HomeMy WebLinkAbout14- Supplement to the IAFF's Brief / Karl Englund- Respondent's Addendum to its Board of Personnel Appeals Br...Karl 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
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,
Case No. 1821-2013
RESPONDENT'S ADDENDUM TO
ITS BOARD OF PERSONNEL
APPEALS BRIEF
As stated, the Hearing Officer's recommended order found that the bargaining unit
was grandfathered under Section 39-31.109, MCA. Accordingly, he did not `reach the
legal conclusion" of whether the battalion chiefs were supervisors, management or
confidential employees, although he "tend(ed) to agree" with the Union that `there are
not sufficient concrete examples of utilizing the supervisory or management power on a
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL, APPEALS BRIEF Page t
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regular, recurring basis nor do the positions art in confidential capacities in the ordinary
course of their duties." Rea. Ord. at 6, n.2.
Nonetheless, in its opening brief, the City makes a number of claims about the
duties and authorities of the battalion chiefs which are not supported by the record.
While the Union fully appreciates that the duties of the battalion chiefs are not the critical
issue before the Board, we provide the following summary of the testimony and factual
findings (to which the City has not properly objected) of what battalion chiefs in
Bozeman actually do on the job:
The Bozeman fire department has three fire stations; each staffed 24 hours per
day, 365 days per year. Id. at 3, T9; 7Y at 92-93:25-3. Fire fighters are organized into
three "shifts," each shift consisting of two engine companies and one ladder company.
One shift in on duty every day and one company is assigned to each station every day.
Rea. Ord. at 3,T9; Tr at 93. A company consists of a caption, an engineer (fire
fighter/equipment operator) and two fire fighters. Id. t
Captains, engineers and fire fighters work 48 hours on duty followed by 96 hours
off- duty. Id. at 92:22-24. They are assigned to their shifts and to their companies on a
long-term basis so that captains work with the same engineers and fire fighters on a
consistent basis. Rea. Ord. at 3,T 10; Tr at 111-112:25-9. However, on any given work
day, when companies are short-staffed due to days off, injury or illness, employees are
' Accordingly, Bozeman's fire department employs nine captains, nine engineers and 18 fire
fighters, all of whom are in the bargaining unit. Tr at 97:6-12. The department also has a
training officer, a disaster and emergency services staff captain, and a building/life safety
specialist who are not assigned to one of the three shifts but who are in the bargaining unit. Id. at
97:17-25
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 2
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temporarily reassigned by the captains from one company to another to equalize the
number and qualifications of employees assigned to each company. Rec. Ord. at 4,¶10;
Tr at 109-110. Additionally, an unstated number of employees were shuffled from one
company to another as a result of the movement within the department when the three
battalion chiefs were promoted from captain, two fire fighters and an engineer were
promoted to captain and three new fire fighters were hued to fill three vacancies. Rec.
Ord. at 4, ¶10. Otherwise, there is no evidence that employees are reassigned or
transferred or moved from one shift or one company to another as a matter of course or as
a disciplinary measure.
The City created the position of battalion chief on paper in 2007 after the passage
of a mill levy that funded the equipment and positions for a third fire station, Tr at 20: 7-
25, and based on what the City perceived as the resultant need for better coordination and
communication among the nine companies and the need for 24/7 "command coverage."
Id. at 45-46:23-12. Battalion chiefs work the same 48/96 schedule as other combat
personnel and they too are assigned to their shifts on a long-term basis so that they work
consistently with the same three captains and companies. Rec. Ord. at 4,112.
Battalion chiefs coordinate the work of their shift, ensure effective communication
among the three companies and ensure that all the companies follow department policies
and procedures. Id. Battalion chiefs have the authority to assume command on all calls
and are required to respond to calls on Interstate 90, cardiac calls and calls involving two
or more companies. Tr at 114:2-16. When they assume command, battalion chiefs
determine firefighting tactics and direct the captains to perform the tasks necessary to
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 3
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accomplish those tactics. Id. at 69:12.18 (when a battalion chief acts the incident
commander, he tells firefighters "where to go and what to do."); Id. at 129-130:13-
3(battalion chief as incident command tells fire fighters where to go and what to do).
Battalion chiefs will evaluate the captains (although those evaluations have not yet
been done), Id at 120:7-9, but the evaluation makes no recommendation for promotion,
demotion, pay increase or any tangible change in job status. Id. at 120-21:21-4. They
review time -sheets and incident reports submitted by the employees on their shift for
completeness and accuracy. Id. at 122:1; Id. at 72:11-17. Battalion chiefs monitor the
work of various committees (which are made up of fire fighters and generally chaired by
captains). They are the highest ranking officer on shift when the chief and deputy chiefs
are not on duty or in town. The battalion chiefs have been informed that they have the
unilateral authority to issue verbal or written reprimands, although none of them have
done so.
Battalion chiefs participate in weekly and monthly department management team
meetings. Id. at 85:20.24; Id. at 88:6-10. They are each issued a credit card with a
$1,000 total spending limit (or $3,000 total for all three battalion chiefs) out of a total city
budget ofjust over $75 million, a general fund budget of $26.8 million and a fire
department budget of $4.9 million. Id. at 384.7-14.
There was no evidence that battalion chiefs have the authority to hire, suspend,
lay- off, recall, promote, discharge, or reward other employees. There are no examples of
battalion chiefs hiring, suspending, laying off, recalling, promoting, discharging or
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 4
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rewarding other employees. The City produced no evidence or examples of a battalion
chief issuing a verbal or written reprimand?
There was testimony that battalion chiefs were involved in the process by which
the deputy chief of operations transferred or reassigned some personnel from one shift or
from one company to another when vacancies were created and filled as it result of the
promotions of captains to battalion chief and fire fighters to captains and the hiring of
new fire fighters. Those reassignments were based on equalizing qualifications (i.e.
paramedics, engineers, and probationary fire fighters) across the companies (i.e. to insure
that there was one engineer assigned to each company and that paramedics and
probationary employees were placed evenly across the shifts and companies), Id. at 270-
71:12-19, and, in the end, the reassignments were done by "pulling stuff out of a hat." Id.
at 326:7-9.
There was no evidence or examples of battalion chiefs having any access to
confidential labor relations information in the normal course of employment. Assistant
City Manager Winn testified that if he is the lead negotiator for the City the next time the
parties negotiate, he intends to have the battalion chiefs "at the table," Id. at 17:8-23, but
neither the decision to have him serve as the City's lead negotiator nor the decision to
have battalion chiefs at the bargaining table has been made. Id. at 30-31. Thus, there are
a Battalion Chief Bos testified that he told a fire fighter who he believed was rude to a trainer, to
stop the mde behavior, but there is no evidence that this incident resulted in a verbal or written
reprimand. Id. at 358:6.12. There was no testimony at all about the impact of a verbal or written
warning on an employee's job status.
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF page 5
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no examples of battalion chiefs participating in any manner as a City representative or as
part of the City's bargaining team in negotiations with the Union.
Based on this record, it is cleat why the Hearing Officer "tend(ed) to agree" with
the Union that supervisory, managerial or confidential status had not been proved.
The law is well-established that the person claiming that a position is not covered
by the act bears the burden of proof and must meet that burden under exacting standards.
Bennitt Industries, Inc„ 313 NLRB 1363 (1994) (supervisory status); Union Square
Theater Management, 326 NLRB 70, 71 (1998) (management official); Ford Motor Co.,
66 NLRB 1317, 1322 (1946) (confidential employee). This Board requires examples of
the actual exercise of the statutory criteria. MEA -MFT v. Montana Department of
Corrections, UD No. 2-2007, BoPA Amended Final Order at 4.
There are ten statutory indicia of supervisory status — hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline. Section 39-31-103(11),
MCA. Here, there is no evidence that battalion chiefs have the authority on a regular and
recurring basis to hire, transfer, suspend, lay-off, recall, promote, discharge or reward
other employees. Hiring and promotions are done using an ad hoc joint management
labor committee process whereby applicants are scored and the rankings are then given to
the chief and to the city manager for their independent decisions. Participating in
interviews, scoring applicants during interviews and making recommendations for hiring,
through a hiring committee, does not prove supervisory status. Children's Farm .Home,
324 NLRB 61, 64 (1997). Lay-offs and recalls are governed by statute which requires
they be done strictly by seniority. Section 7-33-4125, MCA. While battalion chiefs have
RESPONDENT'S ADDENDUM TO ITS DOARD OF PERSONNEL APPEALS BRIEF Page 6
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the authority to give written or oral warnings, there are no examples of them ever doing
so and there was no evidence as to the consequences of verbal or written warnings. "The
issuance of reprimands or warnings—which themselves carry no consequences in terms
of loss of hours or pay—are not, without more, evidence of supervisory authority; to be
so, they must be the basis of later personnel action without independent investigation or
review." Trinity Continuing Care Services d/b/a Sanctuary at Mcauley, 359 NLRB No.
162, slip op. at 4 (2013)(emphasis in original). Statute dictates that only the chief or an
assistant chief can suspend or terminate a fire fighter and there are no examples of a
battalion chief ever being involved in a suspension or termination. Section 7-33-4123,
MCA; Phillips v. City ofLivingston, 268 Mont. 156, 885 P.2d 528 (1994). The City has
no reward program.
The daily movement of employees from one station to another to account for
temporary absences and the more permanent movement of employees caused when
vacancies were created and filled when the battalion chiefs were hired were all done to
equalize the workload and qualifications across the shifts. Work assignments or transfers
made on the basis of equalizing workloads is routine in nature and does not involve the
exercise of independent judgment. Oakwood Healthcare, 348 NLRB 686, 694 (2006).
Assigning employees according to their known skills is not evidence of independent
judgment. Shaw, Inc., Rapid River Enterprises, Inc., 350 NLRB 354, 356 (2007).
Assigning employees based "on whether the employee has the craft skill required for the
particularjob" does not involve independent judgment necessary for supervisory status.
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 7
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Brown & Root, Inc., 314 NLRB 19, 21 (1994).
Clearly, when battalion chiefs command an incident or see something at a station
that needs to be done, they have the authority to (and they do) tell other employees what
to do. However, one employee telling another employee what do on a specific job is
"direction." See, e.g. Entergy Mississippi, Inc., 357 NLRB No. 174, slip op. at 8
(distinguishing between the "assignment" of "significant overall duties" and "directing"
the employee to perform tasks within that assignment) and "direction" is not now
included in (because it was specifically removed from) Montana's law setting the criteria
for supervisory status. Compare Section 39-31-103(11), MCA (2003) and Section 39-31-
103(11), MCA (2013). The NLRB explains the meaning of "direction" (an indicia of
supervisory status under federal law) as follows: "If a person on the shop floor has 'men
under him,' and if that person decides 'what job shall be undertaken next or who shall do
it,' that person is a supervisor, provided that the direction is both 'responsible' ... and
carried out with independent judgment." Oakwood Healthcare, supra, 348 NLRB at 391.
In other words, "direction," in contrast to "assigntnent," involves the delegation of tasks
as opposed to overall duties. Id at 390. Here, the battalion chiefs clearly have the
authority, and have exercised the authority, to delegate tasks to fire fighters — to tell them
"what job shall be undertaken next [and] who shall do it." However, the evidence that
battalion chiefs have the authority to order employees to do tasks may prove "direction,"
but direction is not indicia of supervisory status in Montana.
Similarly, Montana law states that what the NLRB calls "secondary indicia" of
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 8
supervisory status "may not be used." Section 39-31-103(11)(h), MCA. Battalion chiefs
are, at times, the highest-ranking employee on the job, but the status of being the highest-
ranking employee on thejob is one of the secondary indicia of supervisory status. St.
Francis Medical Center -West, 323 NLRB 1046, 1047 (1997). Battalion chiefs attend
department and city management team meetings, but attending management meetings is a
secondary indicator of supervisory authority. Dean & Deluca New York, Inc., 338 NLRB
1046 (2003).
Managerial officials are only those who both "formulate and effectuate
management -policies by expressing and making operative the decisions of their
employer." NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974). There are no
examples of the battalion chiefs actually making fire department policy, entering into
agreements on behalf of the City or acting independently of City and fire department
policy. The battalion chiefs' $1,000 spending authority is tiny compared to the overall
City budget.
A confidential labor relations employee is one who assists an official who
formulates, determines, and effectuates labor relations policies and has access to
confidential labor relations information in the normal course of employment. UC 2-87,
Livingston School District No.4 and I v. Montana Education Association/Livingston
Classified Employees Association. The only testimony about battalion chiefs as
confidential employees came from Assistant City Manager Winn who said that they may
be involved in future negotiations. Those who at some time in the future may function as
RESPONDENT'S ADDENDUM TO ITS BOARD OF PERSONNEL APPEALS BRIEF Page 9
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confidential employees but who are not doing so at the time of the determination are not
confidential employees. American Radiator & Sanitary Co., 119 NLRB 1715, 1719
(1958).
Dated this 5 day of September, 2014
Karl J. Englund
CERTIFICATE OF SERVICE
Qb.
This is to certify that on the IL: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,
0,
This is to Sather cert* that on the : day 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 31`r Street
Billings, Montana 59101-1277
E-mail: jritchie@hollandhart.com,
Karl J. Englund
r
RESPONDENT'S ADDENDUM TO rrS BOARD OF PERSONNEL APPEALS BRIEF Page 10