19
CIR 1 (2013)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
LINCOLN
FIREFIGHTERS ASSOCIATION, LOCAL 644,
Petitioner, v. CITY OF LINCOLN, NEBRASKA,
Respondent. |
) ) ) ) ) ) ) ) |
|
Case
No. 1321 Rep.
Doc. No. 459 FINDINGS
AND ORDER |
APPEARANCES:
For
Petitioner: John
E. Corrigan
Dowd
Howard & Corrigan, LLC
1411
Harney Street, Ste 100
Omaha,
Nebraska 68102
For
Respondent: John
C. Hewitt
Cristin
McGarry Berkhausen Cline
Williams Wright Johnson & Oldfather, L.L.P.
1125
South 103rd Street, Ste 600
Omaha,
Nebraska 68124
Before Commissioners Lindahl, Blake,
and Pillen
NATURE OF THE CASE:
On January 23, 2013, the Lincoln
Firefighters Association Local 644 (“Union” or “Petitioner”) filed a Petition
seeking clarification of a bargaining unit which includes certain employees of
the City of Lincoln (“City” or “Respondent”) within the Fire and Rescue
Department. Specifically, Petitioner
seeks clarification as to whether the newly-created position of Fire Air
Technician should be included in the current bargaining unit.
On February 14, 2013, Respondent filed
its Answer and Counter Petition for Unit Amendment, asserting that the Fire Air
Technician should not be included in the bargaining unit and that additionally the
Fire Equipment Mechanic position does not share a community of interest with
the existing bargaining unit and should be excluded. On March 29, 2013
Petitioner filed a Motion to Dismiss Respondent’s Counter-Petition, alleging
that the Commission lacked subject matter jurisdiction to hear Respondent’s
Counter-Petition regarding the Fire Equipment Mechanic. Trial was held on April
2, 2013 at the Commission before the Honorable Loren L. Lindahl. Subsequent to
the trial, the parties submitted post-hearing, reply, and surreply briefs for
consideration.
FACTS:
The bargaining unit in question currently
includes employees that hold the ranks of Firefighter, Fire Apparatus Operator,
Fire Captain, Fire Prevention Inspector I and II, Firefighter/Paramedic, Fire
Equipment Mechanic and Captain-EMS Training. Petitioner seeks to include the
newly-created position of Fire Air Technician, while Respondent seeks to
exclude this position as well as remove the position of Fire Equipment Mechanic
from the current bargaining unit.
The Fire Equipment Mechanic has been
part of the bargaining unit since at least 1974. Fire Equipment Mechanics repair
and perform maintenance on all fire apparatus, ambulance vehicles, and related
equipment, and test fire equipment for defects. Fire Equipment Mechanics work a
40-hour workweek. Fire Equipment Mechanics can be called out to the fire ground
to provide assistance for any problem equipment. These employees are issued
turnout gear, or the same gear that any employees deployed to a fire scene are
required to wear. At some point, Fire Equipment Mechanics were required by the City
to take the Firefighter I certification course for basic firefighting skills
although possessing the Firefighter I certification is not required for the
position. The Fire Equipment Mechanic is entitled to out of class pay if
assigned to fill the space of an absent Division Chief of Logistics and
Maintenance in excess of four hours, is paid on-call pay if on on-call status
during the weekend, and receives longevity pay under the collective bargaining
agreement. The City currently employs two Fire Equipment Mechanics, and they
are housed out of the Municipal Services Center.
The Fire Air Technician position was
created in the fall of 2012 and is responsible for the maintenance, repair, and
testing of respiratory protection equipment used by firefighters. This work
includes performing annual fit testing for all respiratory protection equipment
and fire fighting gear; keeping record of all maintenance schedules, repairs
and testing; ensuring equipment compliance with NFPA standards; and
recalibrating air quality testing equipment. The filling of air bottles,
repair, and maintenance work performed by this job classification was
previously performed by the Fire Equipment Mechanic and other bargaining unit
employees in the Union. The coordination of face fit testing was performed by a
member of the Public Association of Governmental Employees (“PAGE”) union.
The Union sought to include the Fire
Air Technician in the bargaining unit during negotiations. However, the City
did not agree that the position shared a community of interest with the
bargaining unit and placed the Fire Air Technician in the PAGE bargaining unit.
Subsequent to the filing of the Petition, the new collective bargaining
agreement (“CBA”) for 2012-2014 was ratified by the Union around February 25,
2013 and ratified by the City around March 25, 2013. The Fire Equipment
Mechanic was included in the description of the bargaining unit for the CBA.
DISCUSSION:
Petitioner
is seeking a unit clarification to determine whether the newly created position
of Fire Air Technician shares a community of interest with the bargaining unit
represented by the Union. Respondent argues that the Fire Air Technician does
not share a community of interest with the bargaining group, and that the unit
should be amended to remove the Fire Equipment Mechanic from the unit because
it also does not share a community of interest with the unit. On March 29, 2013
Petitioner filed a Motion to Dismiss Respondent’s Counter-Petition to exclude
the Fire Equipment Mechanic from the bargaining unit for lack of subject matter
jurisdiction.
Jurisdiction
Petitioner argues that the
Commission lacks subject matter jurisdiction to exclude the Fire Equipment
Mechanic from the bargaining unit because doing so would alter an existing collective
bargaining agreement, an action which Petitioner argues is outside the
Commission’s jurisdiction. Article I, Section B of the CBA states that
“Employee shall mean any uniformed, regular, full-time employee of the Lincoln
fire and Rescue Department of the City of Lincoln, Nebraska, including
and limited to Firefighter, Fire Apparatus Operator, Fire Captain, Fire
Prevention Inspector(s) I and II, Firefighter/Paramedic, Fire Equipment
Mechanic, and Captain C EMS Training.”
(Emphasis added).
Commission Rule 12 allows a party to
file a petition for clarification or amendment of a certified or recognized
bargaining unit and sets forth the requirements for such a petition. The
Commission promulgated this rule pursuant to its authority under Neb. Rev. Stat. § 48-838(2) to
determine the appropriate unit for bargaining purposes.
However,
the Commission does not have jurisdiction to interpret and apply terms and
conditions of a collective bargaining agreement. International Brotherhood of Electrical Workers Local 1483 v. Omaha
Public Power District, 16 CIR 514 (2011). The Nebraska Supreme Court stated
in Transport Workers of America v.
Transport Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102
(1979) that
“The CIR performs
an important and vital function in resolving impasses in the public sector. It
is not, however, a substitute for the District Court with regard to existing
and agreed terms, tenure, and conditions of employment. It has not been made a
court by the Legislature. The proper forum to resolve this dispute is the
courts.”
Id. at 35. The
parties ratified the CBA covering August 16, 2012 through August 31, 2014. The
language of Article I, Section B of the CBA clearly states which job
classifications are considered “Employees” and therefore covered by the CBA.
The Fire Equipment Mechanic is listed very clearly as being an “Employee”
covered by the CBA. The Commission does not have the authority to alter
collective bargaining agreements. That is a function for the courts.
Respondent argues that the
Commission has jurisdiction to hear the Counter-Petition, as Commission rules
allow for a party to seek amendment of an existing bargaining unit. Respondent
cites the recent case County of Lancaster
v. Local 2468 of the American Federation of State, County and Municipal
Employees AFL-CIO, 17 CIR 262 (2012) to
support its argument. In County of
Lancaster, the Commission held that changes to the composition of a
bargaining unit is a permissive subject of bargaining, meaning that the subject
can be raised by either party during bargaining but the non-raising party is
not required to bargain over it, and allowed for a Rule 12 amendment to a
long-existing bargaining unit. Id. at
268.
Respondent
is correct in its reading of County of
Lancaster in that the case illustrates a circumstance for the allowance of
amending an existing bargaining unit. That being said, there are differences
between County of Lancaster and the
present case. The parties in County of
Lancaster did not negotiate about the composition of the bargaining unit
and had not ratified a collective bargaining agreement before the unit clarification
petition was filed, so there was no question of possible contract
interpretation. In the present case, the parties had ceased negotiations for a
new contract prior to the filing of the Petition and ratified the contract
shortly before the filing of the Counter-Petition. The composition of the
bargaining unit was discussed in negotiations. The evidence shows that the
Union requested that the Fire Air Technician be included in the bargaining unit
and that the City did not believe that the position shared a community of
interest with the other positions, including the Fire Equipment Mechanic, and
placed the position within the PAGE unit. There is no evidence that the City
ever brought forth the Fire Equipment Mechanic’s inclusion in the bargaining
unit as an issue for negotiation despite the fact that the composition of the
bargaining unit was being negotiated. The CBA ratified by the parties clearly includes
the Fire Equipment Mechanic in the list of “Employees” covered by the CBA, as
well as its wages and terms and conditions of employment as agreed upon. We are
without jurisdiction to make any changes to the existing bargaining agreement. Therefore,
the Commission finds that we are without subject matter jurisdiction over
Respondent’s Counter-Petition and Petitioner’s Motion to Dismiss Respondent’s
Counter-Petition is hereby granted.
Fire Air Technician
Petitioner contends that the Fire
Air Technician should be included in the bargaining unit, and urges the
Commission to adopt a National Labor Relations Board (“NLRB”) standard for the
inclusion or exclusion of a newly created job classification to an already
existing bargaining unit based on In re Premcor,
Inc., 333 N.L.R.B. 1365 (2001). Respondent argues that the Commission in Marcy Delperdang v. United Electrical Radio
and Machine Workers of America, 13 CIR 400 (2001) clearly stated that NLRB
standards do not apply with regard to unit clarification cases before the
Commission, and that we should continue to use the “community of interest”
standard which has developed in CIR case law.
We have followed a basic inquiry in bargaining
unit determination as to whether a community of interest exists among the
employees which is sufficiently strong to warrant their inclusion in a single
unit. American Association of University
Professors v. Board of Regents of the University of Nebraska, 198 Neb. 243,
261, 253 N.W.2d 1 (Neb. 1977). To determine whether a community of interest
exists, we have examined several relevant factors including mutuality of
interest in wages, hours and working conditions; duties and skills of
employees; extent of union organization; desires of the employees;
fragmentation of units; established policies of the employer; and statutory
mandates to assure proper functioning and operation of governmental service. See Sheldon Station Employees Association v.
Nebraska Public Power District, 202 Neb. 391, 275 N.W.2d 816 (Neb. 1979).
Petitioner argues that the Commission should adopt a different method of
determining whether a community of interest exists for a newly-created job
classification as developed under the NLRB.
The
Nebraska Supreme Court has stated that decisions under the NLRB are helpful but
not controlling. See City of Grand Island
v. AFSCME, 186 Neb. 711, 714, 185 N.W.2d 860 (1971); Nebraska Public Employees Local Union 251 v. Otoe County, 257 Neb.
50, 595 N.W.2d 237 (1999). We have used our discretion to follow or reject the
guidance of the NLRB in the continuing development of our case law, especially
in cases where similar facts have not been previously presented before the
Commission for determination.
In
Delperdang, the Commission declined
to follow NLRB case law and adopt a higher standard of proof when a
determination of an appropriate bargaining unit has been requested for a
previously certified bargaining unit. In doing so, we stated that “NLRB case
law is not helpful here where Nebraska case law has developed differently.” 13
CIR 400, 407 (2001). Respondent contends that this statement by the Commission
meant that NLRB standards to not apply to unit clarification. We disagree with
Respondent’s analysis of Delperdang.
Our decision to reject the NLRB standard of proof in that case was based on the
facts presented and should not be read as an overall ban on any consideration
of future developments of NLRB case law with regards to unit clarification
cases.
Delperdang
presented a familiar set of facts for consideration: whether an existing job classification
should be included or excluded from a bargaining unit. Nebraska case law concerning
a request for clarification or amendment under Rule 12 has developed to deal with
similar cases. However, the Commission has yet to make a determination of an
appropriate bargaining unit under the facts presented in this case: whether a
newly created job classification that performs work previously performed within
the existing bargaining unit should be included or excluded from that
bargaining unit. We shall therefore look to NLRB case law as guidance.
Petitioner
argues that the Fire Air Technician should be included in the bargaining unit
because it performs duties that have historically been performed by the
bargaining unit, citing In re Premcor,
Inc., 333 N.L.R.B. 1365 (2001). In Premcor,
a position was created whose job duties consisted of those that had been
performed by another job classification within the bargaining unit. A petition
was filed to clarify whether this newly created position should be included in
the existing bargaining unit, and it was found to be appropriately included.
The NLRB explained that “once it is established that a new classification is
performing the same basic functions as a unit classification historically had
performed, the new classification is properly viewed as remaining in the unit…”
Id. at 1366.
We
agree with Petitioner that the facts in the present case are analogous with Premcor and we shall adopt its analysis.
The Fire Air Technician is performing the same basic functions that a unit
classification had historically performed. The Fire Air Technician was created
to maintain, repair and test the self-contained breathing apparatus worn by firefighters
and EMS workers in the field. Although coordination of face fit testing was
performed by a member of another union, the remainder of the assigned job
duties for the Fire Air Technician had historically been performed by bargaining
unit members represented by Petitioner. Under Premcor, no further analysis would be necessary.
Nor
does further analysis reveal any change of circumstances that would justify
removing the Fire Air Technician from the bargaining unit. There was no
question of the validity of the prior job classification remaining in the
bargaining unit, and the evidence does not factually support a finding that the
new position with essentially the same functions should not continue to be
included in the unit. We therefore find that the Fire Air Technician shares a
community of interest with the bargaining unit and should be included in the
bargaining group represented by Lincoln Firefighters Association Local 644.
IT IS THEREFORE ORDERED
that:
1. Petitioner’s
Motion to Dismiss Respondent’s Counter-Petition for Lack of Subject Matter
Jurisdiction is hereby granted. Respondent’s Counter-Petition for Unit
Amendment is hereby dismissed.
2. The
position of Fire Air Technician shares a community of interest and should be
included in the bargaining unit represented by Lincoln Firefighters Association
Local 644.
Entered September ___, 2013.
NEBRASKA
COMMISSION OF INDUSTRIAL RELATIONS
Loren
L. Lindahl, Commissioner