STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF PALM BEACH FIREFIGHTERS, ) #1866 )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 75-084

) CASE NO. 8H-RC-756-1044 TOWN OF PALM BEACH, FLORIDA )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on April 17, 1975, at West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Public Employer: Robert Drummond

Foley & Lardner, Milwaukee, Wisconsin, and

Mike Buckner

Burns, Middleton, Farrell and Faust Palm Beach, Florida,

For Petitioner: Joseph H. Kaplan

Kaplan, Dorsey, Sicking and Hessen, P.A.

Miami, Florida SUMMARY OF THE CASE

The Town of Palm Beach Association of Firefighters, Local 1866 ("Petitioner" hereafter), has filed a petition with the Public Employees Relations Commission ("PERC" hereafter). Petitioner is seeking to represent a unit of employees of the Fire Department of the Town of Palm Beach ("Public Employer" hereafter). The unit described in the petition would include firefighters, fire driver/operators, lieutenants, captains, paramedic specialists and attendants; and would exclude the fire chief, deputy chief, assistant chiefs, clerk and mechanic. At the hearing Petitioner amended the unit designation. The amendment is one of form rather than substance.

Petitioner seeks to include within the unit all firefighters, fire driver/operators, fire lieutenants, fire captains, paramedic specialists, MICU attendants, and MICU driver/operators. Excluded would be the fire chief, fire deputy chief, fire assistant chief, clerk and fire mechanic.

By notice dated March 26, 1975, the final hearing was scheduled to commence on April 16, 1975. Upon the request of counsel for the Public Employer and with

the acquiescence of Petitioner, the hearing was rescheduled to commence on April 17, 1975, at 9:30 a.m. The notice of hearing was received in evidence, without objection, as Hearing Officer's Exhibit 2.

The purposes of the hearing were to consider, and to develop a record from which PERC might consider and determine the following issues:

1. Whether the Respondent is a public employer within the meaning of Florida Statutes, Chapter 447.

   
   

2. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447.

   
   

3. Whether there is a sufficient showing of interest as required for the filing of a Representation Election Petition under Florida Statutes, Chapter 447.

   
   

4. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission.

   
   

5. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission.

At the hearing the Public Employer filed a motion to dismiss the petition.

The motion is in nine paragraphs, which in essence present seven supporting grounds:

1. Petitioner's request for recognition is defective because it was made prior to the effective date of the Public Employees Relations Act. The request was allegedly made on December 28, 1974, and the Act did not become effective until January 1, 1975.

   
   

2. Petitioner's request for recognition is defective because it was made before the Petitioner registered with PERC.

   
   

3. The petition is defective because it was filed before Petitioner was properly registered with PERC.

   
   

4. The petition is defective because Petitioner was not registered at least 10 days prior to the making of the request for recognition and the filing of the petition.

   
   

5. The unit set forth in the petition is inappropriate as a matter of law, and is at variance with the unit for which recognition was requested on December 28, 1974.

   
   

6. Petitioner's showing of interest was not achieved in accordance with the law.

   
   

7. Through an ordinance the Town of Palm Beach is seeking to establish a local option plan under Fla. Stat. Section 447.002. PERC is deprived of jurisdiction pending disposition of that matter.

At the hearing the parties orally argued the issues raised in the motion to dismiss (See: Transcript 1/ pp. 17-61). Following the hearing the parties filed briefs, which are appended hereto. The Public Employer is contending, inter alia, that the Petitioner's request for recognition and petition predated

Petitioner's registration with PERC. The Public Employer has noted that the most recent request for recognition made by the Petitioner was in the form of a letter dated December 28, 1974 (See: Petitioner's Exhibit 1). The petition herein is stamped as received by PERC on January 17, 1975. From the PERC registration file it appears that registration materials respecting Petitioner were first received by PERC on January 13, 1975. Additional materials were requested and were received on January 17, January 20, and January 27. PERC assigned Petitioner a registration number by a letter dated February 10. The Public Employer contends that registration was effective either on January 27, when all materials were filed, or February 10, when PERC assigned the registration number, both dates being subsequent to the filing of the petition. The Act provides: (Fla. Stat. Section 447.008(6)):

"An employee organization which is not registered as provided in this section, is prohibited from requesting recognition by a public employer or submitting a petition requesting a representation election. . ."

The Public Employer argues that even if registration could be construed to have been completed on January 13, the request for recognition would still have antedated registration, and the registration would not have preceded the filing of the petition by 10 days as mandated by PERC rules. Rule 8H-6.01.

In opposition to the motion to dismiss Petitioner argues that registration factually preceded the filing of the petition. Petitioner contends that the registration material was dated January 7, 1975, received by PERC on January 13, perfected on January 27, and acknowledged on February 10. The petition was dated January 9, received by PERC on January 17, and acknowledged by PERC as being in proper form on March 18. Petitioner asserts that such defects as there were in the original registration materials submitted to PERC were of a technical sort. Assuming, arguendo, the existence of some technical merit in the Public Employer's motions, Petitioner has made an evidentiary presentation depicting some five years of effort on its part to engage in collective bargaining with the Town of Palm Beach. This long, frustrating history, argues Petitioner, amply demonstrates that any request for recognition would have been a useless act, which the law does not require. Petitioner contends that the bargaining history estops the Public Employer from raising technical objections at this juncture. The bargaining history between the parties can be gleaned from Petitioner's Exhibits 1, 2 and 6-23. Petitioner cites PERC Rule 8H-9.01 in support of its argument.

The Public Employer sought to continue the hearing on the morning of April

17 in order to allow PERC an opportunity to consider the notion to dismiss. The motion for continuance was denied by the undersigned. The Public Employer also sought to continue the hearing on account of the unavailability of the Town Manager to testify. The absence of the Town Manager and reasons for denying the motion to dismiss are fully set out in the record (Tr 63-73, 76-82, and 386- 417).

Petitioner's proposed unit designation is described infra. The Public Employer, through its counsel, described the appropriate unit as follows: (Tr 76)

"The only appropriate unit would consist of all public safety employees, excluding pro- fessional, managerial, and confidential as

defined in the act. Alternatively under no circumstances could mobile intensive care unit employees be included in an appropriate unit with firefighters."

Public safety employees would include employees of the fire department, lifeguard department, police department and mobile intensive care unit.

Petitioner called the following witnesses: Byron Val Williams, the president of the Town of Palm Beach Association of Firefighters, Local 1866, and an employee of the Public Employer's Fire Department for eleven years, presently serving as a driver/operator; James Walker, an employee of the Public Employer's Fire Department for fourteen years, presently serving as a lieutenant; Edward Kasmire, a paramedic training driver/operator; and Frank Fleming, a paramedic specialist. Petitioner placed 29 separate exhibits into evidence.

The Public Employer presented its evidence through cross-examination of Petitioner's witnesses. The Public Employer called no witnesses and offered no exhibits.

The parties were allowed an opportunity to file legal memoranda and proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The petition herein was dated January 9, 1975 by Petitioner, and was filed with PERC on January 17, 1975. (Hearing Officer's Exhibit 1).

   
   

2. The hearing was properly scheduled by notice dated March 26, 1975, and was conducted on April 17, 1975, by agreement of the parties. (Hearing Officer's Exhibit 2, Tr. 10, 11).

   
   

3. The Town of Palm Beach is a public employer within the meaning of Fla. Stat. Section 447.002(2). (Stipulation, Tr. 5, 6).

   
   

4. The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization within the meaning of Fla. Stat. Section 447.002(10). (Stipulation, Tr. 6-8).

   
   

5. During the course of the past five years, Petitioner has requested recognition, or has otherwise sought to engage in collective bargaining with the Public Employer on several occasions through written and oral communications. Most recently Petitioner sought recognition through letters dated December 28, 1974, and April 11, 1975. (Tr 85-240, Petitioner's Exhibits 1, 2).

   
   

6. There is no contractual bar to holding an election in this case. (Stipulation, Tr. 9, 10).

   
   

7. The parties have not engaged in collective bargaining under the auspices of the Public Employees Relations Act. The parties engaged in collective bargaining in a limited fashion prior to the passage of the Act. Efforts on Petitioner's part to engage in collective bargaining with the public employer began in 1969. (Tr. 85-240, Petitioner's Exhibits 1-23).

   
   

8. Registration material delivered by Petitioner to PERC was dated January 7, 1975, and was received by PERC on January 13, 1975. Additional materials were received by PERC on February 10, 1975. PERC acknowledged receipt of the

   registration material on February 10, 1975. The Public Employer contended at the hearing that registration was not proper because the source of certain funds was not adequately revealed. PERC has previously concluded that registration was complete and proper. (PERC registration File No. 8G-OR-756-1044, TR 11-15, 22-27, 225-238; Hearing Officer's Exhibit 3; Petitioner's Exhibit 4).

   
   

9. Petitioner filed the requisite showing of interest with its petition. The Public Employer has asserted that the showing of interest is not adequate, however, no evidence was presented to counter the administrative determination previously made by PERC. (Hearing Officer's Exhibit 4; Tr 16, 17; Public Employer's Motion to Dismiss).

   
   

10. There are between forty-five and fifty-five persons in the unit proposed by Petitioner. All of the employees within the proposed unit are engaged in firefighting and/or paramedical rescue operations. The employees within the proposed unit work the same twenty-four hours on duty, forty-eight hours off duty shift. They eat and sleep in the same area while on duty, and wear the same or similar uniforms. There is a significant amount of interchange in duties among the employees. Wages and other terms of employment, job and salary classifications are determined for all of the employees within the proposed unit in the same manner. The bargaining history indicates a firm desire on the part of the employees to belong to a unit such as Petitioner proposes. (Tr 148-151,298-345, 369-372).

    
    

11. The Public Employer contends that the only appropriate unit would include all public safety employees. No direct testimony was offered in support of this contention. Direct and cross-examination of Petitioner's witnesses indicate that the fire department and other public safety departments do not generally work together. Firefighters do not perform police functions or lifeguard functions. Police and lifeguards do not perform fire department functions. There is no interchange of employees between the departments, although there was evidence presented that transfers between the departments do occur. (Tr 148-151, 298-345, 369-372).

    
    

12. Fire lieutenants are the senior officers in charge of each shift at two of the Town's three fire stations. Captains are in charge of shifts at the headquarters fire station. Fire lieutenants have four persons working under them. Fire lieutenants work the same shift as the other firefighters, wear the same uniform with no adornment of any kind, perform the same daily duties such as cleaning equipment, and teaching or participating in classes and training exercises. They perform the same firefighting duties. The fire lieutenant is charged with filling out a log book, checking the roster, answering the radio, preparing training schedules, and filling out fire reports, which duties the other firefighters do not generally perform.

    
    

13. The fire lieutenants fill out evaluation reports on personnel who work on their shifts. The personnel are graded numerically from one to ten in approximately twenty categories, e.g., public contact and taking directions. These reports form a part of the procedure through which an employee is granted or denied a merit pay increase or is granted or denied a promotion. If an employee who works under a lieutenant has a grievance, the lieutenant is the person to whom the grievance is first carried. The lieutenant is the person in charge of maintaining order at the fire station and is in charge of any fire operations until a senior officer arrives on the scene.

    
    

14. The fire lieutenants report directly to fire captains. The lieutenant takes no direct roll, other than making reports, in hiring, firing, promotion or

    transferring employees. The lieutenant is not responsible for personnel administration nor for collective bargaining. He takes no roll in formulating or administering the budget. Lieutenants and captains do not perform any functions as a group. Lieutenant Walker indicated that he has never attended a meeting at which lieutenants and captains met as a group.

    
    

15. If a lieutenant or a captain is absent from work, other personnel fill the position. Val Williams, a pumper/operator, has served as a captain for as long a period as two months. (Tr 248-296, 302-319, 315-332; Petitioner's Exhibits 24, 25, 26).

    
    

16. Fire captains perform generally the same duties and fulfill the same rolls as fire lieutenants. Captains head the shifts at the headquarters stations. In addition to duties performed by lieutenants, captains conduct fire inspections, and serve as the next step in the chain of command above lieutenants. Captains answer directly to the assistant fire chief. (Tr 259-61, 334; Petitioner's Exhibits 24, 25, 26).

    
    

17. Assistant fire chiefs are in charge of each shift for all three fire stations. They oversee the operations of each station, and visit each station on at least one occasion during the course of each shift. Assistant fire chiefs answer to the deputy chief; the deputy chief answers to the chief; the chief answers to the town manager. (Tr 265-66, Petitioner's Exhibits 24, 25, 26).

    
    

18. Mobile Intensive Care Unit (MICU) attendants and driver/operators, and paramedic specialists work the same shifts and wear the same uniforms as firefighters. Each is paid approximately five percent more than a firefighter who has been employed for the sane period of time. Driver/operators answer fire calls, drive to the fire with a firefighter, and occasionally fight fires. They answer directly to lieutenants. Paramedic specialists answer directly to the deputy fire chief. Paramedic specialists receive extensive training apart from firefighting training. Paramedic specialists answer fire calls, but the testimony was not clear as to whether they are permitted to fight fires.

    
    

19. Paramedic specialists do not perform any personnel administration or policy making roll. (Tr 333, 334, 346-358, 373-386).

    
    

20. There are one clerk and one mechanic who work with the fire department. They apparently answer to the fire chief. Each works an eight hour day, five days weekly. They do not work directly with firefighters. (Tr 330- 333).

    
    

    CONCLUSIONS OF LAW

    
    

21. The Town of Palm Beach is a public employer. Fla. Stat. Section 447.002(2).

    
    

22. The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization. Fla. Stat. Section 447.002(2).

    
    

23. Petitioner has properly registered with PERC. Fla. Stat. Section 447.008, Rule 8H-6.01.

    
    

24. Petitioner has made a sufficient showing of interest. Fla. State 447.009(2), Rule 8H-3.04.

Guidelines to be followed by PERC in defining the bargaining unit are set out in Fla. Stat. Section 447.009(4), and in Rule 8H-3.31. With the possible exception of captains and lieutenants, the unit, as proposed by Petitioner, appears to be supported by parts (c), (d), (e), (f), and (g) of 447.009(4), and by part (2) of the Rule. Parts (a) and (b) of the statute and part (1) of the Rule may be better served by a unit defined as proposed by the Public Employer.

The term "managerial employee" is defined in Fla. Stat. Section 447.002(4).

Lieutenants and captains clearly do not formulate policy applicable throughout the bargaining unit, assist in collective bargaining negotiations or administer agreements resulting therefrom, or have a significant roll in preparation and administration of the budget. Lieutenants and captains participate to some extent in personnel administration and employee relations in that they prepare evaluation reports on employees and manage the shifts at each fire station. The historic relationship of captains and lieutenants to other employees and to the public employer may mitigate against classifying them as managerial.

In accordance with Fla. Stat. Section 447.009(3)(a), no recommendations are submitted.

ENTERED this 30th day of June, 1975.

G. Steven Pfeiffer Hearing Officer

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

ENDNOTES

1/ References to pages in the official transcript will hereafter be designated "Tr" followed by the page number.

COPIES FURNISHED:

Joseph H. Kaplan, Esquire Kaplan, Dorsey, Hessen and Sicking, P.A.

1951 Northwest 17th Avenue Miami, Florida 33125

Mike S. Buckner, Esquire Burns, Middleton, Farrell & Faust

205 Worth Avenue

Palm Beach, Florida 33480

Robert K. Drummomd Foley & Lardner

777 East Wisconsin Avenue Milwaukee, Wisconsin 53202

Docket for Case No: 75-000084

Orders for Case No: 75-000084