Borough of Pottstown v. Pennsylvania Labor Relations Bd.
| Decision Date | 01 April 1998 |
| Citation | 710 A.2d 641 |
| Parties | BOROUGH OF POTTSTOWN, Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Thomas G. Sevodidio, Philadelphia, for petitioner.
Elizabeth Kelly, Harrisburg, for respondent.
Ralph J. Teti, Philadelphia, for intervenor.
Before PELLEGRINI and LEADBETTER, JJ., and JIULIANTE, Senior Judge.
The Borough of Pottstown (Pottstown or Borough) appeals a final order of the Pennsylvania Labor Relations Board (PLRB) finding that Pottstown engaged in an unfair labor practice by discharging Robert Weidensaul (Weidensaul) in violation of Sections 6(1)(a) and (c) of the Pennsylvania Labor Relations Act (PLRA) 1 as read with the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10 ("Act 111").
At the core of this case is the relationship between Pottstown and Philadelphia Steam Fire Engine Co. No. 1 (Philadelphia Volunteers). Philadelphia Volunteers is one of four volunteer fire companies in Pottstown. 2 Each is an independently incorporated nonprofit organization created to fight fires in Pottstown and operates under its own by-laws and internal operating procedures. Each has an independent management structure and is governed by a board of engineers, duly appointed by the president 3 and a company chief. Elected by the volunteer fire company membership to a four-year term, each company chief is responsible for the day-to-day operations of the volunteer fire company and the conduct of its members, but consults with the company president in making any disciplinary decisions. Under its by-laws, the company chief is responsible for promulgating standard operating procedures for each volunteer fire company and participates in the hiring, evaluation and firing of any volunteer fire company employee. During the period in question, Joe Groff was Philadelphia Volunteers' company chief. While Philadelphia Volunteers, as does the other three volunteer fire companies, fights fires with volunteer members, it also employs three paid drivers to drive the fire trucks to fire scenes as well as performing janitorial duties at the fire company station.
Surprisingly, there is very little law governing the relationship between volunteer fire companies and local municipalities that they were created to serve. Perhaps the most exhaustive treatment of that relationship is set forth in Zern v. Muldoon, 101 Pa.Cmwlth. 258, 516 A.2d 799 (1986), where this court set forth a short history of that relationship. In Zern, we quoted from Commonwealth v. Barker, 211 Pa. 610, 61 A. 253 (1905), where our Supreme Court upheld annual appropriations to volunteer fire fighting associations, even though they were private organizations, and characterized the relationship as follows:
The protection of the city from fire is a municipal function of the highest importance, and as said in the case just cited 'a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men.' At the time of the passage of the ordinance the city had no paid fire department and the appellant association was performing that part of the city's municipal functions. The fact that it was doing so voluntarily did not make it any the less eligible for appointment as the city's agent in that regard.
Barker at 614, 61 A. at 254. (citation omitted) (emphasis added). To become a city's agent to fight fires in a particular municipality is dependent upon designation by the local municipality as the volunteer fire company authorized to fight fire within its geographical confines. See Lacey Park Volunteer Fire Company No. 1 v. Board of Supervisors of Pottstown has designated Philadelphia Volunteers and three other volunteer fire companies as composing its fire department (Pottstown Code, § 254) and exercises regulatory control over them through the Pottstown Code. 5 See also The Borough Code, Act of February 1, 1966, P.L. (1965), as amended, 53 P.S. §§ 45101-48501. Under the Pottstown Code, the borough fire chief, a part-time employee of Pottstown, supervises and directs the volunteer fire companies fire fighting capabilities. (Pottstown Code § 255). He assigns each fire company its duties and may dismiss any fire company when its services to Pottstown are no longer necessary. (Pottstown Code § 262(1)). The borough fire chief can establish and effectuate "policy, rules and regulations, practices and procedures" required to operate the Pottstown fire department. (Pottstown Code § 262(2)). The borough fire chief may also suspend any member of the fire department, i.e., any member of a volunteer fire company, for insubordination at a fire. (Pottstown Code § 262(3)).
Warminster Township, 27 Pa.Cmwlth. 54, 365 A.2d 880 (1976). 4
While the borough fire chief has overall supervisory responsibilities for controlling the four volunteer fire companies, the Pottstown Code designates each of the volunteer fire company chiefs as an assistant borough fire chief. (Pottstown Code § 258). An assistant borough fire chief, when the borough fire chief is absent and only if most senior, is to coordinate fire fighting activities at the scene of a fire. Each assistant borough fire chief receives compensation "as the Borough Council shall from time to time determine to be paid semiannually from the Borough Treasury." (Pottstown Code § 260).
When the paid drivers decided to unionize, because of this intertwined relationship, even though paid drivers were hired and fired by the volunteer fire companies, the PLRB held that Pottstown and Philadelphia Volunteers were joint employers over the paid drivers for collective bargaining purposes. 6 Because volunteer fire companies are private entities and not within jurisdiction of the PLRB, this dispute involves under what circumstances is Pottstown responsible for unfair labor practices committed by Philadelphia Volunteers, its joint employer.
This question was presented to the PLRB as a result of an unfair labor practice filed by Local 3536 of the International Association of Firefighters (Local 3536) involving the termination Following the filing of the FLSA lawsuit, Weidensaul was involved in the following incidents:
of Weidensaul. Since June 1987, Philadelphia Volunteers employed Weidensaul as a paid driver. In 1990, he began having discussions with other volunteer fire company employees concerning unionization of their work force under Local 3536. By 1993, Weidensaul had become more active in encouraging unionization of the paid drivers by soliciting signatures for union authorization cards and attending meetings to advocate unionization. Partly as a result of Weidensaul's efforts, Local 3536 filed for and was granted certification as the exclusive bargaining representative for all full-time and regular part-time paid fire officers and firefighters of Pottstown. 7 In January 1995, unrelated to his union activities, Weidensaul, along with six other drivers, filed a federal lawsuit against three of the four fire companies 8 alleging that the fire companies had failed to compensate their drivers for certain overtime pay in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA)
January 17, 1995
The Philadelphia Volunteers president posted a memorandum on the fire station bulletin board alerting Philadelphia Volunteers that a FLSA suit had been filed and Weidensaul was a named plaintiff. The memorandum stated that Weidensaul was jeopardizing his job and that all members should express their feelings about the FLSA suit to Weidensaul at a February 2, 1995 meeting.
February 8, 1995
Weidensaul failed to timely respond to a fire radio call and arrived at the scene of a gas leak fire late. His discipline was suspension for one 24-hour shift.
May 26, 1995
Weidensaul responded to a fire call and damaged a stop sign while maneuvering down a narrow street but failed to report the incident in violation of Philadelphia Volunteers' policy. When questioned, he denied running over the sign. His discipline was suspension for two 24-hour shifts.
February 8-9, 1996
In an attempt to catch an employee who was stealing liquor from the Philadelphia Volunteers bar, Weidensaul was captured on videotape appropriating 2-liters of soda, some candy bars and several quarters from the Children's Christmas Fund collection jar.
On February 12, 1996, as a result of his theft, the board of engineers and the company chief terminated Weidensaul. 9
January 17, 1995
The Philadelphia Volunteers' president's memorandum posting and subsequent conduct was anti-union animus because a named plaintiff pursuing a FLSA lawsuit is a protected union activity under Triangle Tool and Engineering, 226 NLRB 1354, 94 LLRM 1108 (1978) and Apollo Tire Co., Inc., 236 NLRB 1627, 99 LLRM 1138 (1978), enf'd, 604 F.2d 1180 (9th Cir.1979).
Because Weidensaul arrived to the scene of the gas leak late, and did not fail to show up at all, as characterized by Philadelphia Volunteers, Weidensaul's discipline was an overreaction to and exaggeration of the incident....
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