida District Court of Appeal, First District

American Federation of Teachers - Hillsborough,

Appellant/Cross-Appellee,

V.

School Board of Hillsborough County and Public Employees Relations Commission, Appellee/Cross-Appellant.

Docket No.90-2155

July 18, 1991

Before Joanos, C.J.; Smith and Barfield, JJ.

Interference - Literature Distribution - Access - 72.115, 72.121

Where school district provided bulletin boards for use by incumbent teachers' union, district was required to provide employees who supported rival union with similar access to separate bulletin boards, or to boards used by incumbent union, or other designated bulletin boards. However, district lawfully removed rival union's organizational literature from tables in teachers' lounge during working hours where there was no evidence that district allowed incumbent union to leave organizational literature in lounge during working hours. Evidence that newspaper published by incumbent's national affiliate was found in lounge during working hours was insufficient to establish that district favored incumbent to distribute organizational material. PERC's decision, 16 FPER 21225 (1990), affirmed.

APPEARANCES:

Sally C. Gertz, Special Counsel, FEA/United, Tallahassee, for appellant/cross-appellee.

Thomas M. Gonzalez and Deborah S. Crumbley of Thompson, Sizemore & Gonzalez, P.A., Tampa, for appellee/cross-appellant School Bd.

Suzanne M Choppin, Staff Counsel, Public Employees Relations Commission, Tallahassee, for appellee PERC.

JOANOS, Chief Judge.

The American Federation of Teachers-Hillsborough (AFT-H) has appealed from a final order of the Public Employee Relations Commission (PERC). PERC found that the School Board of Hillsborough County (Board) did not commit an unfair labor practice by restricting distribution of minority union organizational material in faculty lounges. The Board has cross-appealed from a finding in the same order that it committed an unfair labor practice by restricting the posting of the same material on school bulletin boards. We affirm.

AFT-H is a union whose members want to replace the Hillsborough County Teachers Association (HCTA) as the certified bargaining agent for instructional employees of the Board. Ms. Vilmure and Mr. Lopez are teachers and Board employees who are AFT-H members, and stewards in their respective schools. In September 1989, both were told by their principals that they could not post AFT-H organizational materials on school bulletin boards, nor leave them lying about on tables and counter-tops in the teachers' lounges.

Section 447.501(1 )(a) provides that it is an unfair labor practice for a public employer to "interfere with, restrain, or coerce public employees in the exercise of any rights guaranteed them under this part." Section 447.301(1) states that "public employees shall have the right to form, join, and participate in any employee organization of their own choosing." This includes the right to communicate about organization at the job site, Okaloosa-Walton Co. Jr. College Board of Trustees V. PERC, 372 So.2d 1378 (Fla. 1st DCA 1979), cert. den. 383 So.2d 1200 (Fla. 1980), subject to the limitations established in section 447.509(1)(a) and (b). Subsection (b) prohibits the distribution of literature "during working hours in areas where the actual work of public employees is performed." Based on the restrictions placed on Vilmure and Lopez, AFT-H filed an unfair labor practice charge against the Board in December 1989.

The Board's main defense to the charge was that Vilmure and Lopez were not "employees" with communication rights, but simply "fronts" for AFT-H, which had no right of access to school facilities for organizational purposes. PERC denied certain requests for discovery to bolster this defense. However, the Board was allowed to question Vilmure and Lopez along these lines, and both testified that they had acted from personal belief in the AFT-H. The hearing officer rejected the defense, finding it illogical to abridge the right to communicate about organization when it was exercised in favor of a particular organization.

The hearing officer proceeded to find that the Board had committed an unfair labor practice by banning AFT-H material from school bulletin boards, either because the boards were used for general purpose announcements, Dade Teacher's Assn.. FTP-NEA V. School Board of Dade Co., 7 FPER 12398 (1981), aff'd. 421 So.2d 6-5 (Fla. 3d DCA 1982), or because space was provided to HCTA, School Board of Lee Co. V. PERC, 513 So.2d 1286 (Fla. 1st DCA 1987). As to leaving materials in the teachers' lounges, the hearing officer found that this constituted distribution, which is allowed only in a non-work area between employees on non-work time. Because the lounge was a non-work area, Lopez and Vilmure were on non-work time, and some if not all" of the employees there were on non-work time, he also found a violation as to the lounge.

In its final order, PERC adopted the factual findings of the hearing officer. It also agreed that employee status is not obviated by a close relationship with a rival union. As to the bulletin boards, PERC found the issue governed by Lee Co., that is, if space is provided to an incumbent union, it must be provided to rival unions as well. The hearing officer's recommendation as to this issue was therefore adopted. However, as to the lounge distribution, PERC noted that such distribution had to be on the non-work time both of the distributing employees and those who were the intended recipients. While agreeing that Vilmure and Lopez were on non-work time, and that the lounge was a non-work area, PERC found that recipient employees often worked in that area. Therefore, AFT-H material could be banned, unless distribution of HCTA material was allowed. Finding no evidence of such distribution, PERC found no violation as to the lounge.

AFT-H appeals PERC's ruling as to the lounges, arguing first that it erred in interpreting section 447.509(1)(b) to mean that both distributing and recipient employees must be on non-work time. This is simply a matter of statutory interpretation by the agency charged with its enforcement, in which it is accorded wide discretion. Natelson V. Department of Insurance, 454 So.2d 31,32 (Fla. 1st DCA 1984). However, AFT-H also argues that, given the correctness of the interpretation, PERC based its decision on a fact not found in the record, i.e. that some recipients in the lounges were working. However, the hearing officer found only "some if not all" of the recipient employees were not working. AFT-H did not file an exception to that finding, and PERC's statement that "some teachers work in the lounge" is not contrary to or inconsistent therewith.

Finally, AFT-H argues that PERC erred in rejecting the hearing officer's finding that, by its actions, the Board unlawfully discriminated against AFT-H literature. However, the hearing officer found only that one HCTA newspaper was present in the teachers' lounges at the relevant time, and PERC adopted that finding. It simply went on to hold that the mere presence of that newspaper did not prove discrimination as a matter of law, i.e. that the Board had permitted "distribution" of the HCTA paper while barring AFT-H material, or that the Board had allowed it to remain while removing AFT-H material. We find no error as to this issue.

Turning to the cross-appeal, the Board alleges that PERC: 1) failed to find that Vilmure and Lopez were "fronts" for AFT-H, and 2) ignored the fact that HCTA's own bulletin board use was restricted, and that it did not solicit AFT-H's blue-collar membership. First, the Board cites no authority to the effect that an employee gives up his right to communicate about organization when he joins a union. More importantly, there was no evidence that Vilmure and Lopez acted as "fronts" for AFT-H. They were Board employees, AFT-H did not tell them what to distribute or that distribution was required, did not pay them to distribute, and they expressed personal belief in AFT-H goals. We do not address the argument that PERC's discovery rulings prevented an adequate showing on this issue, in that those rulings are not argued on their merits. See Winslow V. Ft. Myers Beach Fire Control District, 4 FPER 4268 (1978).

Finally, the Board argues that the PERC should have rejected the hearing officer's recommendation as to the bulletin boards under the same logic it applied to the teachers' lounges, i.e. the Board is not allowing HCTA to do anything it is not allowing AFT-H to do. It points to certain restrictions on the content of HCTA union material, and to an agreement by HCTA not to solicit AFT-H's blue collar membership. However, the evidence does not show the exact nature of the content restriction or how it is enforced. Lee Co. clearly requires that, if bulletin board space is provided to an incumbent union, it must be provided to rival unions. We decline to find that content restrictions can be used to circumvent that requirement. Finally, it is clear that HCTA simply chose not to solicit AFT-H membership. This cannot be equated with affirmative restriction of such solicitation by AFT-H.

Affirmed.

SMITH, J., concurs.

BARFIELD, J., dissents with opinion.

BARFIELD, Judge, dissenting:

The Public Employees Relations Commission and the majority of this court have concluded that management may prohibit distribution of union literature in a teacher's lounge found to be a non-work area because some teachers may work in the lounge. However, management may not prohibit distribution of the same literature in the same lounge if it is appended to the bulletin board because a rival union bargaining agent has a contractual right to use of the bulletin board to publish notices. Upon this rationale management pays attorney's fees for having committed an unfair labor practice. I trust management can now better understand the error of its ways then can I.

--end-

ENDNOTES:

1. All statutory references will be to Florida (1983) unless otherwise indicated.

2. The Commission's finding that SPALC is an employee organization within the meaning of section 447.203(11), Florida Statutes (1983), is not challenged on appeal.

3. The abbreviated name for another employee organization, American Federation of State County and Municipal Employees, AFL-CIO.

4. Section 447.501 provides in pertinent part: (1) Public employers or their agents or representatives are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

5. The "Basis of the charge" reads: Since on or about February 14, 1985, the employer has promulgated and enforced an overbroad no solicitation/no distribution rule against employees of the School Board of Lee County who were seeking to communicate with fellow employees in the exercise of their rights guaranteed by Section 447.301, Florida Statutes (1983) to form and join an employee organization to replace the employee organization which is currently certified as exclusive bargaining representative of these employees.