STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COCOA FIREFIGHTERS ASSOCIATION ) LOCAL NO. 2416, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1233

) PERC NO. 8H-RC-756-1176

CITY OF COCOA, )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to section 447.099(3)(a), Florida Statutes, and Rule 8H-316, Florida Public Employees Relations Commission (PERC), a public hearing was held by the undersigned hearing Officer in the above matter on August 29, 1975 at Cocoa, Florida. Notice of Hearing was issued to the parties on August 6, 1975, in accordance with Rule 8H-3.17.

APPEARANCES

Joseph R. Moss, Esquire MOSS and HOLCOMB

Post Office Box 1907 Cocoa, Florida 32922

J. R. King, Esquire Post Office Box 1750 Cocoa, Florida 32922

By petition to PERC, dated June 24, 1975, petitioner seeks a Certificate of Representation as the exclusive bargaining agent for all personnel in the Cocoa Fire Department excluding the Chief of the Department. Both parties stipulated that the Cocoa firefighters Association Local No. 2416, affiliated with the International Association of Firefighters, is an employee organization as defined in Section 447.002(10), Florida Statutes, and that the City of Cocoa is a Public Employer within the meaning of Section 447.002, Florida Statutes. This stipulation was accepted by the Hearing Officer. It was further stipulated by the parties that Petitioner requested in writing to the Public Employer recognition as as a bargaining agent on May 12, 1975, and that the Public Employer had not accepted the request. The stipulation was accepted by the hearing officer. Formal documents accompanying the file are. Exhibit 1, the petition; Exhibit 2, Notice of Hearing; Exhibit 3, Affidavit of Compliance for Registration of Employee Organization; and Exhibit 4, Affidavit of Compliance for Required Showing of Interest, were admitted into evidence, without objection, by the Hearing Officer.

Accordingly, the sole issue to be considered at the hearing was the appropriate bargaining unit of public employees under the provisions of Section 447.009, Florida Statutes, and PERC Rule 8H-3.01.

During the course of the hearing, the Public Employer presented one witness, the Chief of the fire department and Petitioner presented three witnesses.

It was stipulated by the parties that the secretary to the Chief and any other city personnel, other than firefighters and officers of the department, would not be included in the proposed bargaining unit. The stipulation was accepted by the hearing officer.

Upon inquiry by the hearing officer, the Public Employer stated its position that lieutenants and captains should not be included in the proposed bargaining unit because they were managerial employees.

FINDINGS OF FACT

1. The Cocoa Fire Department consists of 32 employees including a Chief, 3 captains, 3 lieutenants, 24 firefighters, and a secretary to the chief. All personnel except the Chief and the secretary are on three shifts of 24 hours on duty and 48 hours off duty. During each shift, a captain is in charge and the second in command is a lieutenant. Ten employees are on each shift and are located at either Station 1 or Station 2. Normally, at Station 1 there is a captain and a maximum of 7 firefighters. At Station 2, there is normally a lieutenant and 1 firefighter. The bulk of the firefighting equipment is located at Station 1, which includes 2 pumpers, a rescue truck, and an aerial truck. Station 2 is a residential station at which two pumpers are located. The shift or duty-captain is in charge of both stations and normally goes to fires handled by Station 2 unless they are of a minor nature. The Department averages about 3 runs a day, either for fires or on rescue calls. The bulk of their activity is rescue operations which are attended normally by two firemen. However, these calls can be handled by an officer and one firefighter if the officer is an emergency medical technician.

   
   

2. The employees of the fire department and the city of Cocoa entered into an agreement on March 12, 1974, concerning their relationship (Exhibit 11). The agreement states that it is to provide, where not otherwise mandated by statute or ordinance, for the salary structure, fringe benefits, and conditions of employment of the firemen covered by the agreement. This agreement in Article 1C is referred to as a collective bargaining agreement and deals with those matters that customarily would be included in such a document. Although it does not specifically mention specific classifications of fire department employees as being included thereunder except by the term "employees of the City of Cocoa Fire Department", in the first paragraph of the agreement, Article 16, dealing with wages, lists the titles of recruit firemen, fire lieutenant and fire captain and their pay plan with annual step increments. Accordingly, it is concluded that the intent of the agreement was to cover all employees of the fire department other than the Chief and his secretary. The agreement generally provides uniform provisions applicable to all members of the department concerning transfer rights, time off for jury duty, provision of counsel for defense of civil actions, overtime pay, education leave, bereavement leave, sick leave, holidays, vacations based on time with the department, uniform maintenance, terminations and wages. There is no distinction by rank other than by years of service drawn as to different classifications of personnel. Testimony presented at the hearing established that the majority of captains and lieutenants participated on the side of labor in discussions leading to the agreement and that they presently desire to be included in the proposed bargaining unit under consideration. It further established that the agreement

   was formulated because the employees wanted financial conditions applicable to them spelled out clearly rather than remain in the existing city pay plan which was not as specific as desired. The firemen viewed their situation as differing from that of other city employees because of the nature of their functions and the shift work involving extended hours on duty. In the agreement, they were provided certain benefits that other city employees do not enjoy, some of which were requested by the group and some of which were voluntarily offered by the city.

   
   

3. The department is governed by rules and regulations proposed by the Chief and approved by the public employer which include provisions that the department operates in paramilitary fashion with a chain of command extending from the Chief through the duty captain, duty lieutenant and senior firemen to the remainder of the employees. It also indicates that insubordination will not be tolerated with penalties of verbal reprimand, permanent written reprimand, suspension, loss of pay and termination. They further provide that violations of the rules, regulations, directives, and memos, generally should be' handled by the captain or duty officer of the shift, but that if, in his opinion, the violation warrants further action he should give the Chief a written statement of the facts. It states that the captain or duty officer of the shift will be held accountable by the Chief to run the shift in accordance with the rules and regulations of the department, and that violations will consist of penalties including verbal reprimand by the captain or duty officer, permanent written reprimand by the captain or duty officer, written reprimand by the Chief, suspension without pay by the Chief, or termination by order of the Chief (Exhibit 12). In this connection, testimony at the hearing established that the hiring, firing and suspending of employees by the Chief must be approved by the city manager.

   
   

4. As to discipline, minor infractions are taken by a lieutenant to the captain and, depending on the severity of the matter, the captain is authorized to handle it himself. This includes minor infractions, with sanctions of oral or written reprimands, or recommendations for suspension or other adverse actions.

   
   

5. The budget of the department is submitted by the Chief to the city manager for approval. Ultimate approval is given by the city counsel. Although the Chief inquires of the captains as to the need for and condition of the department equipment, they are not consulted as to actual preparation of the proposed budget. The Chief holds staff meetings approximately monthly whenever he deems it necessary. Normally, these are attended by himself, the captains, and lieutenants. At the meetings, personnel problems, operations and training matters, and current programs are discussed with input from the officers. However, all major policy decisions are formulated by the Chief.

   
   

6. The job descriptions and duties performed by the officers and men of the department are as follows:

Captains - The official job description for this position (Exhibit 8) describes the major function of a fire captain as being responsible supervisory work in directing the activities in fire fighting and in the maintenance of fire department property and equipment. It provides that the first captain at the scene of a fire has complete charge of all operations until the arrival of an officer of superior rank. It further provides that under departmental general regulations, a captain may be assigned as a company officer and has direct responsibility for discipline and the proper maintenance of apparatus, equipment, and the station. His duties may include training functions or

supervising a special activity or unit within the department. As illustrative duties, he assumes complete charge of the station and the fire company on route to alarms and at the scene of the fire until the arrival of a superior officer. He directs the work of the firefighters in house duties, testing and maintaining equipment, and inspecting the station house grounds and apparatus. He acts as the department training officer and may conduct company drills or instruction periods. He conducts roll call, inspects personnel and maintains discipline, and transmits order and information to the men.

Testimony at the hearing established that each of the shift captains would assume command of the fire department in the absence of the Chief. When the Chief is present, the captain in charge of the shift acts as his assistant and has total command of both fire stations, subject to the approval of the Chief. Captains can set vacation schedules of the men and also change them. He can give time off in an emergency situation and makes effective recommendations concerning bereavement leave. To move a man from one shift to another, the captain would be obliged to consult the Chief. If an employee reported in sick, he notifies the captain who then, if the department is understaffed, calls in off-duty personnel for overtime work, using an established list which must be exhausted in fairness to all.

A captain performs combat roles and responds on the department trucks or will proceed in a rescue vehicle or pickup truck to the scene of the fire or rescue operation. He works the same hours as the other men and receives the same sick leave, vacation, and overtime pay. Occasionally, he will perform maintenance and housekeeping duties voluntarily at the station. He normally goes to the suppression of fires handled by Station 2 unless they are of a minor nature.

LIEUTENANTS - The job description for this position provides that a lieutenant has direct command over firemen in a fire company on an assigned shift, subject to general regulations of the department and the direction of a superior officer. In the absence of the captain, the lieutenant assumes his duties and responsibilities and is responsible for the discipline of the men on his shift and the maintenance of apparatus and equipment at a fire station. At a fire, he is responsible for the effective combatting of the fire until relieved of command by a superior fire officer. H enters burning buildings with his men to direct their work, and at major fires he is under the command of the superior officer. Illustrative duties are responding to fire alarms that are within an assigned district, driving apparatus or directing the route to be taken to the fire and determine what equipment and apparatus are necessary. He makes decisions as to the best methods of extinguishing fires and directs the use of equipment until relieved of command by a Superior officer. He supervises the laying of hose lines, directing of water streams, placing of ladders, ventilation of buildings, rescuing of persons and placing of salvage covers. He conducts company drills and instruction periods as directed by his superior officer. He sees that all station equipment is returned to the proper place after a fire has been extinguished and that the equipment is in good working order at all times. He supervises the cleaning of quarters, equipment and apparatus at the fire house, conducts roll call, inspects personnel and maintains discipline, and transmits orders and information to men (Exhibit 9).

Testimony at the hearing establishes that the lieutenants are in charge of Station 2 during shift at which there is himself and one firefighter. A1though he is not required to perform maintenance and housekeeping duties, the lieutenants usually help to clean hoses and to keep the quarters clean because of limited manpower and because that has been the practice in the past. On

unusual occasions, a lieutenant might exercise disciplinary power with respect to the one firefighter at Station 2, or under circumstances where he is in charge of a shift in the absence of a captain. If a man came in late for duty, the lieutenant could handle it himself or report to the Chief. He has little or no meaningful participation in personnel matters dealing with promotion, suspension, hiring or firing of employees. If he is on a rescue call, he is not necessarily in charge of the operation. The individual who is not driving is the one who is in charge, and rescue operations are a team endeavor. A lieutenant is interchangeable with a firefighter and his activities vary depending on the situation. Sometimes he serves as a hydrant man, sometimes on the truck, and overall performs essentially the same firefighting functions as that of the firefighters.

FIREFIGHTER - The job description provides that this is general duty work in the prevention of fire damage and that, although the work involves combatting, extinguishing and preventing fires, and operation of equipment, a large part of the time is spent in study and in cleaning fire department equipment, apparatus, and quarters. Work is performed by a member of a team and a superior officer is usually available to assign definite duties. The standard firefighting duties are set forth in the job description (Exhibit 10).

1. Testimony at the hearing established that the firefighter looks upon the captain as his primary supervisor, although he acknowledges the lieutenant to be his superior officer.

   
   

2. The duties of officers and men of the department have not changed since the inception of the collective bargaining agreement.

   
   

   DISCUSSION

   
   

3. It is clear from the physical location and duties of personnel of the Cocoa Fire department that the shift captains are looked upon as Supervisors by the men and in fact perform supervisory functions in the way of directing operations, enforcing work rules, imposing disciplinary sanctions in minor manners, and assuming command of the department in the absence of the Chief. They do not have the power to exercise independent action in major personnel matters, but they do make effective recommendations concerning discipline, suspension, and other adverse action affecting subordinate personnel. Though the history of employee relations within the organization as evidenced by the existing bargaining agreement shows their inclusion in the bargaining unit and the majority of the captains (two out of three) have expressed their desire to continue in this status, it is not considered conducive to the efficient administration of government or compatible with the responsibilities of the fire department to represent the public, to permit the continuation of this practice. These employees for all practical purposes are the day-to-day operational heads of the department and, during their shifts, are in immediate command of the department subject to the overall supervision of the Chief when he is present. In this capacity, they are required to make immediate decisions concerning responses to fire and rescue calls and for taking independent action at those times when the Chief is not present. These actions can mean the difference between life and death and require unquestioned obedience from subordinate personnel similar to that required in a military organization. Retention of the Captains in a bargaining unit which includes the subordinate officers and firefighters who are charged with carrying out their orders is incompatible with the public interest and could cause definite conflicts of interest.

4. The lieutenants, on the other hand, although nominally in charge of a fire station, whose duties are viewed officially as supervisory in nature, in fact perform virtually the same functions as the firefighters and work interchangeably with these men in the performance of duties. Station No. 2 is manned by a shift of one lieutenant and only one firefighter. Accordingly, the supervisory functions are of a minimal nature and at any fire of significance the captain would be present to direct operations. Due to their normal geographical separation from the bulk of the personnel, the lieutenants, in effect, are divorced from any meaningful actions with regard to personnel and disciplinary matters and would seldom be called upon to take charge of the department. Their continued inclusion in a bargaining unit with the firefighters would not appear to be incompatible with the public interest or to create a conflict of interest to a significant degree.

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

ENTERED this 20th day of October, 1975, in Tallahassee Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph R. Moss, Esquire MOSS and HOLCOMB

P.O. Box 1906

Cocoa, Florida 32922

J. R. King, Esquire

P.O. Box 1750

Cocoa, Florida 32922

Docket for Case No: 75-001233

Orders for Case No: 75-001233