Borough of Emmaus v. Pa. Labor Relations Bd.
| Decision Date | 13 March 2017 |
| Docket Number | No. 1847 C.D. 2014,1847 C.D. 2014 |
| Citation | 156 A.3d 384 |
| Parties | BOROUGH OF EMMAUS, Petitioner v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent |
| Court | Pennsylvania Commonwealth Court |
Thomas H. Dinkelacker, Orefield, for petitioner.
Warren R. Mowery, Jr., Harrisburg, for respondent.
Matthew D. Areman, Philadelphia, for intervenor Pennsylvania Professional Firefighters Association.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE McCULLOUGH
The Borough of Emmaus (Borough) petitions for review from the September 16, 2014 final order of the Pennsylvania Labor Relations Board (Board), which dismissed the Borough's exceptions to the hearing examiner's June 3, 2014 order certifying the Pennsylvania Professional Fire Fighters Association (Association) as the exclusive representative of all full-time and regular part-time firefighters of the Borough's Fire Department (Fire Department) under the act commonly referred to as Act 111.1
In this case, the Fire Department was previously considered—or at least believed—to be a "volunteer" fire department that operated independent of the Borough. However, the Borough's Council passed an ordinance that paid its firefighters an hourly wage and structured the Fire Department in such a manner that the firefighters were placed under the authoritative and direct control of the Borough Council and/or its supervisory agents. As a result of these measures, the firefighters instituted proceedings under Act 111, and the Board concluded that an employer-employee relationship existed between the Fire Department and the Borough; therefore, the firefighters were authorized by statute to unionize, and, with the Association's representation, engage in collective bargaining with the Borough. Discerning neither error nor abuse of discretion in the Board's decision, we will affirm.
Background
On October 24, 2013, the Association filed a petition seeking to represent a unit of full-time and regular part-time firefighters employed by the Borough. At a hearing before a Board hearing examiner on January 9, 2014, the parties stipulated that the only issue to be decided "is whether the petitioned-for fire fighters are employed by the Borough." (Board's Findings of Fact (F.F.) at No. 3.)2 The hearing examiner made the following findings of fact.
The Borough is a public employer and a political subdivision pursuant to Act 111 and the Pennsylvania Labor Relations Act (PLRA).3 The Fire Department is a non-profit corporation incorporated by the Borough. The Borough owns the Fire Department building, most of the Fire Department equipment, and the firefighters' training facility. (F.F. at Nos. 1, 5, 8.)
In 1999, the Borough adopted Ordinance No. 887 (Ordinance) "to effectuate the 'Establishment of the Fire Department ... comprised of vehicles, equipment, and volunteers from the pre-existing Fire Department of the Borough ... and any additional equipment or manpower which may be specified by Borough Council.' " (F.F. at Nos. 5–6 (quoting Ordinance).) The Ordinance also established various officer positions, including Fire Chief, Assistant Fire Chief, Deputy Fire Chief, Captain, Lieutenant, and Engineer. The Ordinance states that the Borough Council shall appoint those officers, who " 'shall serve as at-will employees and appointees.' " (F.F. at 6 (quoting Ordinance).) The Borough retained the right to adopt rules, regulations, and standard operating procedures, which are binding on the Fire Department and its firefighters; however, the Fire Chief has the right to issue standing orders and a Standard Operating Procedure Manual to direct firefighting activities. The Ordinance also "designates the Borough Council as the entity which sets salaries and compensation for [the] firefighters, after consideration of any recommendation which the Fire Chief may provide." (F.F. at No. 7.)
The Fire Department does not pay for its operations, equipment, or personnel because the Borough directly pays for those items from its Fire Department budget. The Fire Department obtains fuel for fire trucks and equipment directly from the Borough garage at no cost. The Borough's budget contained "38 line items for the Fire Department, totaling $513,016 in actual expenditures in 2012 and a 2013 budgeted amount of $448,158." (F.F. at No. 11.) Pursuant to Borough regulations, no one at the Fire Department, including the Fire Chief, is authorized to make expenditures greater than $500.00 without first obtaining the Borough's permission. (F.F. at Nos. 10–11.)
The Fire Department is managed by two Borough employees, the Fire Chief and the Borough Secretary. The Borough Secretary "runs the day-to-day operations, including the scheduling of fire fighters on a monthly calendar" and also exercises discretion in assigning firefighters to specific shifts. (F.F. at 12.) The firefighters perform various activities during their assigned shifts, such as responding to fire calls, maintaining the fire station, and training. When the firefighters arrive at work, they are required to punch in and out with a time-card system so that the Borough Secretary may track their hours. When a firefighter is unable to work a scheduled shift, he or she must find a replacement. During their scheduled shifts, the firefighters are not permitted to leave the fire station to conduct personal errands. Based on the firefighters' timesheets, the Borough issues monthly paychecks directly to the firefighters and withholds taxes from their paychecks. The firefighters also receive W–2 tax forms from the Borough at the end of each year. The firefighters are paid an hourly rate and may receive overtime if it is authorized by the Fire Chief or Assistant Fire Chief. If overtime is not authorized, a firefighter must punch out and continue to work his or her shift as a volunteer without pay. In 2012, the wage rate for the firefighters ranged from $10.00 per hour to $15.00 per hour. The Borough Council "has the power to set and approve the hourly rates." (F.F. at Nos. 13–15, 18.)
A person interested in becoming a firefighter for the Fire Department must complete an application, which is reviewed by the Fire Chief but "then must be approved by the Borough." (F.F. at No. 20.) "The Borough Council regularly reviews the [Fire] Chief's recommendations for the hiring of fire fighters." (Id. ) Although the Fire Chief is responsible for disciplining firefighters, the Borough has the final say over disciplinary matters. A firefighter who is unhappy with the Fire Chief's disciplinary decision "may appeal the decision to the Borough Manager." (F.F. at No. 21.) In one instance, the Fire Chief terminated a firefighter; however, the termination letter directed the firefighter to the Borough Manager regarding questions about the discipline, and the Borough Manager attended the firefighter's termination meeting. The Borough Manager has the power to discipline members of the Fire Department for violating the Borough policies. (F.F. at No. 22.)
In 2011, all firefighters received the Borough's Personnel Policy, which "is a compilation of Borough policies ranging from hiring to drug and alcohol to personnel files, signed by the Borough Council President." (F.F. at No. 23.) The Personnel Policy also states that it "does not alter the 'at-will presumption of employment.' " (Id. (quoting Personnel Policy).) All firefighters were required to sign a form acknowledging receipt of the policy and return it to the Borough Manager. The firefighters also received the Borough's Non–Union Employees Light–Duty Policy and were required to provide a form acknowledging its receipt to the Borough Manager. (F.F. at No. 24.) In December 2013, the Borough issued the firefighters a memorandum with their paychecks regarding the local services tax; the memorandum stated that it was directed to all "[Part–Time] Employees." (F.F. at No. 25.)
The Fire Department's Standard Operating Guidelines (Guidelines) "defer to and rely on the personnel policies and regulations set forth by the Borough." (F.F. at No. 26.) For example, the Guidelines allow the Borough to perform background checks on all firefighters. The officers of the Fire Department are required to submit annual budget requests to the Fire Chief and the Borough Secretary, who then provide the requests to the Borough Council. Although the Borough Council tries to give deference to the requests, it often rejects them due to "deficits and other safety concerns." (F.F. at Nos. 26, 28.)
The Fire Chief "is in charge at a fire and gives directives to the individual fire fighters in their daily operations." (F.F. at No. 30.) The Fire Chief has disciplined firefighters for various offenses, including insubordination. The Fire Chief terminated a firefighter in February 2011, without obtaining approval from anyone, and also suspended a firefighter in October 2011. (F.F. at No. 29.)
By order dated April 11, 2014, the hearing examiner determined that the firefighters are employees of the Borough, rather than volunteers, because they receive an hourly wage in exchange for their services. Because the Borough exercises control over the firefighters and has the ultimate say over disciplinary and hiring matters, the hearing examiner also determined that an employment relationship exists between the Borough and the firefighters under Act 111. Thereafter, on June 3, 2014, the hearing examiner issued an order certifying the Association as the exclusive representative of all full-time and regular part-time firefighters of the Fire Department.
On June 23, 2014, the Borough filed exceptions to the June 3, 2014 order, arguing that some of the hearing examiner's factual findings were not supported by substantial evidence and the hearing examiner erred in concluding that the...
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