|IN THE MATTER OF:|||||CASE NO. 25|
|LOCAL 1015, AFL-CIO,||||
|v.|||||FINDINGS OF FACT,|
|CITY OF FREMONT,|||||LAW, AND ORDER.|
This case came on for hearing on May 14, 1970, on the Petition and Answer of the respective parties, evidence was adduced, and written briefs were filed by both parties thereafter.
From the pleadings, evidence, briefs and arguments of counsel, the Court makes the following findings of fact and reaches the following conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Nature of the "industrial dispute." The International Association of Firefighters, Local 1015 (Association), has sought to represent all of the members of the fire department of the City of Fremont (City) except the Chief of the Fire Department. The City made no objection to the firefighters' attempts to bargain collectively through the Association, but wanted a secret ballot election to determine the employees' desires and a determination by this Court whether Fire Captains, Fire Lieutenants and the Fire Marshal are properly management personnel or members of the employee unit for the purposes of the election and any collective bargaining thereafter. The Association agreed that a secret ballot election was proper. At the hearing, the Association and City agreed that if the Court determines the persons properly in the employee unit, the parties will mutually arrange for the conduct of an election without further order of the Court. This constitutes an industrial dispute under section 48-801(7) (as amended by LB 15) "...concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment..."
2. Organization and operation of the fire department. There are 29 members of the fire department; one chief, three captains, one fire marshal, three lieutenants, and 21 firefighters. With the exception of the chief and fire marshal, the men work alternating shifts of twenty-four hours on duty and forty-eight hours off duty. A normal shift consists of one captain, one lieutenant and seven firefighters, who headquarter and live at the City's single fire station. The chief and fire marshal work normal hours of 8:00 a.m. to 5:00 p.m. five days per week, but have fire phones in their homes so that they can respond to most fire alarms. All men are subject to recall for extraordinary emergencies, and all receive seven days of compensatory time and fourteen days vacation per year and can accumulate one day per month of sick leave up to a total of sixty days.
No question was raised with respect to the status of the fire chief. The chief "is responsible for the direction of all fire fighting, prevention, and fire service activities of the city." As also stated in his job description, 'These activities may include recommendations for recruitment of personnel and purchase of equipment, control of expenditures and preparation of budget estimates, and the assignment and supervision of personnel and equipment." The parties agreed that the fire chief should be a part of the City management for the purposes involved in this case.
The fire captains oversee the operations of the shift and the station. They see that the assigned work responsibilities of the shift are carried out. They are in control at a fire until the Chief arrives. When the Chief is unavailable, or does not respond to a call because it is not thought to involve a major fire, the captains are completely in control throughout the fire. Although they have no direct control of hiring, promotion, or similar personnel matters, they do prepare periodic personnel evaluation forms for the men working under them and they consult with the Chief and the city administrator on these matters. The job description states: "This is supervisory, skilled firefighting work in directing the activities of a fire company in firefighting and in the maintenance of station, apparatus, and equipment." Captains are selected for this position by competitive examination under the civil service system.
Fire marshall appears to be an equivalent rank to captain. The fire marshall has three areas of responsibility, fire inspection, fire prevention, and fire investigation. This position is also filled by civil service examination. There are no firefighters assigned to the fire marshall, but the fire marshall may request the use of men from other work if they are needed and available. The principal skills of the fire marshall relate to inspection and detection rather than firefighting. The fire marshall spends approximately three hours per day in the station, the rest away from the station performing his duties. He has a separate budget for accounting purposes.
Fire lieutenants take over when the Captain is not present, but when a Captain is present the fire lieutenant is basically a firefighter. Although he may be assigned additional duties from time to time, his principal responsibility is to act in the absence of a captain.
3. Analysis of the legal issues presented. Section 48-810 (as amended by LB 15) states that "All industrial disputes involving governmental service...shall be settled by invoking the jurisdiction of the Court of Industrial Relations...." "Governmental service means all services performed under the employment by any municipality. Section 48-801(2) (as amended by LB 15).
Section 7 of LB 15 provides: "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. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of grievances arising thereunder; Provided, that any such agreements with the State of Nebraska or any agency thereof shall cover a biennial period coinciding with the biennial budgeting period of the state and shall be subject to approval by the Legislature."
"Employer" is defined in section 48-801(4) to mean "any municipal corporation." Section 48-801(5) states "Employee shall include any person employed by any employer as defined in sections 48-801 to 48-823."
There are no specific statutory guidelines as to how the Court should approach the settlement of this industrial dispute. The statutory rules set out in sections 48-816 and 48-818 (as amended by LB 15) do not appear to be applicable to the settlement of this case and the parties have not contended that any of the language in those sections should directly affect the disposition of this case.
Section 48-823, unchanged by the 1969 legislative amendments, provides that: "The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of sections 48-801 to 48-823 are hereby granted to and conferred upon the court herein created."
Lacking express direction in the resolution of the present industrial dispute, it is necessary, therefore, to effectuate the public policy of section 48-802 and to carry into effect the provisions of sections 48-801 to 48-823.
Two considerations appear to predominate in applying the public policy of section 48-802 to this industrial dispute and in carrying out the other provisions in the Court of Industrial Relations statutes. These are (1) the public interest in insuring the continuous operational efficiency of governmental services as enunciated in section 48-802; and (2) the fundamental purpose of the amendments effected through LB 15 to provide a means for collective agreements in which the interests of both the municipal employer and its employees are adequately represented.
Much of the argument of the parties advanced in connection with determining which persons should properly be within the employee unit was based upon the definition of "supervisor" under section 2(11) of the National Labor Relations act and interpretations of that term by the National Labor Relations Board and various courts. These authorities are relevant and informative but are not controlling in a decision under the Nebraska statutes. In this respect, it would be noted that the original federal statutes in 1935 did not make a supervisory distinction but the 1947 amendments added the present requirements of sections 2(3), 2(11) and 14(a). The Nebraska statutes have substantial differences from the National Labor Relations act, in the language, policy, and the basic mechanics of operation, apart from the mere absence of statutory provisions relating to "supervisors." We do not, therefore, consider that the federal determinations as to who is a "supervisor" are controlling in our decision. For the same reasons, the decisions of other states are relevant and informative but not controlling because of statutory differences. the Wisconsin statute (section 111.02(3) refers to "nonexecutive or nonsupervisory capacity" (see In re Milwaukee Fire Fighters Assn., Local 215 , (No. 6476, WERB, August 30, 1963); Michigan has a statute specifically stating that "no person subordinate to a fire commission, fire commissioner, safety director, or other similar administrator, shall be deemed to be a supervisor" (section 423.213); and the Association does not contend that the Massachusetts and Washington cases appended to its Hearing brief were decided in circumstances identical to the present Nebraska statutes.
While we do not rely upon a "supervisor" distinction, as such, to resolve the present industrial dispute, we do find it necessary to properly align the fire captains, fire marshal and fire lieutenants to carry out the purposes and provisions of the Nebraska statutes. We recognize the importance of avoiding "divided loyalties," if possible, insofar as both the management of the operations and the conduct of the collective negotiations are concerned. In aligning the fire captains, fire marshal and fire lieutenants so as to settle this industrial dispute, we regard as the principal factors: (1) the public interest in insuring the continuous operational efficiency of governmental services as enunciated in section 48-802; and (2) the fundamental purpose of the amendments effected through LB 15 to provide a means for collective agreements in which the interest of both the municipal employer and its employees are adequately represented.
4. Alignment of captains, fire marshal, and lieutenants.
From the evidence in the entire record, we find that the fire captains and fire marshal should be excluded from the employee unit and that the fire lieutenants should be included as a part of the employee unit. We find that such an alignment will best carry out the policies and purposes of the applicable Nebraska statutes.
The fire captain is the principal officer in charge of the men, facilities and equipment. His normal and primary duties are those of being in charge of firefighting for the City. He evaluates the performance of the persons serving under him, provides the necessary supervision, and makes recommendations on personnel and budgetary items to the chief and city administrator.
We have considered the desires of the fire captains to be members of the employee unit as well as the desires of the other firefighters to have the captains as members of the employee unit. While the captains have had a long history of active participation in the Association, including effective representation as officers and committeemen of the Association,the City and the Association are now entering into a period of formal collective bargaining in which we conclude that the interests of all concerned will be best served by a determination that fire captains are, for the purposes of collective bargaining activities (and the related election), properly representatives of the City employer rather than a part of the employee unit. That the City's firemen work and live together as a homogeneous unit may be a reason for defining the fire captains as an employer representative, both with respect to insuring the continuity of operations and with respect to maintaining that the interest of the municipal employer and its employees are adequately represented at the bargaining table.
We regard the fire marshal as the equivalent of the fire captains, and, indeed, the parties would seem to have done so by the comparative pay and status within the fire department organization. The responsibilities of the fire marshal in inspection, prevention, and investigations and the absence of responsibilities relating to firefighting, also lead us to conclude that the interests of the Nebraska statutes will be best served by excluding the fire marshal from the employee unit.
The lieutenants do not have the continuous responsibilities of the captains, but act only in the absence of the captains. The principal duties of the lieutenants are as firefighters but with added responsibilities when the captain is not present. We conclude that the interest of the Nebraska statutes will be best served by including the fire lieutenants in the employee unit.
NOW THEREFORE IT IS ORDERED, ADJUDGED, DECREED, AND DETERMINED that the fire captains and the fire marshal should be excluded from the employee unit of the fire department of the City of Fremont, Nebraska, with respect to any election which may be held to determine an employee organization to negotiate collectively with the City and with respect to any collective negotiations with the City; and that fire lieutenants be included as a part of the employee unit of the fire department of the City of Fremont, Nebraska, with respect to any election which may be held to determine an employee organization to negotiate collectively with the City.