City of Des Moines v. Public Employment Relations Bd.

• Decision Date: 22 March 1978
• Docket Number: LOCAL,AFL-CI,No. 2-60089,2-60089
• Citation: 264 N.W.2d 324
• Parties: 98 L.R.R.M. (BNA) 2593 CITY OF DES MOINES, Iowa, a Municipal Corporation, Appellee, v. PUBLIC EMPLOYMENT RELATIONS BOARD, an agency of the State of Iowa, Respondent, v. DES MOINES ASSOCIATION OF PROFESSIONAL FIREFIGHTERSNO. 4, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 324

264 N.W.2d 324

98 L.R.R.M. (BNA) 2593

CITY OF DES MOINES, Iowa, a Municipal Corporation, Appellee, v. PUBLIC EMPLOYMENT RELATIONS BOARD, an agency of the State of Iowa, Respondent, v. DES MOINES ASSOCIATION OF PROFESSIONAL FIREFIGHTERS AFL-CIO, LOCAL NO. 4, Intervenor-Appellant.

No. 2-60089.

Supreme Court of Iowa.

March 22, 1978.

Harry H. Smith of Smith & Smith, Sioux City, for intervenor-appellant.

John R. Phillips and Russell L. Samson, Des Moines, for appellee.

Considered en banc.

McCORMICK, Justice.

This is an appeal by intervenor Des Moines Association of Professional Firefighters AFL-CIO, Local No. 4, from a district court judgment ordering modification of a Public Employment Relations Board (PER Board) decision. The PER Board ruled that line captains and lieutenants in the Des Moines fire department are not excluded from the public employee bargaining unit as supervisory employees under Code § 20.4(2). Petitioner City of Des Moines obtained review of this decision in district court pursuant to Code § 17A.19. The trial court held the PER Board decision is not supported by substantial evidence and entered judgment requiring the PER Board to modify its decision by excluding the captains and lieutenants from the bargaining unit. Upon intervenor's appeal, we reverse the trial court.

We have separately decided City of Davenport v. Public Employment Relations Board, Iowa, 264 N.W.2d 307 (filed this date). Principles of review and applicable legal principles are discussed in that case. The sole question here is whether the PER Board decision ascribing nonsupervisory status to Des Moines fire department line captains and lieutenants is supported by substantial evidence.

Intervenor initiated an action before the PER Board in August 1975 to obtain a bargaining unit determination. Evidence was received before a hearing officer in a contested proceeding in October 1975, and in February 1976 the hearing officer issued his findings of fact, conclusions of law and recommended decision. The City appealed to the PER Board pursuant to § 17A.15(3), The Code. One of the three Board members recused himself from hearing the appeal. The remaining two members affirmed the hearing officer, although one of them issued a separate opinion expressing the view that captains and lieutenants who serve as station commanders are supervisory employees.

In relevant part, the findings of fact of the hearing officer are as follows:

The Des Moines Fire Department employs approximately 323 persons, excluding the clerical staff. The department consists of the chief, the assistant to the chief, 10 district chiefs, 22 captains, 39 lieutenants, one maintenance superintendent, one fire marshal, and approximately 248 other persons in admitted non-supervisory ranks. The fire department is one of 12 major departments of the City of Des Moines which are under the direct control of the city manager. The department is responsible for the fire protection of the approximately 65 square miles and over 200,000 persons constituting the City of Des Moines.

The department may be divided into five functional units: administration, consisting of the chief, assistant to the chief, and four dispatchers; maintenance, consisting of the maintenance superintendent and four equipment mechanics; training, consisting of the training officer (who is a district chief), and one captain; fire prevention, consisting of the fire marshal, two senior fire inspectors, and six fire inspectors; and the fire suppression unit, consisting of the remaining department personnel. The training, maintenance, and fire prevention units are staff units which report directly to the administration unit.

The fire suppression unit performs the line functions of the department and is organized into three geographical districts. Two of these districts contain three fire stations while the third district contains four stations. The fire suppression unit operates in three shifts (technically called divisions) of 24 hours each. Each shift of each district is headed by a district chief, and each shift of each station is headed by either a captain or lieutenant depending on the number of companies assigned to the station. A company is made up of a piece of equipment, e. g. a ladder truck, the man assigned to it and the company officer who may be either a captain or a lieutenant. Lieutenants are station commanders in stations comprised of a single company while captains are station commanders at stations of more than one company.

The activities of the fire stations may be divided into four categories: training, house duties, inspections and fire fighting. The responsibilities of captains and lieutenants who are station commanders are identical, except for the number of men and pieces of equipment under their jurisdiction. Lieutenants in stations under the command of captains are not responsible for the operation of the station as a whole, but are responsible for the operation of their company. Such lieutenants do not have the responsibility to assign house work, maintain the station journal, or perform other duties which are the responsibility of the station commander.

Fire fighting activities of the department fall into two general categories: "still" alarms which are generally non-structural fires such as automobile or brush fires; and "regular" alarms, which involve fires in structures such as houses, apartments, or commercial buildings. If the fire is, in a large structure or of a serious nature, additional alarms may be sounded resulting in the assignment of more men and equipment to the fire.

A still alarm fire is generally fought by a single company unless the company officer requests additional help. Many still alarms in Des Moines are fought by "attack wagons", modified pickup trucks manned by an engineer and a fire fighter (but not a company officer). A regular alarm fire is always responded to by at least two companies and a district chief.

The district chief often arrives first on the fire scene and almost never more than three to five minutes after arrival of the first company. The district chief is in charge of the operation of all companies at the scene, and under his general supervision, company officers instruct their men where to apply water or use smoke ejectors or other such tactical matters. Company officers testified that their decisions were instinctive, based upon their long tenure in the department and extensive training in fire fighting techniques.

In addition to their command at the fire scene, district chiefs are responsible for the activities of the stations within their district. District chiefs are the highest ranking officers on 24 hour duty. They have the authority to transfer men from station to station within their district as personnel needs dictate. They have the final authority to approve "trading time" requests by all personnel within their district. The district chiefs also participate in command staff meetings called by the chief at irregular intervals to formulate departmental policy and the vacation schedule. Absences from all stations must be reported to them by the company commanders. District chiefs, in conjunction with the training officer, approve requests by the company officers to deviate from predetermined training schedules. Only district chiefs have the authority to grant employees sick leave or other forms of emergency leave.

A station commander or "officer in charge" is the highest ranking officer assigned to a station. Single company stations are commanded by a lieutenant; multi-company stations are commanded by a captain. Where the station commander is a captain, the other company is headed by a lieutenant. Station commanders and company officers are responsible for a number of reports describing the station and company activities including inspection reports, brush fire reports, automobile fire reports, and others. Station commanders also keep the station log in which all events of the day are recorded.

Station commanders are responsible for overseeing the house duties at the station. This includes the general custodial work necessary to maintain the stations in a clean and orderly condition. While station commanders may assign these house duties to the men in any manner, the men are generally allowed to pick their duties by seniority.

Company officers are responsible for conducting company training sessions and inspections. The training schedule is determined by the training officer and company officers have no authority to deviate from the schedule without the approval of their respective district chief who in turn contacts the training officer. Training sessions conform with the instructions of the chief, the training officer, and department training manuals. Inspection procedures are highly standardized by departmental policies.

Company officers have no authority to hire, transfer, suspend, lay-off, recall, promote, discharge or reward other employees. Company officers do have some authority in the areas of discipline, adjustment of grievances, and recommendations to their superior officers.

The authority of company officers to discipline other employees of the department is limited to oral warnings. For example, company officers have the authority to require a subordinate to correct house work to meet the required standards. More significant disciplinary measures must be sought by "pressing charges" against the subordinate, who also has the right to press charges against a superior officer. The record in this case does not provide any examples of differences in the way a charge originated by a non-officer and an officer would be handled by the chief. The chief testified that he had a practice of investigating disciplinary problems before taking action on them. One officer testified that he had assigned a man to kitchen duties at the headquarters as "punishment" for his activities. The company officer in ...