City of Evanston v. State Labor Relations Bd.

• Decision Date: 30 March 1992
• Docket Number: AFL-CIO-CL,No. 1-89-2629,R,1-89-2629
• Parties: , 169 Ill.Dec. 928 CITY OF EVANSTON, Petitioner-Appellant, v. STATE LABOR RELATIONS BOARD and Evanston Fire Fighters Association Local 742, International Association of Fire Fighters,espondents-Appellees. First District, First Division
• Court: United States Appellate Court of Illinois

Page 415

592 N.E.2d 415

227 Ill.App.3d 955, 169 Ill.Dec. 928

CITY OF EVANSTON, Petitioner-Appellant, v. STATE LABOR RELATIONS BOARD and Evanston Fire Fighters Association Local 742, International Association of Fire Fighters, AFL-CIO-CLC Respondents-Appellees.

No. 1-89-2629.

Appellate Court of Illinois,

First District, First Division.

March 30, 1992.

Seyfarth, Shaw, Fairweather & Geraldson, Chicago (John T. Weise, Sigismund L. Sapinski, Jr., of counsel), for petitioner-appellant.

Cornfield & Feldman, Chicago (J. Dale Berry, of counsel), for respondent-appellee Evanston Fire Fighters Assoc. Local 742.

Neil F. Hartigan, Atty. Gen., State of Ill., Robert J. Ruiz, Sol. Gen., Chicago (Robert G. Toews, Asst. Atty. Gen., of counsel), for respondent-appellee Illinois State Labor Relations Bd.

Presiding Justice BUCKLEY delivered the opinion of the court:

On July 20, 1988, the Evanston Fire Fighters Association 742, International Association of Fire Fighters, AFL-CIO-CLC (the Union) filed a unit clarification petition with the Illinois State Labor Relations Board (the Board) pursuant to section 1210.70 of the Board's rules and regulations (see 80 Ill.Admin.Code § 1210.70 (1991)). The petition sought a clarification as to whether certain Assistant Fire Chief and Division Chief positions within the City of Evanston's (the City) Fire Department should properly be included within an existing historical collective bargaining unit.

The Board held hearings on the petition before a hearing officer who recommended upon their termination that the contested positions be included within the bargaining unit. The Board subsequently adopted the decision of the hearing officer, and the City thereafter timely filed this petition for administrative review. We affirm.

The City, with a population of 74,000, has a council-manager form of government with a city manager as the chief administrative officer. The City has approximately 30 departments including a fire department. Each department head reports to the city manager; the department head for the fire department is the Fire Chief.

There are approximately 108 sworn personnel in the City's fire department located across five fire stations. These personnel presently embrace the following six job classifications within the City's civil service system: Fire Chief, Deputy Chief, Division Chief, Assistant Fire Chief, Fire Captain and Fire Fighter. Since 1970, the Union has historically represented in formal collective bargaining the classifications of Fire Fighter and Fire Captain. These classifications are covered by the City's formal civil service system and receive protection under it concerning matters of discipline, suspension, termination and promotion. On the other hand, the various "Chief" classifications above Captain have never been within the bargaining unit, receive no civil service protection, and serve at the will of the city manager.

When the parties' first collective bargaining agreement began in 1970, there were five Assistant Fire Chiefs within the Department, including one "Assistant Chief-Fire Prevention," one "Assistant Chief-Training Officer," and three "Assistant Chief-Shift Commanders." In 1979, a number of changes occurred with respect to the Assistant Chief positions. One Assistant Chief-Shift Commander retired, and the other two shift commanders were relieved of duty and given administrative responsibilities previously performed by the Fire Chief. Pursuant to City ordinance, the shift commander duties were then assigned to three bargaining unit Captains, and a fourth Captain received medical officer responsibilities. All Captains receiving the new responsibilities signed a "temporary duty agreement" in which they recognized the temporary nature of the assignment. As consideration, the City unilaterally paid, in addition to salary, a $365 per month stipend to the Captains. As required by ordinance, the City renewed these temporary duty assignments each year from 1981 until 1987.

Significantly, by accepting the assignment, the Captains lost the protections afforded by the civil service system and the collective bargaining agreement with respect to the new assignments; however, the Captains always retained their civil service classification of Captain and their membership within the bargaining unit.

In November 1987, the City appointed a new Fire Chief, Raymond Brooks. Brooks undertook to reorganize the fire department and decided that the shift commander and medical officer responsibilities should be realigned with management. To achieve this goal, three "Assistant Fire Chief-Shift" (AFC-S) positions were "created," filled and assigned all the shift commander responsibilities previously performed by the bargaining unit Captains. Next, a "Division Chief-Emergency Medical Services" (DC-EMS) position was "created," filled and assigned all the medical officer responsibilities. Finally, the two remaining Assistant Fire Chief positions were renamed Division Chief-Training and Operations and Division Chief-Fire Prevention, but their duties remained the same.

In December 1987, the union filed a grievance pursuant to the parties' collective bargaining agreement. The grievance alleged, in part, that the City violated the contract by creating the four new Chief positions (three AFC-S and one DC-EMS) and designating them as non-unit positions when the bargaining unit had historically included the Captains who had performed the functions of the new Chiefs. The grievance was processed up to the arbitration stage and a hearing was scheduled for July 27, 1988. The Union then requested that the arbitration be postponed pending the outcome of its July 20, 1988, unit clarification petition. This request was granted.

As with the grievance, the unit clarification petition sought a clarification that the historical bargaining unit should include the three AFC-S and one DC-EMS. The Union asserted that the individuals in these positions have responsibilities that were previously performed by bargaining unit Captains and, consequently, the bargaining unit should be clarified to include these positions.

A hearing on the unit clarification petition was held in late 1988 before a hearing officer. Evidence produced at the hearing reflected the above facts as well as the following duties and responsibilities of the positions in question: ^*

Captain-Shift Commanders

The Department provides two basic functions, fire suppression and emergency medical services. The majority of Fire Fighters and Fire Captains perform functions related to fire suppression. When they are not engaged in the actual fighting of a fire or responding to an emergency, fire suppression personnel participate in routine housekeeping and equipment checking duties, as well as in previously scheduled training exercises and inspection programs.

Most non-emergency activities were developed and scheduled in advance by the various Assistant Chiefs and the Deputy Chief. The Captain-Shift Commanders (Shift Commanders) supervise the routine housekeeping and equipment checks and conduct the training and inspection programs. In addition, they prepare training records and inspection reports. The Shift Commanders were primarily responsible for ensuring that both routine and scheduled activities were carried out in accordance with Department procedures and directives. Shift Commanders could and did temporarily suspend and reschedule projects in exigent circumstances, such as cleaning up after a fire or inclement weather.

Shift Commanders were responsible for most matters relating to staffing and scheduling the personnel on their shifts. Although minimum manning levels were set by the Fire Chief, the Shift Commanders were responsible for the daily monitoring of attendance and manpower shortages. They had independent authority to call in off-duty personnel, hire back personnel from the previous shift or run the shift below minimum. The Shift Commanders assigned Fire Fighters and Fire Captains to the various pieces of apparatus and designated a Fire Fighter to act as company officer if a Captain was absent. The Shift Commanders made recommendations regarding shift transfers. They in addition approved duty trades and short day requests for members of their shifts.

The Shift Commanders did not participate in the housekeeping, training and inspection duties with the Captains and Fire Fighters. Instead, they spent a majority of their day going around to each station to pick up and deliver reports and correspondence, to meet with Captains, the Deputy Chief and the various Assistant Chiefs, to work on special projects and complete routine paperwork. They also took part in staff meetings, attended by the various Chiefs. During the meetings, the staff would discuss a broad range of topics, including new training and inspection programs and proposed changes in Department rules and regulations. The Shift Commanders considered themselves part of the management structure and an integral part of the decision-making process. However, like regular Captains and Fire Fighters, the Shift Commanders worked 24-hour shifts.

The Shift Commanders had certain authority to discipline the Fire Captains on their shifts. They issued oral and written reprimands and recommended suspensions for violations of Department rules. The Shift Commanders computed annual written performance evaluations for the Captains and evaluated, along with the Deputy Chief, Fire Fighters who applied to become Captains. The Shift Commanders also researched new equipment purchases and recommended specific requests to be incorporated into the Department's budget by the Deputy Chief, who is the chief budget officer.

The Shift Commanders' role in an emergency response was to assume command at the scene of a fire. They rarely were involved in the actual physical activities associated with fire fighting such as hose line, rescue, ventilation and salvage operations....