#### ST. PETERSBURG JUNIOR COLLEGE, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Communications Workers of America, Respondent.

No. HH-62.

District Court of Appeal of Florida, First District.

April 25, 1978.

Rehearing Denied June 13, 1978.

*1104James M. Blue, of Smith, Young & Blue, Tallahassee, for petitioner.

I. Jeffrey Pheterson, Tallahassee, Rodney W. Smith and Gene Johnson, of Smith & Johnson, Gainesville, for respondent.

MILLS, Acting Chief Judge.

St. Petersburg Junior College (SPJC) seeks review of a final order entered by the Public Employees Relations Commission (PERC) finding that SJPC committed an unfair labor practice by refusing to rent a classroom to The Communication Workers of America (CWA) while allowing civic and cultural organizations to rent classrooms. The issue which is determinative of this review is whether SPJC was required to rent a classroom to CWA, who was attempting to reorganize SPJC’s employees, on the same basis that SPJC rented rooms to civic and cultural organizations.

CWA charged SPJC with discriminating against it by refusing to rent a classroom to it for a meeting, although renting classrooms to other community groups. After investigation, PERC filed a complaint against SPJC alleging that SPJC’s refusal to rent a classroom to CWA for the purpose of inducing SPJC’s employees to support CWA’s organizational efforts constituted an unfair labor practice. SPJC denied that its refusal to rent the classroom to CWA was based solely on the fact that CWA was an employee organization and denied that its acts constituted an unfair labor practice. SPJC affirmatively alleged that it was not required to rent rooms to any organization to which it did not desire to rent.

The hearing officer conducted a hearing and submitted a recommended order to PERC. PERC affirmed the hearing officer’s findings of fact but reversed his recommendations and conclusions of law.

In June 1976, CWA was attempting to organize certain employees at SPJC, and inquired about renting a classroom. Initially, it was told there would be no problem, but the next day SPJC advised CWA that it would not rent a classroom to it. On 14 July, CWA submitted a written request for the rental of a room on any weekday between 19 July and 30 July. No written response was ever received.

Most civic and cultural organizations that applied for meeting space were able to rent it. The only exceptions appeared to be a karate group that had previously done some property damage, a gay liberation group and the CWA. SPJC had never rented a room to any labor organization.

We grant SPJC’s petition for review and reverse PERC’s order. Although SPJC had rented classrooms to civic and cultural organizations, it had never rented a classroom to a labor organization. CWA was not in the same category as civic groups; it was not similarly situated. In addition, there is no requirement that SPJC rent its classrooms to anyone. *Dade County Classroom*
      *1105
      *Teachers Ass’n., Inc. v. Ryan,*225 So.2d 903 (Fla.1969). It has sole discretion to whom it will rent as long as it treats all applicants of the same class equally. *Ryan, supra.*

CWA was not deprived of the only reasonable means of communicating with the employees. SPJC did not interfere with CWA talking to employees or distributing literature at the employees’ parking lot.

SJPC was not required to rent a classroom to CWA on the same basis it rented classrooms to civic and cultural organizations. Nor was SPJC guilty of an unfair labor practice.

We grant the petition for review, reverse PERC’s final order and remand to PERC with instructions to enter an order consistent with the views expressed above.

SMITH, J., concurs with separate opinion.

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

SMITH, Judge,

concurring:

I agree that the unfair labor practice complaint against the College should be dismissed. I cannot agree that a labor union is necessarily, by its very nature, of a different class than other organizations which are permitted to rent College classrooms for meetings. I do not think it necessary to reach that question on this record.

CWA requested use of a classroom between one and four on a weekday afternoon for the purpose of meeting with and organizing College employees whose daily work began or ended during that period. The hearing officer’s recommended order included a factual finding that “meetings held during those times could have interfered with the program of the college.” That finding was approved by PERC, which nevertheless found that there was no rational basis for the College’s refusal to rent to CWA and that the College was motivated by anti-union bias.

In my view CWA as the charging party failed to demonstrate by evidence that it was of the same class as the local symphony organization, the churches, the boys’ club, the Caledonia Society, the Tampa Bay Hygiene Society and the other civic groups which were permitted to rent College facilities for various purposes. The evidence does not show when those groups held their meetings or that their meetings were intended to attract College employees. CWA’s meeting had no other purpose than to attract College employees. CWA did not demonstrate that its stated intention of attracting only off-duty employees could have been assured and made effective, and that the risk of interference with teaching and other College activities was insignificant br imaginary. That is reason alone, in my view, for the College to have treated CWA differently, and for us to vacate PERC’s order and remand the case for dismissal.

ERVIN, Judge,

concurring and dissenting.

I am in substantial disagreement with the views expressed by both my colleagues. I cannot agree with Judge Mills that a union is of a class different from any group to which meeting facilities have been previously rented, and that a union may be denied meeting space provided no union has been rented such space. St. Petersburg Junior College is, as defined by Section 447.203(2), a public employer and a public employer is specifically prohibited by Section 447.501(l)(b) from discouraging membership in any employee organization. As a governmental unit, St. Petersburg Junior College may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. *Cox v. Louisiana,*379 U.S. 536, 581, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (Black, J., concurring). Nor may it select which issues are worth discussing or debating in public facilities. “Once a forum is opened up to assembly or speaking by *some groups,*government may not prohibit others from assembling or speaking on the basis of what they intend to say.” *Police Department v. Mosley,*408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972) (e. s.).

*1106While both Judge Smith and I are in agreement that a public employer may not deny a union the same privileges it has previously granted to others for the purpose of public communication, I must disagree with Judge Smith’s conclusion that the un-appealed finding stating “the meetings held during those times could have interfered with the program of the college . . . ” compels outright reversal of PERC’s order. To hinge the outcome of this case upon one isolated finding of fact, which was little more than an opinion expressed by the examiner, in my view places too much reliance on the one finding and excludes consideration of any of the remaining facts recited in the order clearly showing frustration of union activity by the public employer. For example, the president of SPJC, prior to the union’s request for rental of the room, had issued a memorandum to managerial employees advising that union activities were being conducted on the campus and they should be on the lookout for such activities. Additionally, a union organizer had been followed by SPJC supervisory personnel each time she came upon the campus, thereby preventing her from having access to college employees. Moreover, at the beginning of the organization drive, notices of union meetings were removed from campus bulletin boards; although the notices later were allowed to be posted. Finally the examiner found that during the drive, SPJC did not cooperate with CWA to facilitate its organizational tasks in that a list of employees was not given to CWA until after a law suit had been filed by the union.

Thus there was conflicting evidence before the hearing examiner from which he could have inferred that no unfair labor practice resulted from SPJC’s refusal to rent because potential disruption of classes might have resulted by the union’s holding organizational meetings during working hours. On the other hand there was ample evidence that an unfair labor practice occurred by SPJC’s refusal, which refusal was simply the culmination of other frustrating tactics employed by SPJC to thwart the union from soliciting its employees from membership in the union. Nevertheless the hearing officer did not enter his recommended order on the basis of these disputed facts, but solely upon the conclusion of law, now rejected by a majority of this court, that SPJC had the discretion to refuse the rental of available classroom space to CWA so long as it refuses to rent available classroom space to all other labor organizations.

Since both Judge Smith and I agree that the union’s intended conduct, i. e., communication for the purpose of soliciting union membership is protected, and that a public employer, once having granted rental privileges to others for the purpose of communication, may not deny the union the same privilege, it was necessary for the examiner to determine whether such protected conduct was the substantial or motivating factor in the decision made by the public employer in denying the rental request. Cf. *Pasco County Sch. Bd. v. Fla. Public Employees Relations Commission,*353 So.2d 108 (Fla.1st DCA 1977). The hearing officer’s order never reached that question. Had he determined the decision of the employer was motivated by a non-permissible reason, i. e., anti-union bias, then the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to the union’s protected activity, the decision would have been reached despite the presence of a non-permissible reason. *Pasco County Sch. Bd. v. Fla. Public Employees Relations Commission,*supra, 120-122. These issues never having been decided, I would vacate the order of PERC and remand the case to the hearing officer to enter a recommended order based solely upon the evidence previously adduced at the hearing.