HomeMy WebLinkAbout14- International Association of Fire Fighters, Local 613 Final Order OCT 2 9MU4
STATE OF MONTANA
DEPARTMENT OF LABOR AND INDUSTRY
BEFORE THE BOARD OF PERSONNEL APPEALS
IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013 (1821-2013)
CITY OF BOZEMAN
Petitioner,
-vs - FINAL ORDER
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS,LOCAL 613
Respondent.
BACKGROUND AND PROCEDURAL HISTORY
On June 6, 2013,the City of Bozeman fled a petition for unit clarification requesting the
Board of Personnel Appeals (the Board) exclude three newly created positions of battalion chief
from the Bozeman Fire Fighters bargaining unit, International Association of Fire Fighters,Local
613 (the Union). The Union contested the request for unit clarification and the matter proceeded to
a contested case hearing before Heating Officer Gregory Hanchett.
On June 6,2014, the hearing officer issued his Findings of Fact;Conclusions of Law;and
Recommended Order denying the City of Bozeman's request for unit clarification. The City of
Bozeman filed timely objections for the Board's consideration.The parties briefed the issues and
presented oral argument before the Board on October 16,2014.Attorney Karl Englund appeared
on behalf of the Union and attorney Jason Ritchie appeared on behalf of the City of Bozeman.
STANDARD OF REVIEW
When reviewing a hearing officer's decision,the Board is bound by Mont. Code Ann.
2-4621(3):
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 agency may accept or reduce the recommended penalty
in a proposal for decision but may not increase it without a review of the complete record.
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DISCUSSION
Upon a thorough review of the complete record, the Board fords no reason to reject or
modify the findings of fact entered by the hearing officer. The City of Bozeman failed to support its
claim that the evidence did not support Findings of Fact Nos. 2, 3 and 5. The Board agrees with the
Union that the record provides competent substantial evidence to support Findings of Fact Nos. 2,
3and 5.
Upon consideration of briefs and oral arguments presented by the parties,the Board finds
no reason to reject or modify the conclusions of law reached by the hearing officer. The Board
agrees with the hearing officer that the grandfather clause contained in Mont. Code Ann. §39-31-
109 applies to this bargaining unit. The test developed by the Board and approved by the Montana
Supreme Court, "allows for grandfathering and also prevents conflicts intended to be avoided by the
exclusion of supervisors and management officials from the unit" City of Bilfings v. Bilkngr Firefighters
Local 521 (1982),200 Mont. 421,426,651 P.2d 627,630.
The Union provided evidence sufficient to establish its continued existence predating the
1973 grandfather clause,regardless of its varying affiliationwith the International Association of Fite
Fighters. The hearing officer concluded, and the Board agrees,that such variations in affiliation are
irrelevant when the essential nature and function of the bargaining unit has remained unchanged.
The bargaining unit continuously included all Bozeman firefighting personnel except the chief and
deputy chief. Further, the majority of the work performed by the newly created batalhon chief
positions had been performed by bargaining unit members prior to the reorganization. Through this
petition for unit clarification,the City of Bozeman is attempting to reshape the bargaining unit by
excluding employees other than the chief and deputy chief.
Because the grandfather clause applies to this bargaining unit, the positions of battalion chief
cannot be excluded without a showing that their continued inclusion in the bargaining unit creates
an actual substantial conflict. Id at 427, 651 P.2d at 630. The hearing officer concluded, and the
Board agrees,that the City of Bozeman failed to make such a showing.
ORDER
Pursuant to Mont. Code Ann. § 2-4-621(3) and Admin. R. Mont. 24.26.224(3),the Board
adopts the hearing officer's Findings of Fact;Conclusions of Law;and Recommended Order. The
petition is hereby DISMISSED.
DATED this_d 7'" day of October 2014.
BOARD OF PERSONNEL APPEALS
By:_ ® A At.. c�,.:��u
Anne . Mac`�nTyre Presidmg�er
Moore,Reardon and Nyman concurred.
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NOTICE: You may be entitled to judicial review of this Orden Judicial review may be obtained
by filing a petition for judicial review with the district court no later than thirty (30)
days from the service of this Order.Judicial Review is pursuant to the provisions of
Section 2-4-701,et seq.,MCA.
CERTIFICATE OF MAILING
I 44-u'LA /.Lr.'QOYI . do hereby certify that a true and correct copy of this
document was mailed to the following on the a 7M day of October 2014:
Jason Ritchie Kati Englund
Attorney at Law Attorney at Law
P.O. Box 639 P.O. Box 8358
Billings,MT 59103 Missoula,MT 59807
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