HomeMy WebLinkAbout14- Board of Personnel Appeals Brief / IAFF's Response to the City's Opening BriefKarl J. Englund
KARL J. ENGLUND, P.C.
401 North Washington Street
P.O. Box 8358
Missoula, Montana 59807
Telephone: 406.721.2729
Facsimile: 406.728.8878
E-mail: KarlJEnglund@aol.com
Attorney for IAFF Local 613 -Bozeman Firefighters
STATE OF MONTANA
DEPARTMENT OF LABOR AND INDUSTRY
BOARD OF PERSONNEL APPEALS
IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013:
CITY OF BOZEMAN, MONTANA
Petitioner/Appellant,
_v_
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 613,
Respondent.
Case No. 1821-2013
RESPONDENT'S BRIEF TO BOARD
OF PERSONNEL APPEALS
This case involves Bozeman's Fire Department and the bargaining unit
representing its fire fighters. In 2013, the City established the position of battalion chief,
hired one battalion chief in June; and hired two additional battalion chiefs in late -August,
early -September. By way of a unit clarification petition filed in June 2013, Bozeman
sought to exclude the battalion chiefs from the unit as supervisory, management or
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 1
confidential employees. The bargaining unit, represented by the International
Association of Fire Fighters Local 613 — Bozeman Firefighters, Union Exhibit A at 2,
responded and contended the position is not management, confidential or supervisory
and, even if it is, a unit consisting of all fire fighters below the ranks of chief and deputy
chief existed prior to July 1, 1973 and thus is covered by a section of the Collective
Bargaining Act that grandfathers the composition of bargaining units existing prior the
effective date of the Act. Section 39-31-109, MCA.
After two days of testimony and full briefing, Hearing Officer Hanchett issued
findings, conclusions and a recommended order denying the petition. He found that a
bargaining unit consisting of all fire fighters below the rank of chief and deputy chief
predated the effective date of the Act, is covered by the Act's grandfather clause as it has
been interpreted by this Board and the Supreme Court, and there are no actual substantial
conflicts in keeping all positions below the rank and chief and assistant chief in the
bargaining unit.
Bozeman filed exceptions to three of the Hearing Officer's findings of fact and to
the legal analysis of the grandfather clause.' The case will be argued to the Board at its
October meeting. The questions at issue are: whether the Hearing Officer erred in his
analysis of meaning of Section 39-31-109, MCA; and, whether there is substantial
' While the City says it "reserve(d) its objection" to additional and unstated factual findings not
mentioned in its filings, the Board's rules are clear that parties must make "specific written
objections" to a proposed order within 20 days after the proposed order is issued. Section
24.26.222, ARM. There is no mechanism by which a party can extend this deadline by
"reserving its objections" until some unspecified time later.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 2
evidence on the record to support his conclusion that the bargaining unit existed and
bargained with the City prior to July 1, 1973 and it has not been decertified since then.
BACKGROUND:
1) The Board and the Montana Supreme Court Have Consistently Applied
Section 39-31-109 to Bargaining Units and Agreements Existing Prior to July
1, 1973:
The analysis of this case must begin with an understanding of the meaning of
Section 39-31-109, MCA.
Montana's Collective Bargaining Act was enacted in 1973, Chapter 441, Laws of
1973, to "encourage the practice and procedure of collective bargaining to arrive at
friendly adjustment of all disputes between public employers and their employees,"
Section 39-31-101, MCA — to encourage public employers and the chosen representatives
of identified groups of public employees to meet at reasonable times, negotiate in good
faith with respect to wages, hours, fringe benefits, and other conditions of employment
and attempt to reach an agreement (but where neither side is required to agree to a
proposal or make concessions). Section 31-39-305(2), MCA.
The Act covers "public employees." Section 39-31-201, MCA. It excludes
"supervisory employee(s)," "confidential employee(s)" and "management official(s)"
from the definition of "public employee(s)." Sections 39-31-103(9)(b)(ii), (iii) & (iv),
MCA. Thus supervisors, management officials and confidential labor relations employees
are excluded from the Act's coverage and enjoy none of the Act's protections. Montana
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 3
Public Employees Association v. Department ofAdministration, Labor Relations Bureau,
217 Mont. 230, 232, 703 P.2d.862, 863 (1985).
There is an exception to this rule based on the fact that public employee collective
bargaining was occurring prior to the passage of the Act. See, e.g., Benson v. School
Dist. No. 1 of Silver Bow County, 136 Mont. 77, 344 P.2d 117 (1959) (involving a 1956
collective-bargaining agreement between the Butte School District and its teachers). The
Act contains a "grandfather" clause acknowledging that fact and recognizing the
existence and continued viability of pre -Act bargaining units. That grandfather clause is
Section 39-31-109, MCA, which says, "Nothing in this chapter shall be construed to
remove recognition of established collective bargaining agreements already recognized or
in existence prior to July 1, 1973."
This Board and the courts have interpreted the meaning of this statute and have
consistently applied it to bargaining units, bargaining agents and bargaining agreements
in existence prior to the Jul 1, 1973.
In what appears to be the first time the Board interpreted the statute, it held in
1974 that the statute "applies to the recognition of the bargaining agent as well as the
ratification of existing bargaining agreements." In the Matter of Unit Clarification 91-77
at 1 (Board Decision, July 10, 1978), quoting, In the Matter of Retail Clerks International
Locals 4, 57, 684 & 1573 v. Montana Department of Revenue (Board Decision February
5, 1974).
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 4
Four years later, in 1978, the Board took "time again to review" the meaning of
the statute. In the Matter of Unit Clarification 9 1- 77 at 2 (Board Decision, July 10,
1978). The Board found that the statutory phrase "bargaining agreements already
recognized" was ambiguous because "recognition in labor vernacular refers to the
acknowledgment by the employer that a union has majority support of the employees in
the bargaining unit. The bargaining representative is recognized, not the bargaining
agreement." Id. The Board interpreted the ambiguity to mean that the Legislature
"determined that protection ought to be given to bargaining units existing at the time of
the passage of the legislation." Id. The Board then reconciled the grandfather clause
with the Act's exclusions by holding that statutorily excluded positions would be
included grandfathered units if the inclusion of such positions did not cause a substantial
conflict which results in compromising the interest of any party to its detriment. Id. at 5.
In 1982, the Supreme Court acknowledged that the Board interpreted the statute
"as recognizing both bargaining units and agreements already in existence" on the
effective date of the Act, City of Billings v. Billings Firefighters Local 521, 200 Mont.
421, 426, 651 P.2d 627, 630 (1982) and upheld that interpretation. Id. at 431, 651 P.2d at
633. Thus, the Court affirmed the Board's ruling that bargaining agreements and
bargaining units in existence prior to July 1, 1973 are appropriate, even if they include
statutorily excluded positions, unless the inclusion of those positions in the bargaining
unit creates an actual substantial conflict which results in compromising the interests of
any party to its detriment. Id. at 426, 651 P.2d at 630.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 5
Importantly, the Court could not have missed the significance of its holding
because there was a dissent by Justice Weber, who pointed out that the lasting effect of
the majority decision was:
to neutralize the statutory exclusion as to both supervisory
and management employees where they are a part of a
bargaining unit in existence prior to the 1973 effective date of
the Act. Such neutralizing of the statutory exclusion will
continue without limit of years so long as the collective
bargaining unit remains in existence.
Id. at 434, 651 P.2d at 435 (emphasis added). While Justice Weber acknowledged the
"careful and thoughtful" majority opinion, he proposed that the grandfather clause have a
much more narrow scope, but he conceded that to accomplish that result, "additional
legislation is required." Id. The statute has never been amended.
In 1981, the Board had another opportunity to decide issues related to the
grandfather clause in the case of In the Matter of Unit Clarification 6-80 (Board Final
Order, November 16, 1981). The Board held again that Section 39-31-109, MCA, "was
and is used to protect contracts and bargaining units in existence in 1973." Id. at 1. Unit
Clarification 6-80 involved a pre -1973 unit at the Montana State Prison represented by
the American Federation of State, County and Municipal Employees. That unit was
decertified in 1979 and a new exclusive representative (the Montana Public Employees'
Association) was subsequently certified. The Board held, "This change in the contract
and bargaining unit to a new exclusive representative negates the applicability of the
grandfather clause." Id. at 2. In Unit Clarification No. 6-80 v. Department ofAdmin.,
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 6
Labor Relations Bureau, 217 Mont. 230, 233, 703 P.2d 862, 864 (1985), the Supreme
Court upheld the Board's decision that the grandfather clause did not apply in that
particular case where there was "such a change of exclusive representatives in a
grandfathered agreement and bargaining unit" and held specifically that "such a change"
meant "an election and certification of a new exclusive representative." Id. at 233, 703
P.2d at 864.2
Thus, as specifically approved by the Supreme Court, this Board has held
consistently that bargaining units in existence prior to July 1, 1973 are appropriate even if
they include positions which are statutorily excluded unless the inclusion of positions in
the bargaining unit creates an actual substantial conflict which results in compromising
the interests of any party to its detriment. However, the grandfather clause does not
apply when a pre -Act bargaining agent is decertified and a new bargaining agent is
certified post -Act.
With this understanding of law, we turn to the history of bargaining between the
City of Bozeman and its fire fighters.
2) There Has Been a Bargaining Unit of Fire Fighters below the Rank Deputy
Chief since 1939 and a History of Bargaining since Before the Passage of the
Act.
2 In its brief to the Supreme Court, the Board argued that the grandfather clause was intended to
cover pre -1973 collective bargaining agreements, pre -1973 exclusive representatives and pre -
1973 bargaining units. See, Unit Clarification No. 6-80 v. Department of Admin., Labor
Relations Bureau, Brief of Respondent Board of Personnel Appeals (April 1, 1985). The Board's
brief to the Supreme Court in Unit Clarification No. 6-80 v. Department ofAdmin., Labor
Relations Bureau, is available on line at: http://applicationengine.mt.gov/getContent?vsld=
{ 55A85686-2B73-4379-B09E-DAODAC7EE80A} &impersonate=true&obj ectStoreName
=PROD%20OBJECT%20 STORE&obj ectType=document.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 7
Bozeman and its fire fighters have been parties to a series of collective-bargaining
agreements, the latest of which is effective from July 1, 2013 through June 30, 2015.
Union Exhibit A; City Exhibit 1. The bargaining unit, according to the contract, consists
of all fire fighters and uniformed day personnel except the "Assistant Director of Public
Safety/Fire Operations and EMS Services" and the "Assistant Director of Public
Safety/Inspections." Id. at Article II. Those are antiquated titles.
"Prior to 2003, the written collective-bargaining agreements excluded the
positions of chief and deputy chiefs." Transcript of Proceedings, page 4: lines 21-24.3
(Stipulation of the parties read into the record). In July 2001, after the retirement of a
chief and a deputy chief, Bozeman completed a "reorganization" of the management
structure of then -separate police and fire departments into a single public safety
department, Tr at 14-15:17-11, and "changed" the management positions within the
former fire department. Id. at 4-5: 21-5 (Stipulation of the parties read into the record).
In negotiations in 2003, Bozeman and the Union agreed to change the recognition clause
to reflect the change in management's job titles. Id. In 2005, Bozeman abandoned the
public safety department experiment, reverted to separate police and fire departments and
went back to using the titles of fire chief and deputy chiefs. Id. at 15:12-21. (Assistant
City Manager Winn's testimony that in July 2005, "We went back to a traditional
organizational structure with a fire chief and two deputy chiefs...") In all subsequent
3 Hereafter cited as "Tr at (page number):(line numbers)."
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 8
negotiations, the Union proposed changing the management job titles back to chief and
deputy chiefs, but the City never agreed to do so. Id. at 371-72:25-10 (Union vice-
president and negotiator Norby's testimony that in every set of negotiations since 2005,
the Union proposed to "go back to chief and deputy chiefs being excluded" but the City
would not agree.)
In any event, currently there is one chief and two deputy chiefs who all agree are
management and not in the bargaining unit. Hearing Officer's Findings of Fact;
Conclusions of Law; and Recommended Order (Rec. Ord.) at 2, ¶4.
The first written collective-bargaining agreement between Bozeman and its fire
fighters was in 1976, Tr at 366:2-6, and, as stated, the bargaining unit consisted of all fire
fighters below the rank of deputy chief. Id. at 367:8-10. However, a union of Bozeman
fire fighters has existed since 1939 when a local organization formed and affiliated with
the International Association of Fire Fighters (IAFF). Union Exhibit B; City Exhibit 7.
The local organization has existed continuously since 1939, has consistently been known
as the Bozeman Firefighters, but has not consistently been affiliated with the IAFF. Tr at
365-66:7-1. Over the years, the local organization "three, maybe four times" has "gone
in and out of affiliation with the IAFF" but when it was "out of affiliation" with the
IAFF, there remained a local "Bozeman Fire Fighters Association." Id.
The Union last affiliated with the IAFF in 1999 and has continued to be affiliated
since then. City Exhibit 6. There was no testimony that the affiliation, disaffiliation and
re -affiliation with IAFF changed in any way the manner in which the Union operated and
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 9
dealt with the City. For example, one of the City's witnesses testified that since 1999, the
Union has handled negotiations with the City just as it did prior to affiliation — it elected
its own negotiators from among its members and the local membership determined the
issues the bargainers were to address with the City. Tr at 349-350:20-17.
Union archives indicate that as early as the 1950's, the Bozeman Firefighters
gathered information concerning wages paid to fire fighters in other Montana cities for
the purpose of bargaining with the City. Tr at 367-68:18-9. As early as 1968, the
Bozeman Firefighters actively engaged in collective bargaining with the City and the
parties arrived at an unwritten agreement concerning wages for all fire fighters below the
rank of chief. Union Exhibit C (May 13, 1968 letter from Daniel Figgins, President,
"Bozeman Fire Fighters" to the Fire Chief requesting a $50 per month pay increase);
Union Exhibit D (1967-1968 "Collective Bargaining Brief of Bozeman Fire Fighters");
Union Exhibit E [July 2, 1968 minutes of the Bozeman City Commission reflecting that
Daniel Figgins appeared before the Commission to "further discuss budgetary letter
submitted to the Fire Chief where they also requested a $50 per month bas pay increase,"
compensation for a 48-hour work week and "reconsideration of leave priveleges" (sic.)];
Union Exhibit F (July 25 1968 minutes of Bozeman City Commission reflecting
agreement by Daniel Figgins to a pay increase of $30 per month). Union records indicate
that between 1968 and the first written agreement in 1976, the Bozeman Firefighters
engaged in bargaining with the City. Tr at 370:20-25.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 10
The bargaining unit and the City have a long-standing, productive working
relationship. There have been few formal grievances filed by the unit. Tr at 27: 21-25;
28:5-7. (Assistant City Manager Winn testimony that between 1984 through 2008, there
have been only two grievances filed by the Union). Bozeman and its fire fighters have
successfully negotiated a series of collective-bargaining agreements, both written and
oral, without strikes or interest arbitration. Id. at 28-29: 13-17.
STANDARD OF REVIEW:
Because this is a "contested case" as that term is defined in Montana's
Administrative Procedures Act, Sections 39-31-105 & 2-4-102(4), MCA, the standard of
the Board's review of the Hearing Officer's decision is governed by Section 2-4-621(3),
MCA:
The agency may adopt the proposal for decision as the
agency's final order. The agency in its final order may reject
or modify the conclusions of law and interpretation of
administrative rules in the proposal for decision but may not
reject or modify the findings of fact unless the agency first
determines from a review of the complete record and states
with particularity in the order that the findings of fact were
not based upon competent substantial evidence or that the
proceedings on which the findings were based did not comply
with essential requirements of law.
The purpose of this statute "is to prevent a reviewing body from substituting its
judgment for that of the fact finder." Dept. of Social and Rehabilitation Services v.
Shodair Hospital, 273 Mont. 155, 160, 902 P.2d 21, 24 (1995). A rejection of a hearing
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 11
officer's factual findings in violation of Section 2-4-621(3), MCA, constitutes an abuse of
discretion. Id. at 160, 902 P.2d at 24 (citation omitted).
"Substantial evidence is evidence that a reasonable mind might accept as adequate
to support a conclusion. It consists of more than a mere scintilla of evidence but may be
less than a preponderance." State Personnel Div., Dept. ofAdministration v. Child
Support Investigators, 2002 MT 46, ¶ 19, 308 Mont. 365, 43 P.3d 305, citing Strom v.
Logan, 2001 MT 30, � 23, 304 Mont. 176, 18 P.3d 1024.
ARGUMENT:
1) Findings of Fact Nos. 2 and 3 are Supported by Substantial Evidence:
The City first objection is to the first sentence in Finding of Fact No. 2 (that prior
to 2003, the written collective-bargaining agreements excluded the positions of chief and
deputy chiefs). That sentence is taken word for word from a stipulation agreed to by the
City and the Union in the first few minutes of the hearing. Tr at 4:21-24 (Hearing Officer
read into the record the following stipulation, "Prior to 2003, the written Collective
Bargaining Agreements excluded the positions of chief and deputy chiefs.")
The City next objects to the second sentence of Finding of Fact No. 2 (that there
was a "consolidation" of the police and fire departments in 2001 and the management
positions in the fire department were "renamed") because it supposedly does not fully
explain all of the ramifications of the change in the structure of the fire and police
departments into a department of public safety. Specifically, the City claims that 2001
management change was not a "consolidation" but rather a "reorganization," and that
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 12
Finding of Fact No. 2 is deficient because it does not state that "prior to the
reorganization, the bargaining unit excluded three positions and following the
reorganization it excluded only two." Bozeman's Initial Brief to Board of Personnel
Appeals at 10-11. This, according to the City was a "change to the bargaining unit (that)
renders the grandfather provision of the Act inapplicable." Id. Similarly, the City objects
to Finding of Fact No. 3 (that in 2005 the City reverted to using the titles of fire chief and
deputy chiefs) because that finding "does not capture either the magnitude or the
significance" of the City's decision in 2005 to revert to the previous structure of separate
fire and police departments. Id. at 11. The City claims the "magnitude" or "significance"
of the 2005 decision which was not properly detailed by the Hearing Officer "was that
the fire department returned to a three-person management team instead of two." Id.
First, the record reflects that whether it's termed a consolidation or a
reorganization, in 2001 after a fire chief and deputy chief retired, the City put the police
and fire departments into a department of public safety, appointed the police chief as the
director of the new department, and had two deputy directors working directly in the fire
department. Tr at 15:1-8. So, when the City operated under an ill-fated department of
public safety, there were, like before the "reorganization," actually three management
positions associated with the work of fire department — the public safety director and two
assistant directors — and after the City "went back to a traditional organizational
structure," Tr at 15:17-18, there were three management positions associated with the fire
department — a chief and two deputy chiefs.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 13
Second, nothing in Board's or the Court's analysis of the Act's grandfather clause
says that when an employer changes its management structure, the bargaining unit of the
employees below that management structure ceases to exist or is so drastically changed
that the grandfather clause is rendered inapplicable.
2) Finding of Fact No. 5 is Supported by Substantial Evidence:
The City next objects to Finding of Fact No. 5 (that a local organization of fire
fighters in Bozeman has consistently been known as the Bozeman Fire Fighters). There
is ample record evidence to support that finding.
Union vice president Norby testified that in preparation for the hearing, he
reviewed historical union records, many of which are located in the archives at the Renne
Library at MSU. Tr at 363-64:13-5. From those records, Norby carefully testified that he
could date the existence of a union of fire fighters in Bozeman back to 1939. Union
Exhibit B; Tr at 364:8-9.
Q: And since 1939, has — has there — from your review of the files, has there been a
local organization of firefighters?
A: Yes
Q: Okay. Has that local organization of firefighter continuously been affiliated with
the IAFF?
A: No
Q: What name has the local organization used?
A: Bozeman Fire Fighters Association.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 14
Q. And when they (the local fire fighters' union) were out of affiliation (with the
IAFF), did there remain a Bozeman Fire Fighters Association?
A: Yes.
Tr at 365-66:7-1. See also, Union Exhibit C (May 1968 letter from "Daniel L. Figgins,
Pres. Bozeman Fire Fighters"); Union Exhibit D ("Collective Bargaining Brief of the
Bozeman Fire Fighters"); Union Exhibit A at 2 (the current collective bargaining
agreement is between the City and "the IAFF Local 613 -- Bozeman Firefighters").
3) The Hearing Officer's Analysis of Section 39-31-109, MCA is Accurate:
Relying chiefly on Black's Law Dictionary, a case from New Mexico and case
from an intermediate Tennessee appellate court, the City claims that the grandfather
clause applies only to positions in existence on the effective date of the Act. That is not
what this Board and our Court have held.
As discussed above, this Board has held that Section 39-31-109, MCA, "applies to
the recognition of the bargaining agent as well as the ratification of existing bargaining
agreements;" In the Matter of Unit Clarification 91-77 at 1, quoting, In the Matter of
Retail Clerks International Locals 4, 57, 684 & 1573 v. Montana Department of
Revenue; it applies to "bargaining units existing at the time of the passage of the
legislation;" In the Matter of Unit Clarification 91-77 at 2; and, it "was and is used to
protect contracts and bargaining units in existence in 1973." In the Matter of Unit
Clarification 6-80 at 1. The Supreme Court agrees with the Board that the grandfather
clause protects "both bargaining units and agreements already in existence" at the time of
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 15
the passage of the Act. Billings Firefighters Local 521, 200 Mont. at 426, 651 P.2d at
630. Put simply, there is no decision of this Board or any Montana court holding that the
grandfather clause applies only to the title of positions in existence at the time of the
passage of the act. To the contrary, the Board and the Court have held consistently that it
applies to then -existing bargaining units, to contracts and to bargaining agents that were
engaged in bargaining prior to the effective date of the Act.
It is an "inescapable conclusion," Rec. Ord. at 7, that a bargaining unit of fire
fighters below the rank of chief existed since 1939 and that bargaining unit and the City
engaged in bargaining as early as 1968 and reached agreement, albeit orally, on wages
and benefits for fire fighters below the rank of chief, Union Exhibits C, D, E and F4 and
it continued to bargain with the City thereafter. Tr at 370:20-25. Thus, prior to the
passage of the Act, there was a bargaining unit, the unit was defined by reference to those
who were excluded and only the very top of management was excluded, and there were
valid and enforceable collective-bargaining agreements that covered all fire fighters
below the rank of chief. That unit is appropriate under Section 39-31-109, MCA unless
the grandfather statute does not apply pursuant to Unit Clarification No. 6-80.
'A collective-bargaining agreement need not be in writing to be valid and enforceable. NLRB v.
Scientific Nutrition Corp., 180 F.2d 447, 449 (9th Cir. 1950); John Wiley & Sons v. Livingston,
376 U.S. 543, 550-51 (1964); NLRB v. Ralph Printing & Lithographing Co., 433 F.2d 1058,
1061 (8th Cir. 1970), cert. denied, 401 U.S. 925 (1971)("a collective bargaining contract need not
be written to be enforceable"); Teamsters, Chauffeurs, Warehousemen & Helpers Local Union
524 v. Billington, 402 F.2d 510, 511, n. 3 (9th Cir. 1968); Warrior Constructors v. International
Union of Operating Engineers, 383 F.2d 700, 706 (5th Cir. 1967).
s
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 16
Unit Clarification No. 6-80 is actually a narrow decision that says the grandfather
clause does apply when there has been "such a change of exclusive representatives in a
grandfathered agreement and bargaining unit" where the phrase "such a change" means
specifically "an election and certification of a new exclusive representative." Unit
Clarification No. 6-80, 217 Mont. at 233, 703 P.2d at 864. Here there is no evidence that
bargaining unit was decertified, it continued to exist, there was no post -1973 Board
election decertifying the unit and certifying a new bargaining representative, and there
has been no change in the fact that locally -elected fire department employees have met
and discussed mandatory subjects of bargaining with the City's policy makers and have
reached agreements. The bargaining unit's affiliation and disaffiliation the IAFF did not
change the essential nature of the unit, Section 24.26.650(20(b) ARM (a change in
affiliation is not a substantial change in the nature of the bargaining unit where there is a
continuation of bargaining unit autonomy; local officers are retained; financial
arrangements are not substantially different under the affiliation than before; and,
procedures regulating grievance handling, voting and by-law changes are continued); the
City presented no evidence that affiliation or disaffiliation changed the way which the
local unit operated; and, even the current contract recognizes that IAFF Local 613 is
essentially synonymous with the Bozeman Firefighters. Union Exhibit A at 2 (the
agreement is between the City and "the IAFF Local 613 -Bozeman Firefighters").
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 17
The critical factors considered in City of Billings in reaching the conclusion that
inclusion of battalion chiefs in the bargaining unit created no actual substantial conflict
resulting in compromising the interests of any party to its detriment were:
and,
1) There were no strikes:
2) There were few formal grievances;
3) The department operated efficiently;
4) There was no disharmony in the bargaining unit and no internal union strife;
5) The bargaining unit employees wanted the battalion chiefs in the unit.
City of Billings, 200 Mont. at 427-28, 651 P.2d at 630-31.
All of these factors are present here. There is a long history of an excellent
working relationship between the bargaining unit and the City, there have been few
grievances, there have been no strikes, and there is no evidence of any split in the
bargaining unit whose members voted overwhelmingly in support of the Union's position
that battalion chiefs belong in the bargaining unit. Tr at 383:23-25
Thus, because a bargaining unit and bargaining agreements covering positions
below the rank of chief existed prior to the passage of the Act, the Hearing Officer was
correct in holding that the unit including battalion chiefs (who are below the rank of
chief) is grandfathered pursuant to Section 39-31-109, MCA and battalion chiefs are
properly in the unit.
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 18
CONCLUSION:
Since 1939, the fire fighters in Bozeman have been a part of a union. Montana's
collective-bargaining law, designed to encourage bargaining to the maximum extent
allowed by the law, was passed after Bozeman and its fire fighters had extensive and
positive experience with meeting, discussing wages and other matters and reaching
agreements — after they had extensive and positive experience with the process of
collective bargaining. The Act's grandfather clause allows those units that existed prior
to the passage of the law to continue to exist for as long as the bargaining unit continues
to exist.
Here the parties have defined the bargaining unit by reference to those excluded
and have excluded only those in the upper -most level of management. Here there is long
and productive working relationship between the City and the local union bargaining on
behalf of every fire fighter except the chief and deputy chiefs. When the City added three
mid-level fire fighter positions and filled them with three people the bargaining unit (all
of whom report to and are supervised by the agreed upon excluded chief and deputy
chief), it added new positions that fell within the scope of the pre -Act bargaining unit. A
bargaining unit of all fire fighters below the rank of chief and deputy chief existed prior
to the effective date of the Act and thus under Section 39-31-109, MCA all fire fighters
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 19
below the rank of deputy chief are properly included in the bargaining unit now.
Dated this day of September, 2014
Karl J. Englund
4`
CERTIFICATE OF SERVICE
r °P�,
This is to certify that on the day of September, 2014 the foregoing was
duly served upon the following by e-mail and by depositing the original and five copies
in the United States mail, postpaid, addressed as follows:
Board of Personnel Appeals
Department of Labor and Industry
P.O. Box 201503
Helena, Montana 59620-1503
E-mail: wknutson@mt.gov
'N
This is to further certify that on the 3 qday of September, 2014 the foregoing
was duly served upon the following by e-mail and by depositing a true copy thereof in the
United States mail, postpaid, addressed as follows:
Jason Ritchie
Michelle M. Sullivan
HOLLAND & HART, LLP
401 North 31St Street
Billings, Montana 59101-1277
E-mail: jritchie@hollandhart.com,
Karl J: Englund
RESPONDENT'S BRIEF TO BOARD OF PERSONNEL APPEALS Page 20