STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL ASSOCIATION OF ) FIRE FIGHTERS, LOCAL NO. 2476, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1097

) PERC NO. 8H-RC-766-1076 CITY OF BELLE GLADE, FLORIDA, )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for a hearing before the Division of Administrative Hearings duly designated Hearing Officer, James E. Bradwell, on July 20, 1976, in Belle Glade, Florida.

APPEARANCES

For Public Robert A. Hanudel, Esquire and Employer: Andrew T. Smith, Esquire

Alley and Alley, Chartered

205 North Brush Avenue Post Office Box 1427 Tampa, Florida 33601

For Petitioner: Lawrence E. Hoffman, Esquire

State Representative, International Association of Fire Fighters

Post Office Box 8147

West Palm Beach, Florida 33407

On May 27, 1976, the International Association of Fire Fighters, Local 2476, Petitioner, filed an RC petition with the Public Employees Relations Commission (PERC) seeking a unit of employees including: Firemen, Pump Operators, Lieutenants, and excluding: Fire Chief and Secretary to Chief.

During the course of the proceeding, the City of Belle Glade (Employer) filed various motions and requests including a request to effect discovery, a request for admissions, interrogatories, notice of depositions, a motion to shorten time for discovery and/or in the alternative to postpone hearing, a motion for oral argument on written request to effect discovery, a pre-hearing motion to dismiss, an application for determination of managerial and confidential status, motion to dismiss, a motion to quash hearing and the notice of hearing, and a motion for continuance of hearing.

All motions to dismiss filed with the Hearing Officer were either tentatively denied or submitted to PERC for final determination of a ruling thereon. As to those motions dealing with the investigative aspects of the RC

petition, those motions were and are referred to PERC for a final determination as it is the administrative agency charged with that responsibility.

Lawrence E. Hoffman, staff representative for the Professional Fire Fighters of Florida, an organization comprised solely of local unions of the International Association of Fire Fighters, was called to shed some light on the question as to whether or not the Petitioner is a labor organization within the meaning of Florida Statutes, Chapter 447. Hoffman testified that employees are permitted to participate in the activities of the Petitioner as it relates to the various locals and that part of the organization's duties and/or responsibilities is that of dealing with employers with regard to employees' hours, wages and others terms and conditions of employment. He testified that in the past, such has included inter alia, negotiating with employers regarding collective bargaining agreements. The Employer advanced no evidence to refute or otherwise contest the testimony of Hoffman. Additionally, it was brought out during the course of the hearing that Patricia J. Hill, supervisor of elections for PERC, caused to be issued a letter dated January 7, 1975, addressed to Warren G. Street, Petitioner's president. She advised therein that Petitioner's registration fees and materials had been received, reviewed and found to be in compliance with PERC's rules and that Petitioner had been assigned a registration number 8H-OR-756-1113. 1/

The Employer stipulated that the City of Belle Glade has a fire department and that the employees petitioned for are employed by the City. 2/

During the course of the hearing, Employer was asked whether it declined at this time to recognize the Petitioner whereupon its counsel advised that the matter would have to be discussed with the City Council. Based on the fact that the petition had been pending for approximately 90 days, the undersigned considered the City Council's failure to act on the Petitioner's request to recognize it as the exclusive bargaining representative of the employees petitioned for as tantamount to a declination to recognize it as such.

According to the Petitioner, the approximate number of employees in the unit claimed to be appropriate is approximately 10 and the petition was submitted with seven signed and dated authorization cards.

As previously stated, PERC had administratively determined that Petitioner was properly registered and no evidence was submitted during the course of the hearing to refute or to otherwise contest that administrative determination.

Robert G. Carter, a lieutenant fire fighter employed by the City for approximately 11 years, testified that he received the rank of lieutenant through promotion after having passed a competitive examination regulated by the City of Belle Glade's civil service program. Lieutenants earn their vacation in the same manner as driver engineers or fire fighters in the fire department.

The same is true for sick and annual leave. He testified that he had no impact on what employees received raises in the fire department and that he also received no privileges that driver engineers or fire fighters did not receive. The optimum or desired complement on each shift according to Carter is four employees. Presently, the shifts are operating with one lieutenant, one driver engineer, and one fire fighter. The normal shift for a fire fighter is 48 hours on duty and 24 hours off duty.

As a lieutenant he has the responsibility of pumping the fire apparatus.

During extreme emergencies and temporary situations, the lieutenant has the responsibility of doing this if for example a driver engineer 3/ is out for

lunch or for some other reason. He testified that he is required to use the "tools of the trade" and was proficient in using them. During the course of his work day he sweeps the floors as do other employees and washes windows and trucks in the fire department. He has no authority to go beyond the geographical limits of the City to respond to an alarm without the permission of the Chief, the Public Safety Director or the City Manager. He related an instance wherein a fire was responded to by two fire fighters. He testified that the No. 1 truck would stay with the fire and the No. 2 truck would lay the supply line and if another paid employee arrived at the scene, he, if instructed by the lieutenant, would take over the pump and the lieutenant would be relieved to go to the fire and instruct in the fighting procedures. He has no input in the budget preparation for the fire department. When supplies are needed at the station the lieutenant submits requisitions which must be signed by the Chief prior to any action being taken by the central purchasing agent. In addition, during his employment he assisted the other fire fighters in painting the building approximately 5 years ago. None of the employees petitioned for are assigned any electrical or plumbing duties as the City has an electrical and plumbing department that normally takes care of those functions. However, during emergencies the lieutenant has the authority to call and requisition for repairs to be done by local contractors. He has the authority to issue oral reprimands but has no authority to suspend employees without pay. Nor does he have the authority to relieve a man from duty or to demote him." (See Petitioner's Exhibit No. 2 received into evidence) He further testified that he had no authority to recall or promote employees. Carter was told approximately two years ago that the job description contained in Petitioner's Exhibit No. 2 was reflective of his duties and that while there were some duties which he as an employee performed, there were no duties contained in said description which he did not perform. He testified that the chief was the final arbiter of grievances and that he, the Chief, was the person authorized to deviate from established City policy. He testified that personal leave had to be approved by the senior officer who was usually the Chief. The Chief also is the person in charge of training new employees.

The Employer contends that the proposed bargaining unit of all firemen, pump operators, and lieutenants in the fire department of the City of Belle Glade is, on its face, too small and thus an inappropriate unit. Therefore it contends that the most appropriate bargaining unit would be a public safety unit encompassing all full and part time employees in the Public Safety Department.

The Public Safety Department is headed by the public safety director. His responsibility and function is to provide for security and protection of the citizens of the community. Within the Public Safety Department there are three sub-departments: the fire department, police department and the building inspection department. Of the approximately 230 employees employed by the Employer, approximately 30 percent are employed within the Public Safety Department. All public safety employees are civil service employees and are governed by uniform civil service rules and regulations. They all receive the same vacation, sick leave and other fringe benefits. The public safety director is primarily responsible for the administration and coordination of all activities of the entire public Safety Department. His specific responsibilities include the coordination and supervision of all police, fire and inspection functions. He consults with the City Manager concerning plans and policies to be observed in the daily operations of the fire, police and building inspection departments. He controls expenditures of appropriations and prepares budget estimates for the entire department. He is responsible for making presentations to the City Commission to explain departmental plans, requests, and activities as directed by the City Commission. He must approve all promotions, transfers and other personnel changes within the department.

Part of his duties include coordinating the fire department and the police department and the building inspection department as they relate to disposing of citizens' complaints. He inspects premises for occupations and licensing.

During times, police are concerned with traffic accidents which may occur from the use of premises. During other times, the fire department and building inspection department check together regarding fire hazards and electrical hazards. The fire department and the police department sometimes cooperate to eliminate violations of fire codes and ordinances developing from problems of ingress and egress of premises. At times, citizens' complaints involve tee use of all three safety department functions. For example, the chief building inspector investigates right-of-way problems and checks compliance with building and zoning codes and ordinances. At times, the fire chief inspects for fire hazards and compliance with fire codes and ordinances. The police chief at times is called upon to further investigate city ordinances and then processes any meritorious complaint issuing out of his investigative efforts of the three arms of the Public Safety Department. The police and fire departments cooperate in areas of fire fighting, rescue operations and arson investigations. In arson investigations the fire chief is the chief arson investigator and works with the police department crime and investigation unit. The chief and police representative work together at fire scenes and make efforts to determine whether or not arson was the cause of a fire. After investigation if there is some suspicion of arson, the fire chief and the members of the fire department who assisted him investigate further and submit a report to the state fire marshal who is called in to fully investigate the fire.

In rescue operations the police and fire departments have some of the same responsibilities to victims. While the fire and police departments are notified separately, they both respond to rescue calls and at times work together in rescue operations. There is at least one emergency medical technician (EMT) on the fire department and approximately five EMT's on the police department.

During emergencies involving crowd and traffic controls and the protection of fire fighters, police are sometime called upon to help drag hose lines and to assist fire fighters in their fire fighting efforts.

In addition to the above members proposed by the Employer as an appropriate unit, the unit would also include those employees classified as volunteer firemen and police auxiliaries. There are approximately twelve volunteer firemen who are paid for time actually spent fighting fires, drilling or training. The volunteer program serves as a supplement to the fire department and as a training program which according to the Employer, serves to prepare volunteers for service as regular members of the fire department. The evidence reveals that at least two current firemen originally worked as volunteers who received a significant portion of their fire fighting training from their activities as volunteers.

There are seven auxiliary policemen presently working within the police department. They are paid a flat sum for working one 8 hour shift per week. Their work is regularly scheduled and when on duty they assist regular police officers. During this assistance, they have full arrest powers while on duty and carry a gun. To become an auxiliary policeman, they must attend a remedial training school leading to certification by the State. Volunteer firemen and auxiliary police personnel are covered under workmen's compensation insurance plans and while on duty, are covered by a $20,000 accidental death insurance policy. In support of the argument that a public safety unit is the appropriate unit, the Employer points to the organizational structure of the City and asserts that it would promote the efficient administration of this City's government to certify such a unit. Factors relied on are the fact that all

employees are civil service employees with the same fringe benefits, wages and other terms or conditions of employment determined by the same set of civil service rules and classifications like other employees. Additionally, it is noted by the Employer that there is interdependence and cooperation between the various departments.

During the course of the hearing the Employer made an application for a determination of managerial, confidential status as to certain employees in either of the two units proposed by the parties as the appropriate unit.

Included in this application are the public safety director, his secretary and clerk typist, the deputy police chief, lieutenant of services and his secretarial help, identification sergeant, detective supervisor, four patrol sergeants, chief building inspector, fire chief, and fire lieutenants. 4/ In concluding its position on the appropriate unit, the Petitioner alleges that the unit as petitioned for is an appropriate unit and the lieutenants are not called upon to attend policy meetings nor do they offer any input into any policy applicable to the unit as petitioned for. Petitioner points out that managerial decisions are made by the chief and are not work products of the lieutenants.

Petitioners points out that lieutenants are members of a working team acting as a crew leader who are traditionally included in bargaining units throughout the state.

In accordance with PERC Rule 8H-3.23, this report is submitted to PERC without any recommendation.

DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ At this juncture of the hearing it was obvious that Employer's counsel was embarking upon a course of delaying the hearing and was reminded by the undersigned that I as Hearing Officer have an obligation to develop fully the facts which will enable PERC to reach a determination on the issues posed and that absence some concrete evidence to refute PERC's administrative determinations, the undersigned would not permit Employer's counsel to continue delaying by engaging in dilatory tactics and fishing expeditions. Accordingly, at various junctions throughout the course of the hearing, the Employer was not permitted to inquire in areas wherein it was clear from questions put to various witnesses and proffers that he was simply trying to perpetuate the hearing for no useful purpose. Counsel was reminded that I would indicate to the Commission what his proffer amounted to, if he deemed it necessary and that when the matter is considered before the Commission they could determine whether or not his proffers were of such importance as to permit the continuation of questions where it was obvious to the undersigned that he was merely embarking upon fishing expeditions. Of note also is the fact that the petition had been filed approximately 90 days prior to the conduct of the hearing in this cause and that the Employer had not availed itself of any effort to apply for and examine the registration materials of Petitioner prior to the hearing except for an eleventh

hour mailgram on the eve of the hearing for an examination of the authorization cards filed in support of the petition. Based on the various and sundry motions filed by Employer's counsel for continuance of this cause, the undersigned advised counsel that he was not of the opinion that the statute contemplated a delay of 6 to 12 months before an RC case goes to hearing. Based on the fact that this RC petition had been on file for approximately 90 days, the undersigned denied counsel's motion for continuance.

2/ At this juncture of the hearing, Employer's counsel made a demand to inspect authorization cards submitted in support of the RC petition filed herein. The undersigned is hereby referring that request to PERC for determination.

Employer's counsel was further advised that through witnesses present at the hearing, he would be permitted to engage in some limited inquiry as to whether or not the cards offered in support of the petition were obtained by fraud, coercion, collusion or via some other means unlawful under the statute. No such evidence was submitted during the course of the hearing.

3/ During the hearing, it was brought out that the classifications of driver engineer and pump operator were synonymous classifications.

4/ While the application was submitted to PERC, the undersigned permitted the parties to introduce record evidence on this issue during the course of the hearing. Such evidence is contained from pages 478 through 545 of the official transcript.

Docket for Case No: 76-001097

Orders for Case No: 76-001097