STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COCOA BEACH FIREFIGHTERS, )

LOCAL NO. 2185, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1234

) PERC NO. 8H-RC-756-1183

CITY OF COCOA BEACH, )

)

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 28, 1975 at Cocoa Beach, 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

Attorneys at Law 653 Brevard Avenue

Post Office Box 1907 Cocoa, Florida 32922

Walter T. Rose, Jr., Esquire ROSE and WELLER

101 North Atlantic Avenue Cocoa Beach, Florida

By petition to PERC, dated July 8, 1975, as amended by petition dated August 20, 1975, the Petitioner seeks a Certificate of Representation as the exclusive bargaining unit agent for the Cocoa Beach Fire Department personnel of the rank of firefighters, driver-engineers, lieutenants, and any member of the department below the rank of captain assigned to the fire prevention bureau.

The petition reflects that the following members of the fire department would be excluded from the proposed bargaining unit: captains, Chief of the department and his confidential secretary, clerical and all other city employees.

The parties stipulated that the correct name of the Petitioner is that which appears on the petition filed in the case and that the Cocoa Beach Firefighters Local No. 2185, affiliated with the International Association of Firefighters, is an employee organization within the meaning of the Public Employees Relations Act. This situation was accepted by the Hearing Officer. The parties also stipulated that the Public Employer is the City of Cocoa Beach and that it comes within the definition of Section 447.002(2), of the Act. This stipulation also was accepted.

Formal documents accompanying the file, i.e., 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 received in evidence by the Hearing Officer without objection. The amended petition dated August 20, 1975 was admitted into evidence (Exhibit 5), and fourteen additional exhibits.

Petitioner, on June 13, 1975, requested recognition as bargaining agent for the employees in the requested unit and the Public Employer declined recognition on or about June 18, 1975. Petitioner submitted a copy of an undated letter to the City Manager of Cocoa Beach, Florida requesting recognition. A letter from the Public Employer to the Chairman of the Public Employees Relations Commission, dated July 14, 1975, reflects that the Petitioner was orally advised that the City did not agree with the proposed bargaining unit (Exhibit 9).

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

During the course of the hearing the Petitioner called three witnesses and the Public Employer called two.

Upon inquiry by the Hearing Officer, the Public Employer stated its position that it was improper to include lieutenants, members of the fire prevention and inspection bureau, probationary, part-time, and CETA personnel (Comprehensive Employee Trainee Act) in the bargaining unit.

The parties stipulated that an appropriate bargaining unit properly should include firefighters and driver-engineers, and should exclude the Chief of the fire department, captains, the confidential secretary of the Chief, clerical and all other city employees. The stipulation was accepted.

FINDINGS OF FACT

1. Petitioner and the City of Cocoa Beach entered into a collective bargaining agreement on November 1, 1975 which was renewed by agreement of October 1, 1974, to remain in full force and effect until September 30, 1975, with yearly automatic renewal provisions (Exhibit 15). Article II of the agreement provided that all permanent status employees in the classification of firefighters, driver-engineers, lieutenants and any member of the department below the rank of captain assigned to the fire prevention bureau were included in the bargaining unit covered by the agreement. Clerical and other non-uniform employees were excluded. Under Article VII of the agreement, a grievance procedure was established for the employees and uniform promotion policies, holidays, workweek, vacations, overtime work, and off-duty training were established.

   
   

2. The Cocoa Beach fire department consists of 22 employees including a Chief, a captain, seven lieutenants, three driver-engineers, nine firefighters, and a confidential secretary to the Chief. Although the organizational chart (Exhibit 7) - indicates that there is a space for a fire inspector, this position which was formerly occupied by a lieutenant, has been abolished and the Chief now functions in that capacity. Presently, there are no probationary or part-time personnel in the department. The secretary is an employee hired under the Comprehensive Employee Training Act which is a subsidized federal program (CETA).

3. The fire department has two fire stations, one at the city hall and one north of highway 520. These stations are manned in three shifts of 24 hours on duty and 48 hours off. At Station Number 1, the shift consist of a lieutenant, a driver- engineer and a firefighter. At Station 2, a lieutenant and 2 firefighters comprise the shift. A chain of command flows from the shift lieutenant through the captain to the Chief of the department. Most of the work of the department outside of the station is to respond to rescue calls. A much lesser portion of the time is spent answering fire calls. In the station, personnel of the department spend a great deal of time cleaning, training, and maintaining equipment and facilities. There are occasional staff meetings attended by the officers which are not for the purpose of policy formulation, but to explore better ways to conduct operations and to discuss work schedules, training, and status of equipment. These meetings are not mandatory because they are held during off-duty hours and therefore, would require the payment of overtime if mandatory. Hiring of personnel is accomplished in accordance with the Public Employer's merit system policy and all jobs are posted and bid for. Permanent promotion of employees is governed by the provisions of the collective bargaining agreement (Art. 10, Exhibit 15) and requires a certain amount of time in grade and a satisfactory grade on a test. The candidates are then ranked according to their performance, fitness and length of service by the Chief. He solicits evaluation of candidates for permanent status and promotion from the lieutenants.

   
   

4. The nature of the duties performed icy members of the department other than the Chief are as follows:

   
   

   CAPTAIN - He is responsible for the supervision of firefighting situations and maintenance of the department property and equipment. At the scene of a fire department operation he takes command and directs personnel in the performance of their function. He and the Chief work an eight hour day (Ex. 6). In conjunction with the Chief, he establishes work schedules for the department and insures that they are carried out. In conjunction with the Chief, he assists in preparing the budget for submission to the city manager.

   
   

   LIEUTENANTS - The job description for this position (Exhibit 6) states that this is supervisory work in the direction of the activities of a fire company in an assigned shift and that such employees are responsible for the discipline of the men on the shift and for 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. He enters a burning building with his men to direct the work and at major fires he is usually under the command of a superior officer.

   
   

   Testimony of witnesses reveals that lieutenants, although nominally supervisory employees in the sense that they are in charge of their shift and are immediately responsible for seeing that work schedules at the stations are carried out and routine reports are submitted, exercise little or no discretion or independence of judgment in personnel matters, such as hiring, firing, promoting, or suspending subordinate employees. They cannot change shift assignments, grant time off, approve vacations, or authorize sick leave. They do not participate in the budget process and are not required to attend staff meetings, although they render evaluation reports upon subordinates when requested to do so by the captain or Chief or when there is a change from probationary to permanent status. On one occasion, an unsatisfactory evaluation of a subordinate was rejected by the Chief and the lieutenant was required to submit a supplemental evaluation which was satisfactory in nature (Exhibits 12

   and 13). The lieutenants work the same hours as firefighters and, other than salary, receive the same fringe benefits based on seniority. Although they are not required to clean the station facilities and equipment, they do so about half of the time. There has been a remarkable absence of disciplinary problems in the fire department but, on occasion, a lieutenant may orally admonish or reprimand a subordinate for neglect of duty. If a man arrived for duty in an intoxicated condition, a lieutenant normally would refer the matter to the captain for disposition. The lieutenants generally are unfamiliar with grievance procedures and their role in that respect under the collective bargaining agreement, due to the absence of instructions by superiors and the lack of actual grievances presented. At major fires, the lieutenant is in charge of operations until relieved by the captain or the Chief of the fire department. At minor fires, he performs a combat role. One of his assistants operates the truck equipment and one mans the hydrant and then goes to assist the lieutenant in the burning structure. These operations are team efforts where each participant knows his specific duty and there is little need for the exercise of supervision or independent judgment. However, he does make an initial evaluation of the extent of the fire and notifies the station as to whether or not additional assistance is required. Due to the limited equipment of the department, there is little discretion in the manner of fighting the fire. If a dispute arose between the lieutenant and one of his subordinates as to the appropriate method, the lieutenant would make the ultimate decision. On rescue calls, the driver-engineer, who is an emergency medical technician, is in charge of the operation upon his arrival. The duties of the lieutenants have not changed since the date of the bargaining agreement.

   
   

   DRIVER-ENGINEER - This employee works as a specialist and is responsible for the operation of the rescue first aid unit as well as the operation of reel type fire apparatus. He must be an emergency medical technician with knowledge of first aid principles and skill in their application. At fires, he can serve as the hydrant-man or driver in charge of the truck equipment. He is in charge of rescue calls and serves as the acting shift commander in the absence of the lieutenant. He is senior to the firefighter and his duties have not changed since the inception of the collective bargaining agreement.

   
   

   FIREFIGHTER (FIREMAN) - This is general duty work in the prevention of fire damage in the combatting, extinguishing, and prevention of fires. He may be assigned to the operation of piece of equipment. His work is performed as a member of a team and a large part of his time is spent in study and cleaning fire department equipment apparatus and quarters and he must have knowledge of the water system and hydrant locations in the City (Exhibit 6).

   
   

   DISCUSSION

   
   

5. The only meaningful issue of contention between the parties is the propriety of inclusion of lieutenants in the proposed bargaining unit. Since there are no probationary or part-time employees and the position of fire inspector has been abolished, the parties have stipulated that the Chief, the captain and his confidential secretary should be excluded from the bargaining unit and the nature of their duties and responsibilities would support this agreement. The lieutenants are described as supervisory employees in the official job description, but the evidence shows that, although they perform a certain amount of control over subordinate employees, such action is generally restricted to routine matters not involving the exercise of a great amount of discretion or independent judgment. Major fires are under the operational control of the Chief or the captain and rescue calls are conducted under the

   supervision of the driver-engineer. At fires of a minor nature the lieutenants, generally, are part of a team which has specifically defined individual duties to perform and, as a consequence, there is little need for the issuance of orders, direction, and control other than the initial assessment of equipment and manpower required to extinguish the blaze. There has been little occasion for the lieutenants to exercise disciplinary authority over the employees under them and when such cases have arisen, generally they are disposed of by referral to higher authority. The lieutenants, recognizing the practical limitations of their powers, have as a matter of practice worked with the driver-engineers and firefighters on a comradely basis rather than a supervisory basis. They have willingly and voluntarily joined in the clean-up chores around the fire station and look upon themselves primarily as senior personnel rather than as supervisors. Although they occasionally evaluate subordinate personnel, evidence at the hearing indicated that these evaluations have on occasion been returned for resubmission, thus indicating they exercise no effective powers of recommendation with respect to promotion and other personnel matters. They do not provide policy input except on those occasions when they voluntarily attend staff meetings which primarily are devoted to operational considerations rather then the formulation of departmental policies.

   
   

6. In considering the propriety of their inclusion in the requested bargaining unit, reference must be made to the history of prior collective bargaining which in the past included lieutenants within the bargaining unit under the agreement. Evidence has been submitted that there has been no change in the duties of the lieutenants since the inception of this agreement.

Further, it is noteworthy to observe that the lieutenants were members of the group who asked for recognition by the public employer in 1972. The lieutenants accordingly appear to enjoy a community of interest with the driver-engineer and firefighters, particularly since they basically perform the same duties as their men and enjoy the same working conditions, fringe benefits and job conditions.

There appears to be no incompatibility in the proposed bargaining unit with the joint responsibilities of the Public Employer and public employees to represent the public. Nor does it appear that a conflict of interest would arise if lieutenants were included in the bargaining unit.

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

DONE and ENTERED this 17th 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

Attorneys at Law 653 Brevard Avenue

P.O. Box 1907

Cocoa, Florida 32922

Walter T. Rose, Jr., Esquire ROSE and WELLER

101 North Atlantic Avenue Cocoa Beach, Florida

Docket for Case No: 75-001234

Orders for Case No: 75-001234