4 CIR 103 (1979)


LOCAL 1575, | REP. CASE NO. 104
Plaintiff, |
Defendant. |


For the Plaintiff:Mr. Hal Bauer

For the Defendant:Mr. William Harding

Before:Judges Kratz, Wall, & McGinley


The principal issue in this case is the scope of the appropriate collective bargaining unit. The Plaintiff contends it should consist of all full time paid fire fighters of the Defendant (hereinafter called paid fire fighters), while Defendant argues that it should also include the volunteer fire fighters (hereinafter called volunteers). If it is the former, Plaintiff has a sufficient showing of interest for this Commission to order an election, but if the volunteers are included, the Petition for Election must be dismissed.

There are 12 paid fire fighters[1] and approximately 70 volunteers. Ten of the twelve paid fire firefighters have authorized the Plaintiff to represent them in collective bargaining with the Defendant. None of the volunteers have agreed to such an authorization.

The Columbus Fire Suppression and Ambulance System works like this: the 12 paid fire fighters are considered full-time employees, though most of them have other part-time jobs because of their unusual hours of employment. They are employed 56 hours a week, with altemating 24 hour shifts; they work ordinarily in 4-man crews; they man the fire station; and they live, eat, and sleep at the station during their shift. To supplement these paid fire fighters, the Defendant also has a volunteer group of firemen. The volunteers have full-time employment elsewhere, but are available when needed for fire suppression and ambulance service. Only when there is a general alarm are all volunteers required to report for duty, and this occurs infrequently.[2] They are, however, called to duty when a fire call is determined to be a "tone out". About 75% of the fire calls are "tone out", but normally only 7 or 8 of the volunteers will report for a tone out fire. About 85% of the ambulance calls are handled exclusively by the paid fire fighters.

The volunteer fire department of Columbus appears to be organized as much for social purposes as for fire suppression. It has its own constitution and bylaws, each of its 4 crews has regular monthly meetings, and it regularly sponsors dances and parties.[3] It also keeps a keg of beer in the fire station, which is available to its members at all times, and this strange arrangement apparently constitutes part of the compensation by the Defendant to the volunteers for their fire suppression services.[4] The compensation for the volunteers, including the beer, comes in the form of a budgeted amount from the Defendant based on "past performance to the city". The 1979-80 (August to August) budget is $23,641, which is used by the volunteers in any way they see fit. Other than the constant keg of beer, the volunteers apparently use the money for dances, awards, dinners, conventions, and a club room.

The Chief of the Columbus Fire Department and the Fire Instructor are elected by the volunteers. They are volunteer firemen, but receive a small remuneration. The Assistant Chief is a paid fire fighter. There are four companies among the volunteers. The men in each company (17, except for the driver unit which has 20) select captains, junior captains, and lieutenants. The Chief, the Company Captains, and the other crew officers actually supervise the paid fire fighters when they are present at a fire. The paid fire fighters normally arrive first at the fire and the shift leader[5] is in command until one of the volunteer officers arrives at the scene. Unlike the volunteers, the paid fire fighters are required to take a civil service exam, appear before the Civil Service Board, and are appointed and discharged by the City of Columbus.

The basic question for our consideration is whether there is sufficient mutuality of interest between the paid fire fighters and volunteers to place them in the same collective bargaining unit. We conclude there is not.

Section 48-838 (2) says as follows:

"(2) The election shall be conducted by one member of the court who shall be designated to act in such capacity by the presiding judge of the court, or the court may appoint the clerk of the district court of the county in which the principal office of the employer is located to conduct the election in accordance with the rules and regulations established by the court. The court shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination the court shall consider established bargaining units and established policies of the employer. It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate. "

Defendant argues that this statute requires that the volunteers be included in the unit or otherwise a unit of employees of less than departmental size will be established. The object of the last sentence of the statute, of course, is to avoid fragmented units, and this Commission, even without this statutory instruction, has strong feelings against fragmented units. See IBEWLocal No. 1221 v. State of Nebraska, Nebraska Educational Television Comm. and Board of Regents , 3 CIR 23 (1975); Metro Tech Education Assn. v. Metro Tech Community College , 3 CIR 141 (1976); Plattsmouth Police Dept. Committee v. City of Plattsmouth , 3 CIR 234 (1977); In Re: South Sioux City Municipal Electricians Association , 3 CIR 318 (1977); Retail and Professional Employees Union v. Nebraska Youth Development Center Kearney , 3 CIR 400 (1978); and State Colleges Education Association and Chadron State Teaching Faculty v. Board of Trustees , 3 CIR 607 (1978).

Section 48-838 (2), however, was not intended to force employees together in the same bargaining unit when they have no common interests. It establishes only a presumption, is directed specifically to governmental subdivisions, and applies to "employees". We conclude that this statute does not require us to join the paid fire fighters and the volunteers in the same collective bargaining unit.

Defendant also contends that Section 48-816, Neb. Rev. Stat., 1979 Supplement, which says as follows, has application to this case:

"48-816. . . . All firemen and policemen employed in the fire department or police department of any municipal corporation in a position or classification subordinate to the chief of the department and his immediate assistant or assistants holding authority subordinate only to the chief, shall be presumed to have a community of interest and may be included in a single negotiating unit represented by an employee organization for the purposes of this act. Public employers shall be required to recognize an employee's negotiating unit composed of firemen and policemen holding positions or classifications subordinate to the chief of the fire department or police department and his immediate assistant or assistants holding authority subordinate only to the chief when such negotiating unit is designated or elected by employees in the unit . . . "

The purpose of this statute is to establish the scope of fire and police collective bargaining units only with regard to the level of supervision to be included and excluded, and it doesn't, therefore, apply to the issue in this case.

In City of Grand Island vs. American Federation of State , County, & Municipal Employees , 186 Neb. 711, 185 N. W. 2d 860, Judge Boslaugh agreed that decisions of the National Labor Relations Act were helpful, but not controlling, in the decisions of the Courts of Industrial Relations, and he then applied the NLRB criteria for determining the appropriate bargaining unit, as follows:

"In determining what is an appropriate bargaining unit under the federal law, consideration has been given to the mutuality of interest in wages, hours, and working conditions; the duties and skills of the employees; the extent of union organization among the employees; and the desires of the employees. See Continental Baking Co. v. Bakers Negotiating Group , 99 NLRB 777; 48 Am. Juris. 2nd, Labor, Labor & Labor Relations, Sec. 446, Page 325; Labor Relations CCH Volume 2, pp. 2605, page 6706."

It is difficult to discern a mutuality of interest in wages, hours, and working conditions between the volunteers and the paid fire fighters. One group is paid a regular monthly wage, and the other is compensated by dinners, dances, and a constant keg of

beer. Their hours of work are different. The paid fire fighters are on duty at all times. The volunteers are called only in the event of a toned out fire, and then only about 10% of them report. While both groups receive training in fire suppression, the paid fire fighters are more completely trained and are the only members of the Columbus fire fighting unit that can take care of the fire fighting equipment. The working conditions of the two groups are substantially different. One group's work station is the fire hours, where there must be a crew present and available for immediate service at all times. The other group has no permanent work station and appears to spend their time at the fire house only for the purpose of meetings and beer drinking. The paid fire fighters receive a vacation as a part of their conditions of employment, and the volunteers do not. Paid fire fighters receive a clothing allowance, and the volunteers do not. Furthermore, the paid fire fighters receive a pension, funeral leave, sick leave, health, accident and hospitalization insurance, while the volunteers receive none of these fringe benefits. On the other hand, the volunteers working conditions include free beer, parties, dances, and club facilities, while the paid fire fighters are only involved with these benefits if they also join the volunteer organization. Though it is true, and significant, that both groups perform together under similar conditions and circumstances in the event of a fire, this similarity is far outweighed by the many dissimilarities in wages, hours, and working conditions.

The training and skills of the paid fire fighters are different from those of the volunteers. The paid fire fighters are required to take certain courses which are not a requirement for the volunteers. Furthermore, the paid fire fighters are required to pass a civil service exam, while the volunteers are not, and the city personnel rules apply to the paid fire fighters and not to the volunteers.

Regarding the extent of union organization and the desires of the employees, the evidence shows the paid fire fighters desire to be organized and the volunteers do not. By determining that the two groups constitute separate bargaining units, our decision will honor the desires of both.

In American Association of University Professors v. Board of Regents , 198 Neb. 243, 253 N. W. 2d 1, the Nebraska Supreme Court offered some more specific criteria for determining the appropriate bargaining unit. These criteria, some of which are not applicable here because that employer, unlike the instant employer, operated a number of facilities, are prior bargaining history; centralization of management, particularly with regard to labor relations; extent of employee interchange; degree of interdependence of autonomy of the facilities; differences or similarities in skills or functions of the employees; geographical location of the facilities in relation to each other; and possibility of over fragmentation of bargaining units.

There is no prior bargaining history here, but there is some centralization of management among the two groups. Though the chief is in command of all firefighters, general personnel relations (hiring, firing, etc.) is controlled by different agencies, the volunteers by the Board of Fire Control, consisting of its own members[7], and the paid fire fighters by the Mayor and City Council. The evidence shows there is regular interchange between the paid fire fighters, but very little interchange between the volunteers and the paid fire fighters. The degree of interdependence of autonomy of the facilities would seem to be inapplicable, and the differences or similarities in skills or functions has already been discussed. While the geographical location of the facilities has a more prominent application in the Board of Regents case than here, nevertheless one of the significant differences between the groups is that the paid fire fighters have a crew available at all times at the fire station, while the volunteers are scattered about, all in different locations, either where they are employed, or where they live.

Because of the extreme differences between the two groups, we do not consider the possibility of over fragmentation as serious. This is not a situation like you might discover at a university or municipality, where the determination of a small unit within a large department might result in several other smaller units within that same department. At most, the determination that the paid fire fighters are a separate bargaining unit could only result in one other bargaining unit within the Columbus Fire Department. Where the interests, wages, hours, working conditions, duties, and skills of the two groups are as different and diverse as they are under the facts and circumstances of this case, the determination of a separate unit of paid fire fighters is the reasonable and practical determination.

This Court ruled in the Board of Regents case, supra , that the faculties of the college overall and the College of Dentistry and College of Law were entitled to separate bargaining units where the evidence showed that those faculty members had a community of interest separate from other faculty members, in that they have separate buildings, have separate accreditation standards, have different academic calendars, have significant operational independence on a day to day basis, and receive higher salaries and promotions and tenure in a shorter period of time, than do other faculty members of the university. In the instant case, the paid fire fighters and the volunteers, in effect, operate out of separate buildings, have different qualification standards, have different calendars, in that they work substantially different hours, and the paid fire fighters have significant operational independence on a day to day basis, and have an entirely different basis for salaries, promotions, and tenure.

Professor Gorman, referring to the National Labor Relations Board standards for determining appropriate bargaining units, says: "The Board in making its determinations seeks an employee group which is united by community of interest, and which neither embraces employees having a substantial conflict of economic interest nor omits employees sharing a unity of economic interest with other employees in the election or bargaining constituency." Gorman, Labor Law , page 69.

Where is the unity of economic interest between the paid fire fighters and the volunteers? If we determined that they belonged in the same bargaining unit, how could a single representative effectively bargain for the two groups? Paid fire fighters would likely bargain for increased wages, improved hours, sick leave, funeral leave, insurance benefits, vacations, pensions, clothing allowance, etc., while the volunteers would likely bargain only for an increase in the amount the City of Columbus would budget for their unrestricted use. There is no unity of economic interest in this arrangement, and the bargaining interests of the two groups are totally different. In the case of South Sioux City Municipal Electricians Association , Case #175, representation case #52, this court said that "if the interests of the members of a unit were so diverse that performance of this obligation was a practical impossibility, such a variegated unit might well be improper." This proposition would seem to apply, because it would surely be difficult, if not impossible, for a single representative to properly represent in collective bargaining both the paid fire fighters and the volunteers.

We conclude that the paid fire fighters of the City of Columbus constitute an appropriate unit for the purposes of collective bargaining, and it is ordered that an election be conducted by the members of that unit to determine whether or not they wish to be represented in collective bargaining by the Plaintiff. Said election shall be held as soon as reasonably possible. Judge Dean G. Kratz is designated as the court's representative for such election, which shall be held under the immediate supervision of the clerk of this court, Janet Stewart Amold. Janet Stewart Arnold is appointed hearing examiner to determine initially all questions arising during the election process. The parties shall determine a date for a meeting, as soon as possible, with the clerk for the purpose of agreeing upon an election date and determining all questions conceming the procedures for the election.

All panel members join in this opinion and order.

Filed December 18, 1979.

[1]One of these is a supervisor and thus excluded from the proposed unit.

[2]Once during the last year.

[3]The paid fire fighters can belong to this organization, but only three of them do.

[4]That this fringe benefit has caused some problems at the time of a fire alarm comes as no surprise.

[5]There is a shift leader for each of the shifts of paid fire fighters.

[6] A Court then; now a Commission.

[7 Each of the 4 companies select someone to serve on this Board.