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HomeMy WebLinkAbout14- Petitioner City of Bozeman's Final Brief to Board of Personnel Appeals / City's Reply to the IAFF's BriefJason S. Ritchie Michelle M. Sullivan Holland & Hart LLP 401 North 31st Street, Suite 1500 P. O. Box 639 Billings, MT 59103-0639 Telephone: 406-252-2166 Facsimile: 406-252-1669 Attorneys for Petitioner STATE OF MONTANA BEFORE THE BOARD OF PERSONNEL APPEALS IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013: CITY OF BOZEMAN, Petitioner, u INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 613, Respondent. Case No. 1821-2013 PETITIONER CITY OF BOZEMAN'S FINAL BRIEF TO BOARD OF PERSONNEL APPEALS The City of Bozeman (hereafter, the "City" or "Bozeman") hereby submits its Final Brief to the Board of Personnel Appeals, pursuant to the Notice of Oral Argument and Scheduling Notice dated July 21, 2014. INTRODUCTION The Hearing Officer based his Recommendation in this case on the erroneous conclusion that the grandfathering provision of the Montana Public Employees Collective Bargaining Act (the "Act") applies to the Bozeman Fire Department's newly -created position of Battalion Chief. The City submitted its Initial Brief to this Board on August 14, 2014, arguing that the grandfather provision does not apply, and the Hearing Officer's Recommendation should therefore be rejected. The Union filed its Reply Brief on September 3, 2014. The Union's brief describes how this Board has taken the position (which has been adopted by Montana's high court) that the grandfather provision covers pre -1973 collective bargaining agreements, pre -1973 exclusive representatives, and pre -1973 bargaining units. See Union Br. at 7, n.2. Here, the collective bargaining agreement between the City and its firefighters, the exclusive representative of the City's firefighters, and the bargaining unit of the firefighters have all changed since July 1, 1973. Each of changes standing alone nullifies the application of the grandfather clause. Additionally, because the Battalion Chief position itself post-dates the 1973 enactment of the Act, the grandfather clause does not apply to that position. Accordingly, this Board must reject the Recommendation of the Hearing Officer, and remand this matter for further proceedings. ARGUMENT 1. THE BARGAINING AGREEMENT HAS CHANGED SINCE 1973. Strictly speaking, the language of Mont. Code Ann. § 39-31-109 grandfathers only "established collective bargaining agreements" that existed prior to July 1, 1973. It was only later, through case law, that the grandfather provision was interpreted to also include bargaining units and exclusive representatives. Nevertheless, it should be noted for purposes of this matter that it is undisputed that the bargaining agreement that exists today between the City and the City's Firefighters is not the same bargaining agreement that existed prior to July 1, 1973. See Union Br. at 9. Indeed, prior to that date, there was not even a written collective bargaining agreement between the City of Bozeman and the City's Firefighters. Id The grandfather clause is not applicable on this basis. II. THE EXCLUSIVE REPRESENTATIVE HAS CHANGED SINCE 1973. The current collective bargaining agreement between the City and its firefighters reads as follows: The Employer recognizes the Union as the exclusive bargaining agent for all combat firefighters and uniformed day personnel of the Bozeman Fire Department .... See Tab 6 to the City's Initial Brief. The "Union" is defined as "The IAFF Local 613 — Bozeman Firefighters." Id. Thus, the exclusive bargaining agent, and the exclusive representative, of the City's Firefighters is now The IAFF Local 613 — Bozeman Firefighters. But by the Union's own admission, The IAFF Local 613 — Bozeman Firefighters was not the exclusive representative at the time of the enactment of the Act. Rather, as early as 1968, there is evidence of a locally -controlled group bargaining with the City and arriving at some unwritten agreement for wages. See Union Br. at 10. But after voting in 1999 to cede that local control, the exclusive representative of the City's firefighters changed, and since that time the exclusive representative has been The IAFF Local 613 — Bozeman Firefighters. This change in exclusive representation cannot be ignored, as much as the Union would like to ignore it for purposes of this unit clarification matter. The move from complete local control to allowing representation by the IAFF did not come easily. As Chuck Winn testified at the hearing, at least one other time prior to 1999, this change was put to a vote of the City's firefighters and was rejected. But having made that decision, the Union must accept whatever consequences come as a result, and that includes the fact that the grandfather provision no longer applies to the City's firefighters. This result has been definitively established by the Montana Supreme Court, in the case of In the Matter of Unit Clarification No. 6- 80, MPEA v. Dept. ofAdmin, Labor Relations Bureau, 217 Mont. 230, 703 P.2d 862 (1985). In that case, prison employees had been represented previously by the American Federation of State, County, and Municipal Employees, AFL-CIO. But that representative was replaced with the Montana Public Employees Association ("MPEA") in November 1979. Given that change, the Labor Relations Bureau of the Montana Department of Administration filed a petition for unit clarification, seeking a determination that certain classes of employment positions at the prison were "supervisory employees" that should be excluded from the bargaining unit. 217 Mont. at 231, 703 P.2d at 863. In that case, the Board of Personnel Appeals held that the grandfather clause does not apply when there has been an election and certification of a new exclusive representative in what may otherwise have been a grandfathered agreement and bargaining unit. 217 Mont. at 233, 703 P.2d at 864. On appeal, the Board of Personnel Appeals argued that "a change of exclusive representation nulliftes the applicability of the grandfather clause as to preserving the unit," and that "the term `recognized,' in its technical labor vernacular, applies only to representatives and it therefore follows that, because units are not `recognized,' the legislature did not intend to preserve units by enacting the grandfather clause." Id (emphasis added). The Supreme Court agreed: This interpretation of the law is rational. The word `recognized" as used in § 39-31-109, MCA, is a term of art used in labor as referring t0 a representative. The BPA decision also is in line with relevant portions of the acts set forth above which, in effort to remove causes of strife and unrest, exclude supervisory employees from bargaining units. !d (emphasis added). The same facts exist here as existed in the No. 6-80 case, and the Union has done nothing to distinguish these facts or to show why the same analysis does not hold true here. Where there was once one exclusive representative for the City's firefighters, there is now another. That simple fact renders the grandfather provision a nullity. The Hearing Officer's Recommendation which is based on the applicability of that grandfather provision must be rejected. III. THE BARGAINING UNIT HAS CHANGED SINCE 1973. It is also undisputed that the recognition clause and therefore the bargaining unit has changed since 1973. In fact, it is difficult to determine precisely what the bargaining unit was in 1973, as the first written agreement between the City and its firefighters did not come about until 1976. However, the Union's position is that the bargaining unit in 1968 was "fire fighters below the rank of chief." See Union Br. at 16. Taking that as true, and assuming the same bargaining unit existed through July 1, 1973, the effective date of the Act, the unit has changed several times since then. As the Union admits, before 2003, the written collective bargaining agreements excluded not only the chief, but also the deputy chiefs. See Union Br. at 8. Given the change in the unit from "fire fighters below the rank of chief' in 1973, to all members of the Department except "the positions of chief and deputy chief' in later years, the grandfather clause is not applicable to this bargaining unit. Furthermore, the unit changed again in 2003, when the recognition clause was changed to the one that is in existence today, which covers "all combat firefighters and uniformed day personnel of the Bozeman Fire Department, except the Assistant Director of Public Safety/Fire Operations & EMS Services, and the Assistant Director of Public SafetylImpeetions." See Tab 6 of Initial Brief. Again, with this change in the bargaining unit, the grandfather clause can no longer be applied to the City's firefighters. The Hearing Officer's Recommendation which is based on the applicability of that grandfather provision must be rejected. IV. THE ACT DOES NOT PROHIBIT ADDITIONAL MANAGEMENT. It is also important to recognize that the Act in no way prohibits the addition of new levels of management as the Union suggests it does. In fact, the policy of the Act is to "promote public business," not to stifle it by creating barriers to growth. Since the effective date of the Act in 1973, the population of the City of Bozeman has doubled. The City's Fire Department has grown from a single station to three round-the-clock, fully -staffed stations. At any given time, there are twelve firefighters on duty across the three stations, and each station has twelve union fire fighters assigned to it, rotating through the three shifts. These 36 firefighters arejoined by three other Union employees — a fire inspector, the training officer, and the emergency manager —that make up the workforce of the City's Fire Department. But despite the substantial growth in the number of the City's residents, the number of stations, and the number of firefighters, the City's Fire Department only recently pushed for additional funding to add more members to its management team so that it could more effectively control and oversee the needs of the Department and the City. The three Battalion Chief positions were created forty years after the passage of the Act, in direct response to the needs of the City and its Fire Department. Yet the Union would have this Board find that because a City with fewer than 20,000 residents and only a single fire station was effectively managed with only three management -level employees, a City now pushing 40,000 residents with three stations and 36 employees must make due with the same. Extending the Union's logic ad infinitum, even as the City continues to grow, the management team of the Bozeman Fire Department is forever limited to only three positions. Such a result was clearly not the intent of the legislature when it enacted the Act with its grandfather provision in 1973, and neither this Board nor the Montana Supreme Cowl has ever interpreted it in that fashion. Rather, the grandfather clause was included in the Act to allow positions that were already in a bargaining unit as of July 1, 1973, to stay in that bargaining unit, so long as there was no actual substantial conflict. City of Billings v. Billings Firefighters Local No. 521, 200 Mont. 421, 651 P.2d 627 (Mont. 1982). In fact, in a matter decided by this Board relying on the Billings Firefighters case, it was held that the grandfather provision did not apply to a position that had only been in a bargaining unit "since 1975," which was "after the date for the grandfathering protection of Section 39-31-109." See In the Matter of Unit Clarification No. 12-97, (July 11, 1997). Indeed, even the dissent in Billings Firefighters, quoted by the Union in its brief, highlights the fact that the Billings Firefighters case dealt only with supervisory and management positions that were already "part of a bargaining unit in existence prior to the 1973 effective date of the Act." See Respondent's Br. at 6. It is undisputed that as of the date of the 1973 enactment of the Act, the position of "Battalion Chief' was not part of any bargaining unit of the Bozeman Fire Department, The Battalion Chief position was added long after that date and is therefore not afforded "grandfathering protection" under the Act. Even if the bargaining unit were still subject to the grandfather provision, the Battalion Chief position itself is not, and cannot be deemed to be included in the bargaining unit based on that analysis alone. V. THE UNION'S "ADDENDUM" IS AN INAPPROPRIATE SUBMISSION TO THE BOARD, AND RAISES MATTERS THAT ARE NOT BEFORE THE BOARD AT THIS TIME. A. The Addendum Is Procedurally Improper, and Raises Substantive Matters Not Yet at Issue before the Board. The administrative rules governing this proceeding limit briefs to 20 pages. A.R.M. 24.26.211. The Union's Reply Brief is a full 20 pages in length. However, the Union has also submitted along with its Reply Brief an "Addendum," which includes its own recitation of the facts in this matter and also further argument. By use of its unauthorized "addendum," the Union has improperly submitted an additional 10 pages of briefing to the Board without leave to do so. Beyond the procedurally inappropriate use of this addendum, the substance of the document itself is beyond the scope of the matters pending before the Board. The Hearing Officer has made no findings or conclusions as to whether the Battalion Chief position is a supervisory, management, or confidential position. Nevertheless, the Union apparently wants to bypass all requisite procedures and argue to the Board about issues on which the Hearing Officer has not yet even offered findings or conclusions. The Addendum should be stricken both on procedural and substantive grounds. B. The Union's Analysis Is Incorrect. To the extent the Board is interested at this time in hearing argument as to whether the Battalion Chiefs are supervisory, management, or confidential employees, the City provides the following analysis. I. The Battalion Chiefs Are Supervisory Employees. The definition of "public employee" specifically excludes a supervisory employee, a management official, or a confidential employee. Mont. Code Ann. § 39-31-103(b). A "supervisory employee" is defined as follows: [A]n individual having the authority on a regular, recurring basis while acting in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to effectively recommend the above actions if, in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment. Mont. Code Ann. § 39-31-103(l 1)(a). The authority described in Mont. Code Ann § 39-31-103(1 1)(a) is the only criteria that may be used to determine if an employee is a supervisory employee. The use of any other criteria, including any secondary test developed or applied by the National Labor Relations Board or the Montana Board of Personnel Appeals, may not be used to determine if an employee is a supervisory employee under this section. Mont. Code Ann. § 39-31-103(11)(b). The statutory definition of "supervisory employee" is in the disjunctive, and it is therefore sufficient for supervisory status to be established based on only one of the statutory criteria. See, e.g., Fairfield School Dist, v. Laborers Intl Union ofN. Am. Local 1686, Case No. 414-2006, 9 (Mont. Brd, of Personnel Appeals, Mar. 30, 2007); Jefferson Cray. v. Jefferson Cary. Public Employees Local 4538, MEA -MFT, AFT, AFL-CIO, Case No. 726-2006 (Mont. Brd. of Personnel Appeals, Oct. 30, 2006). Any employee "with authority on a regular, retuning basis to perform at least one of the statutory criteria for the employer, using independent judgment, is a supervisor." Mont. Historical Soc'y v. MEA -MFT, Case No. 299-2009 (Mont. Brd. of Personnel Appeals, Apr. 30, 2009). The Board of Personnel Appeals has consistently found Battalion Chiefs to be supervisory employees. See, e.g., City of Great Falls v. Intl Assn of Firefighters Local Union No. 8, Cause No. CDV-96-1472, Montana Eighth Judicial Dist. Crt. (2000); City of Billings v. Billings Firefighters Local No. 521, 200 Mont. 421, 651 P.2d 627 (1982) (overruled on other grounds). At the hearing, there was substantial testimony demonstrating that the Battalion Chiefs have the authority on a regular, recurring basis to perform many of the statutory criteria. All of the witnesses testified that the Battalion Chiefs are in charge of the day-to-day operations of the Fire Department. This includes supervision of their crews, responsibility for all apparatus and equipment, management of daily operations, and incident command. The Battalion Chiefs testified that they have the authority, and in fact have, transferred firefighters from one crew to another, and from one station to another. The Battalion Chiefs testified that they are responsible for evaluating the captains that they supervise, and in doing so, have input into whether those captains might ultimately be promoted. Chief Shrauger testified that he intends to appoint one of the Battalion Chiefs as the hiring supervisor during the next round of hiring for firefighters. The Battalion Chiefs may recommend discharge of one of their crew members. They are also responsible for disciplining members of their crew, and have the authority to issue verbal and written warnings and reprimands. Chief Criner offered testimony about how he considered issuing a verbal warning for an incident within his battalion, but in his discretion decided to handle the matter differently. Chief Bos likewise testified about when he reprimanded a firefighter during training, exercising his discretionary authority to discipline those under his command. The Battalion Chiefs are supervisory employees, and as such, must be excluded from the bargaining unit. 2. The Battalion Chiefs Are Management Officials. A "management official" is defined as "a representative of management having authority to act for the agency on any matters relating to the implementation of agency policy." Mont. Code Ann. § 39-31-103(7). In order for an employee to fit the management exemption, the employee must "both formulate and effectuate management policies by expressing and implementing employers' decisions." Prof'l Interdisciplinary Fed'n Local 3399, MEA -MFT, NEA, AFT, AFL -CLO v. Mont. Dept. of Public Health and Human Services, Mont. Developmental Ctr., 1848-2005, 7 (Mont. Brd. of Personnel Appeals) (citing Palace Laundry Dry Cleaning Corp., 75 NLRB 320, 323 (1947)). Such employees "must exercise discretion within, or even independently of, established employer policy and must be aligned with management." !d at 8 (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 286-87 (1974)). There was ample testimony at the hearing that the Battalion Chiefs are key management employees, who regularly attend weekly tactical meetings of the leadership team, as well as monthly strategic meetings of the leadership team. The Battalion Chiefs are not only expected to help formulate management policies, but they are responsible for the implementation of these policies. The Battalion Chiefs fulfill this responsibility by ensuring that equipment is response ready, by supervising their captains and holding them accountable, and by checking the accuracy and completeness of documentation and reports, among other things. Battalion Chiefs interpret Fire Department policies and procedures when there are disputes over their meaning. And finally, the Battalion Chiefs routinely exercise their discretion in determining when and whether to require their crews to follow Fire Department policy. The Battalion Chiefs are management officials, and should be excluded from the bargaining unit. 3. The Battalion Chiefs Are Confidential Employees. A "confidential employee" is any person "found by the board to be a confidential labor relations employee ...... Mont. Code Arm. § 39-31-103(3). A confidential labor relations employees is one "who assist[s] and act[s] in a confidential capacity to persons who formulate, determine, and effectuate management policies in the area of labor relations" Mont. Public A.ss'n v. City of Great Falls, Case No. 810-2005, Findings of Fact, Conclusions of Law, and Proposed Order, 7 (Mont. Brd. of Personnel Appeals) (quoting B.F. Goodrich Co., 115 NLRB 722, 724 (1950. Thus, if the employee is expected to and does act in a confidential capacity in 10 the normal course of his or her duties, then that employee is considered a confidential employee. Id. Both tests must be met: "the employee must assist an official who formulates, determines, and effectuates labor relations policies and must have access to confidential labor relations information in the normal course of employment." Id. at 8. Chief Shrauger testified that after the Battalion Chiefs were promoted last year, a Captain filed a grievance and that grievance went directly to the Battalion Chief to respond, so the Battalion Chiefs have already been involved in the grievance process. Chief Shrauger also testified that the three Battalion Chiefs are members of the management team on the Labor - Management Committee. As for the bargaining process, the current Collective Bargaining Agreement was negotiated before the creation of the Battalion Chief Position, and is effective through the end of fiscal year 2015. As Assistant City Manager Chuck Winn testified, he fully anticipates that the Battalion Chiefs will be a part of the City's management team during the negotiations to assist the city in formulating its position in negotiations, and that the Battalion Chiefs will have a seat at the bargaining table. Accordingly, the Battalion Chiefs are confidential employees, and as such, should be excluded from the bargaining unit. CONCLUSION In 1973, the City's firefighters had only an unwritten understanding with the City with respect to their wages. Today, they work under an extensive, negotiated written collective bargaining agreement. In 1973, the City's firefighters exercised complete local control when they approached the City Commission asking for an increase in their pay. Today, they are part of a massive labor organization —the International Association of Fire Fighters—and the The IAFF Local 613 - Bozeman Firefighters is the exclusive bargaining representative of the City's firefighters. 11 In 1973, the bargaining unit included everyone but the fire chief. Since then, the composition of the unit has changed several times, and today excludes several members of the Department along with the Chief. In 1973, there were no Battalion Chiefs. Today, there are three. Much has changed over the forty -plus years since the Act was passed. Those changes mean that the grandfather provision of the Act simply has no application to the City's firefighters. Because the Hearing Officer's Recommendation that the Battalion Chiefs are part of the bargaining unit is premised on the faulty conclusion that the grandfather provision applies, that Recommendation must be rejected. The City asks the Board to remand this matter to the Hearing Officer for further consideration pursuant to the Board's direction, to conduct any further proceedings as necessary, and to conform his proposed recommendation to the direction provided by the Board. DATED this 24th day of September, 2014. Jason S. Rite Michelle M. Sullivan Holland & Hart LLP P. O. Box 639 Billings, MT 59103-0639 Attorneys for Petitioner 12 CERTIFICATE OF MAILING This is to certify that the foregoing was mailed to the following persons by United States mail, postage prepaid on the date herein, as follows: ORIGINAL TO: Board of Personnel Appeals Department of Labor and Industry P. O. Box 201503 Helena, MT 59620-1503 COPY TO: Karl J. Englund Karl J. Englund, P.C. 401 North Washington Street P.O. Box 8358 Missoula, MT 59807 Dated this 24th day of September, 2014. 71 a241- 1.d.x