Firefighters of Brattleboro, Vt., Local No. 2628 v. Brattleboro Fire Dept.

• Decision Date: 13 May 1980
• Docket Number: 284-78,Nos. 238-78,s. 238-78
• Citation: 415 A.2d 243,138 Vt. 347
• Parties: , 107 L.R.R.M. (BNA) 2566 FIREFIGHTERS OF BRATTLEBORO, VERMONT, LOCAL # 2628. v. BRATTLEBORO FIRE DEPARTMENT, Town of Brattleboro.
• Court: Vermont Supreme Court

Page 243

415 A.2d 243

138 Vt. 347, 107 L.R.R.M. (BNA) 2566

FIREFIGHTERS OF BRATTLEBORO, VERMONT, LOCAL # 2628. v. BRATTLEBORO FIRE DEPARTMENT, Town of Brattleboro.

Nos. 238-78, 284-78.

Supreme Court of Vermont.

May 13, 1980.

Alan P. Biederman, Rutland, for plaintiff.

John S. Burgess, Brattleboro, for defendant.

Before DALEY, BILLINGS and HILL, JJ., SMITH, J. (Ret.), and HAYES, Superior Judge, Specially Assigned.

HAYES, Superior Judge.

Pursuant to 3 V.S.A. § 1003, the Brattleboro Fire Department and Town of Brattleboro (hereinafter Town) appeal from an order of the Vermont Labor Relations Board, dated August 21, 1978, certifying that the appropriate bargaining unit for the Brattleboro Fire Department includes all its members, except the fire chief and deputy fire chief (supervisory positions), a secretary (confidential position), and one firefighter (probationary position). The only issue in this appeal is whether a fire captain of the Brattleboro Fire Department is a "municipal employee," 21 V.S.A. § 1722(12), and, therefore, includible as part of the appropriate bargaining unit.

The Town below, and on appeal, has contended that the four fire captains of the Brattleboro Fire Department are "supervisors," and specifically exempted by statute from inclusion in the bargaining unit. Under 21 V.S.A. § 1722(12), only "employees" are properly includible in a bargaining unit, which provision combines with 21 V.S.A. § 1722(12)(B) to exclude from the bargaining unit any "individuals employed as supervisors."

To resolve this issue we look to 21 V.S.A. § 1502(13) which defines a "supervisor" as (A)n individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.

This statutory definition of "supervisor" is identical to the National Labor Relations Act's definition, 29 U.S.C. § 152(11), and is largely a determination of fact "in which the Board (N.L.R.B.) is afforded a large measure of informed discretion." NLRB v. Hoerner-Waldorf Corp., 525 F.2d 805, 808 (8th Cir. 1975). The Vermont Labor Relations Board is afforded similar discretion in applying the statutory definition of a "supervisor" to the instant facts. Its decision will not be overturned unless shown to be clearly erroneous. In re McMahon, 136 Vt. 512, 514, 394 A.2d 1136, 1138 (1978).

In its findings below, the Board concluded, inter alia, that these four fire captains were nonsupervisory municipal employees, included within the bargaining unit, as they: did not make policy decisions and exercised little discretion; performed, in general, the same duties as firefighters; only directed firefighting in the absence of a superior officer; and did not hire, transfer, lay off, recall, promote, discharge, assign or reward, or effectively recommend the same. The Board's findings are supported by the record, and we affirm.

The Town, in basing its appeal on claimed factual errors below, must overcome, by clear and convincing evidence, the strong presumption that the Board's acts are correct, valid, and reasonable. Cf. In re Devoid, 130 Vt. 141, 148, 287 A.2d 573, 577 (1972) (acts and orders of administrative body, Social Welfare Board, presumed correct). It is not enough for the Town to show that the facts below might lend themselves to a different reading by a different tribunal, as we will not substitute our judgment of the facts for that of a regulatory body. Local No. 300, IBEW v. Burlington Electric Light Department, 133 Vt. 258, 262, 336 A.2d 178, 179 (1975). Moreover, federal cases, which this Court has looked to for guidance in this area, In re Southwestern Vermont Education Association, 136 Vt. 490, 492, 396 A.2d 123, 124 (1978), indicate a great reluctance on the part of federal courts to disturb the findings of the N.L.R.B. unless there existed no evidence to support them. See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Doctors' Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973).

In its brief, the Town cites several of the enumerated criteria in the definition of "supervisor," 21 V.S.A. § 1502 (13), and claims error in the Board not finding the existence of any of these claimed "supervisory" acts by the fire captains. It is noteworthy that this statutory definition of "supervisor" is in the disjunctive. Thus, if any one of enumerated supervisory acts is present, the individual (fire captain) would come within the definition of a "supervisor," and not be eligible for membership in the bargaining unit. NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970).

The Town argues that the four fire captains have direct authority to discipline, suspend, or lay off a firefighter based on a fire captain's testimony that they (fire captains), by an agreement with the Chief, "can suspend a guy for one day and he (the Chief) will back us." After reviewing the contradictory testimony, the Board found, and we believe correctly, that this authority was extremely limited (sending a man home who is unfit for duty), and no one who testified could recall an incident when it was exercised. Moreover, this power is subject to review by the Chief with final approval coming from the Town Manager.

The statutory test is whether or not an individual can effectively exercise the authority granted him; theoretical or paper power will not make one a supervisor. Food Store Employees Local 347, A. M. C. & B. W. v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969). In the instant case, the fire captains can not effectively exercise supervisory authority for purposes of discipline. They only act as a supervisor when they are the superior...