STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKSONVILLE FRATERNAL ORDER OF ) FIRE OFFICERS, )

)

Petitioner, )

) JACKSONVILLE ASSOCIATION OF FIRE )

FIGHTERS, LOCAL NO. 1834, ) CASE NO. 75-1078

) 75-1160

Petitioner, ) PERC CASE NO. 8HRC-756-1022

) PERC CASE NO. 8HRC-756-1169

and )

) CITY OF JACKSONVILLE, FLORIDA, )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on September 3 and 4, 1975 at Jacksonville, Florida. Since much of the same testimony was applicable to both Petitions, the hearings were consolidated, and a joint report will be submitted.

APPEARANCES:

For Public Employer: Donald R. Hazouri, Esquire

and Donald Romanello, Esquire 1300 City Hall

Jacksonville, Florida

For Petitioner: Lacy Mahon, Jr. (Association of 350 East Adams Street

Fire Fighters) Jacksonville, Florida

For Petitioner: Robert V. Palmer, (Fraternal Order of 1003 Blackstone Building

Fire Officers) Jacksonville, Florida

By its petition, the Jacksonville Fraternal Order of Fire Officers seeks a certificate of representative as the exclusive bargaining agent for the lieutenants and captains of the Jacksonville Fire Department. By its petition, the Jacksonville Association of Fire Fighters Local number 1834 seeks a certificate of representative as the exclusive bargaining agents for fire fighting personnel in the City of Jacksonville including privates, lieutenants, and captains. Exhibit 1, Petition of Fraternal Order of Fire Officers; Exhibit 2, Affidavit of Compliance for Registration of the Fraternal Order of Fire Officers; and Exhibit 3, Affidavit of Compliance for required showing of interest for Fraternal order of Fire Officer were admitted into evidence without objection. Exhibit 4, Petition of Jacksonville Association of Fire Fighters

Local number 1834; Exhibit 5, Affidavit of Compliance of Registration of Local number 1834; and Exhibit 6, Affidavit of Compliance for the Required Showing of Interest of 1834 were admitted into evidence without objection. Thereafter the parties stipulated that the city is the public employer, and that the Fraternal Order of Fire Officers and Local number 1834 are employee organization as defined by Chapter 447, Florida Statutes.

Initially the city took the position that privates only should be in the union, and that lieutenants and captains are managerial employees and cannot join any union. However, during the subsequent testimony the city vacillated somewhat from this position and conceded that lieutenants and captains could be in a union, but should not be in it with the other fire fighters who hold rank of privates.

Local number 1834's position is that all fire fighting personnel up to and including captains should be in the same bargaining unit. The position of the Fraternal Order of Fire Officers is that lieutenants and captains are supervisory personnel and there is a conflict of interest between these officers being represented by the same bargaining unit that represents rank and file firemen, viz. privates.

The Jacksonville Fire Department is composed of approximately 625 privates, and 175 lieutenants and captains. This is in addition to the battalion chiefs, deputy chiefs, assistant chiefs, and persons in the categories that are not in dispute in this proceeding. historically the Fraternal Order of Firemen was a fraternal order similar to the Masonic Lodge. When legislation was enacted authorizing labor organizations to bargain for fire fighters, some of these fraternal orders became unions. At the time of consolidation of Jacksonville and Duval County into a consolidated government, negotiations respecting the pay of city and county firemen were carried out between the city and the Fraternal Order of Firemen. In 1969 the International Association of Fire Fighters won an election to represent the fire fighters of Jacksonville as their sole bargaining agent in lieu of the Fraternal Order of Firemen. Article 27 of the City Charter of the City of Jacksonville provided that supervisory personnel could not be in the firemen union. This article was subsequently declared unconstitutional.

Chapter 447.22, Florida Statutes, enacted in 1972 defined "fire fighter" as full-time, permanently employed, classified member of any fire department or fire fighting unit of any municipality, etc. Excluded therefrom was "any individual having authority in the interest of the public employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees; or any individual who has as one of his major

responsibilities, the direction of other employees, the adjustment of grievances or the recommendation of such action, or the evaluation of their performance.

Thus supervisory personnel were prohibited from being in the unit with the firemen. In an action brought in the Circuit Court of the 4th Judicial Circuit by Local number 1834 against the City of Jacksonville, the court reviewed s.

447.22, Florida Statutes, above noted, and found that lieutenants and captains of the fire division of the city of Jacksonville are "supervisory employees" rather than "fire fighters" within the intent and meaning of Chapter 447.22, Florida Statutes. A copy of this final judgment is included as Exhibit 11.

Subsequent to that decision, the city has negotiated with the fire officers, but has never entered into any formal agreement with any of the fire fighting personnel of the City of Jacksonville other than Local number 1834.

Since the only disputed issues in this case is with respect to lieutenants and captains, the testimony and the evidence hereinafter summarized will relate solely to those two positions. Jacksonville Fire Department, like most fire

departments throughout the United States, is formed on quasi-military lines. Jacksonville has some 42 stations, of which 25 have single pieces of equipment. Those stations with only single pieces of equipment would normally have only one company assigned to that station. A company is commanded by a captain, has two lieutenants and usually 8 or 9 privates. Accordingly each shift is commanded by a captain or a lieutenant who has 2 to 3 privates on the shift with him. These people stand a 24-hour duty period and are off for 48-hours. The officer in charge of the shift is called the company officer. Upon arrival at a fire, the senior man assumes charge; if a lieutenant is in charge of the first shift to arrive at the scene, he would assume charge of the fire, and would be relieved by the next senior officer who appeared. Normally a battalion fire chief will rise to each and every fire, and will assume command upon his arrival.

As company officers the lieutenants and captains have authority to transfer men from their shifts. They do this by submitting a transfer request to the deputy chief in charge of personnel. These requests are almost invariably honored by the approving authority. Accordingly, the company officer, be he lieutenant or captain, makes recommendations which are effective in accomplishing the transfer from his shift. Company Officers also have the authority to suspend a man from duty. Such suspension may last up to three days.

As with many municipalities, Jacksonville's Public Employees are protected by a very strong Civil Service Board. This board prepares and administers examinations for promotion, approves job descriptions of various positions, establishes eligibility lists for promotions, and reviews all disciplinary actions which are appealed to the board. As a result. of Civil Service rules and regulations periodic evaluation reports on personnel in the Fire Department are not submitted for permanent employees. Supervisors do submit reports on temporary employees, i.e., those that are serving the first six months of an initial appointment, or serving the first six months after being promoted to a higher position.

Lieutenants and captains consider themselves to be the first step of the grievance procedures. Leave requests from personnel under them are routed through them and if they disapprove the request, the leave is usually disapproved by the officer with the authority to grant leave. Since the granting authority must find replacement personnel for those taking leave, the reverse of the concept may not necessarily be so, i.e., that if the lieutenant or captain approves one of his men's requests for leave, the approving authority will automatically grant same. In addition, the company officers (lieutenants and captains) recommend people in their group for promotion to the grade of engineer. This is a position that makes higher pay than private, but is not considered to be a promotion in the sense that another rank is established. In these situations the recommendation of the company officer is almost invariably followed by the person having the authority to advance the recommended individual to the position of engineer.

Several lieutenants and captains testified with respect to their authority and to their responsibilities. All consider themselves to be supervisory personnel. They issue orders to the people below them, and expect that those orders will be followed without question. All are addressed by their title, or their rank they are not called by their first names, or sir names, by the people under them. Several witnesses attested to the well known concept that it is easier to maintain discipline if a certain barrier is maintained between the supervisor and the worker. On the other hand, at times the officers will pitch in to help clean up the station, particularly when there are only three men

present. Both the company officer and private would do the same type work at the scene of a fire, although the former is in charge.

Two-days of training are established each week. One day is devoted to training scheduled by the training school to be followed by the shift during their training. On the second day the training is than established by the company officer for his unit.

Many of the lieutenants and captains who testified foresee a conflict if they were in the same union with the firemen. In the event of grievances involving an officer and a private, the officers are unsure who the union would support if both were represented by the same employee organization.

The President of Local number 1834 testified there was very little difference between the duties performed by firemen and officers. When questioned why the lieutenant and captain receive more pay for the same length of service than did the private, his response was a vague "leadership responsibilities". Accordingly, it would appear that any differences in salaries between captains, lieutenants, and privates would be considered by him to be minimal. He recognizes that the officers have certain reports to make, and this is the basic difference, other than the general concept of leadership, that he sees between officers and privates.

Since all city employees work under the policy guidelines of the Civil Service Board, many of the benefits that apply to privates in the fire department also apply to all city employees including the chiefs and deputy chiefs of the fire department. Some of these include the same holidays and the same number of vacation days. Many work the same hours although the firemen on shifts work a 56-hour week which includes their 24-hour duty day at the station, part of which is consumed in sleep. Other employees work a 40 hour week. The lieutenants and capains in the fire department have little input into the budget and would not be expected to participate in collective bargaining agreements or negotiations. However, they would be in the initial stages of the grievances and the carrying out of the collective bargaining agreement once the contract had been negotiated.

In addition to the normal combat fire fighting duties that are associated with fire departments, the Jacksonville Fire Department has, in addition to the fire prevention bureau which conducts the inspections of various buildings under the jurisdiction of the fire marshall, two other operating divisions. These are the Rescue Division and the Quick Response Division. The Rescue Division is composed of units which contain an officer and a private, both medically trained. Four of these units are assigned to hospitals and the remaining 7 or 8 are scattered throughout the fire stations. They proceed to most of the fires and to practically all of the automobile accidents in the City of Jacksonville. At the scene of an injury the senior Emergency Medical Technician (E.M.T.) present at the scene is, by law, in charge of all emergency medical treatment and medical services rendered at the scene of the accicent unless relieved by a qualified doctor. The Quick Response Unit is another type of emergency squad that proceeds to the scene of accidents with special equipment to effect rescues.

All members of the Jacksonville Fire Department have many interest in common. They are engaged in a hazardous occupation and they are covered by the same medical benefits, leave benefits, retirement benefits, and other basic social type benefits that are common to the entire Department. On the other hand, certain members of the department are required to issue the orders, and to

provide the leadership, supervision, and management that is necessary for the department to function effectively. In carrying out functions either managerial or supervisory in nature, the officers in the fire department take actions that could result in conflicts between them and the privates who are represented by a union. While it is recognized that the commission has, in another cases, certified one union as the exclusive bargaining agent for one unit comprised of lieutenants and captains and a second unit comprised of all other lower ranking members of the Fire Department, this practice appears to be less than ideal. If a conflict of interest requires the people to be placed in separate units the same conflict would appear to require them to be represented by different unions. A Biblical adage to describe this situation is that a man cannot serve two masters. This is also illustrated in the legal profession by the code of ethics proscribing the same law firm, albeit two separate lawers handling the cases, from representing both plaintiff and defendent in the same action.

In accordance with 447.009(3)(a), Florida Statutes, no recommendations are submitted.

ENTERED this 6th day of October, 1975, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001078

Orders for Case No: 75-001078