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STATE OF WASHINGTON |
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BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION |
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In the matter of the petition of: |
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THE ASSOCIATION OF STUDENT FIREFIGHTERS |
CASE NO. 1239-E-77-244 |
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Involving certain employees of: |
DECISION NO. 461-PECB |
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MC LANE FIRE DEPARTMENT (THURSTON COUNTY FIRE PROTECTION DISTRICT NO. 9) |
DIRECTION OF CROSS-CHECK |
APPEARANCES:
MR. FRANKLIN DENNIS, attorney at law, appeared on behalf of the petitioner.
Donworth, Taylor & Co., management consultants, by MR. RICHARD N. BURT, and MR. MATTHEW D. DURHAM, appeared on behalf of the employer.
Bean, Gentry & Rathbone, by MR. WARD J. RATHBONE, attorney at law, appeared on behalf of intervenor International Association of Firefighters Local 2465.
On November 16, 1977, the Association of Student Firefighters filed a petition with the Public Employment Relations Commission for investigation of a question concerning representation of employees. The bargaining unit claimed to be appropriate was described as:
"Included: All personnel employed by the McLane Fire District who fall under the classification of "Student Firefighter".
Excluded: All other persons - including Duty Officers, Volunteers, Chief and Assistant Chief employed by the McLane Fire Dist.”
A hearing was opened in the matter on March 27, 1978 before Win E. Key, Hearing Officer. The hearing was recessed at the request of the parties to enable them to obtain legal counsel, and was reconvened and concluded on April 27, 1978 before the Hearing Officer and the Executive Director.
BACKGROUND
The "McLane Fire District" is officially known as Thurston County Fire Protection District No. 9. All parties concur that "McLane" is a public employer within the meaning of RCW 41.56.
McLane employees "full-time firefighters" who are covered under the "LEOFF" pension system created by RCW 41.26. Some of those employees work a 56 hour work week consisting of 24 hours on duty followed by 48 hours off duty. McLane has recognized International Association of Firefighters (IAFF) Local 2465 as the exclusive bargaining representative of all full-time uniformed employees of the fire district classified as firefighters and firefighter/EMT's. McLane and the IAFF are parties to a collective bargaining agreement executed on October 19, 1977 and effective until June 30, 1979.
The Evergreen State College is a four-year college of the State of Washington. Its campus lies within the geographical territory of Thurston County Fire Protection District No. 9. The fire district and the college have entered into an interlocal contract under which the college contracts with the fire district for fire protection services. Under the terms of that contract, the fire district employs ten students from the college who work primarily on fire suppression and aid calls on the college campus, operating equipment purchased directly or indirectly by the college and manning a fire station provided by the college on its campus.
The Association of Student Fire Fighters is an employee organization formed by persons employed as "student firefighters" for the purpose of collective bargaining. Following refusal of its recognition requests by the fire district, it filed a petition and a sufficient showing of interest with the Commission.
POSITIONS OF THE PARTIES
The petitioner has advanced two alternative lines of argument. Based on the fact that the student firefighters wear uniforms while on duty and a claim that they work a weekly schedule approaching 40 hours (39.9 hours, 34.9 hours and 41.6 hours at various points in the record), the petitioner suggests that the student firefighters may belong in the IAFF unit. Absent inclusion in that bargaining unit, the petitioner contends that the student firefighters are nevertheless employees within the meaning of RCW 41.56, and that they are entitled to bargain their wages, hours and working conditions with the McLane fire district. The petitioner raised and rejected the possibility that the student firefighters are employees of the college, pointing to the elements of control vested in the fire district.
The employer contends that the petitioned-for unit is inappropriate, based on three lines of argument. First, the employer contends that the student firefighters are not "uniformed personnel" as defined by RCW 41.56.030(6). Second, the employer contends that the Commission decisions rejecting a fragmentation of bargaining units prohibits the creation of a separate bargaining unit here. Third, the employer argues that the student firefighters have a community of interest, if at all, only with the volunteer firefighters associated with the fire district.
IAFF Local 2465 points out the numerous differences in wages, hours, working conditions and pension system coverage between the employees it represents and the student firefighters. Local 2465 contends that accretion of the student firefighters to its existing unit would not be appropriate. Local 2465 makes reference to the existence of a contract bar by reason of its collective bargaining agreement. Particularly relying on the limited term nature of the student firefighter employment (a four-year period), the IAFF joins the employer in the view that the petitioned-for unit is inappropriate under RCW 41.56.060.
DISCUSSION
The "accretion" question can be disposed of easily. RCW 41.56.030(6) defines "uniformed personnel" by reference to RCW 41.26.030, which is in turn the coverage provision of the State's "Law Enforcement Officer and Fire Fighter" (LEOFF) pension system. The mere wearing of a uniform while on duty or employment in one of the traditionally paramilitary departments of local government does not qualify one as a "uniformed" employee entitled to the impasse remedies established by RCW 41.56.430 to .490. The existence of the distinctly different impasse procedures is sufficient reason to avoid the co-mingling of LEOFF and non-LEOFF employees in a single bargaining unit. The student firefighters are not covered by the LEOFF system, and cannot be included in the IAFF bargaining unit.
Disposition of the "contract bar" issue flows automatically from disposition of the accretion issue, given that the student firefighters are not covered by the collective bargaining agreement between the IAFF and the fire district. No contract bar exists in the absence of a current valid collective bargaining agreement covering the petitioned-for employees.
The fire district and the IAFF appear to recognize only two classes of McLane personnel, while the petitioner asserts that its members are a third class to be considered. McLane rosters a number of persons as "volunteer firefighters". Those persons do not keep any regular schedule of hours on stand-by at home or on the employer's premises. They appear for weekly drills and respond to emergency calls when available. The volunteers are not included in the IAFF bargaining unit and are paid for such responses as are made. McLane correctly argues that volunteers are generally excluded from collective bargaining on the basis that they lack employee status, and that Washington State statutes recognize a class of non-employee volunteer firefighters who are merely on call and who respond to fire alarms only when available. However, the facts of this case do not fit the two class formula suggested.
The ten member student firefighter work force is divided into three platoons. The three platoons rotate through a work schedule which calls for student firefighters to be "on duty" for shifts beginning at 6:00 p.m. on Mondays through Fridays and ending at 8:00 a.m. the following morning; and shifts beginning at 8:00 a.m. on Saturdays and Sundays and ending at 8:00 a.m. on the following morning. The members of the platoon which is on duty are required to be present in the campus fire station and are required to respond to all emergency calls coming in during their duty shift (unless a replacement is arranged). While on duty, the student firefighters perform scheduled duties of a non-emergency nature, such as truck check, training drills and clean up. As compensation for these scheduled services, the student firefighters receive free room in the campus fire station for use as their regular residence, $300 per quarter in meal tickets redeemable at the food service facilities on the college campus and, under certain circumstances, monthly cash incentive payments of $15, $25 or $35. In addition, students working on certain holidays receive an additional cash compensation.
As they reside in the fire station full time, some of the student firefighters have taken advantage of the opportunity to be members of the McLane volunteer firefighter roster. By attending volunteer drills and responding to alarms while off duty (during the day on weekdays or when a different student firefighter platoon is on duty), student firefighters become eligible for the compensation paid by the fire district to its non-student volunteers. This completely voluntary activity, in contrast to the scheduled obligations set forth above, supports the conclusion that McLane has at least three distinct classes of personnel. The student firefighters are clearly regular employees who are distinguishable from the district's volunteer force.
The IAFF has suggested that the student firefighters might be ineligible for collective bargaining because of the limited term nature of their employment. The four-year maximum suggested does not appear in the contracts or job descriptions, and is presumably derived from the "four-year college" nature of The Evergreen State College. There is no evidence of imposition of a four-year limit in practice. Even if there were, the period of employment is of substantial length and far beyond the periods usually dealt with in the cases on "temporary" employees.
During the hearing, evidence was obtained which clearly indicates that the student firefighters in the instant case should not be equated with the types of employees involved in the "house staff" cases of the National Labor Relations Board (NLRB). The Evergreen State College does not provide any course or degree program which is specifically preparatory for a career as a firefighter. The student firefighters receive no academic credit for their work in the program.
The petitioner itself has raised the question of whether the student firefighters are employees of the college. It argues, of course, that they are not. While all agree that Thurston County Fire Protection District No. 9 is a public employer subject to the jurisdiction of the Commission under RCW 41.56, it is clear that The Evergreen State College is not. Eastern Washington State College, Decision 245 (PECB, 1977); aff. Spokane Co. Sup. Ct. (1978). The preamble to the interlocal agreement postulates that:
"The College desires to engage the District, because of its professional capabilities and experience in fire protection and the location of the College therein, to provide fire protection services to the College."
As relates to the instant case, the key provisions of the agreement are:
“I. SCOPE OF SERVICE AND RESPONSIBILITIES OF THE DISTRICT
The District shall:
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8. Select, properly train as noted in item 2 above, supervise and compensate ten students from the College to act as firefighters for the District.
9. The District will provide to the students from the College who serve as firefighters for the District pursuant to the terms of the above-stated agreement, while on duty and in lieu of compensation, necessary meals not exceeding three meals per firefighter per day. If the District at any time for any reason cannot supply such meal service, the District will make an equivalent cash reimbursement to each such firefighter for his actual and necessary cost of said meal, at the rate of food service supplied on the campus of the College."
10. The District will continue to cause said meals to be furnished through the facilities of the College whenever possible, and will pay for said service at the regularly established rates charged by the College for such food service furnished to students, up to a maximum total of nineteen such meals per week for all such student firefighters.
II. SCOPE OF SERVICE AND RESPONSIBILITIES OF THE COLLEGE
1. Provide office, living and equipment storage space for District operations on the College campus.
2. Provide tools, materials, clothing and miscellaneous equipment for District fire protection of the College.
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6. Provide travel outside the Thurston County for business related to College fire protection when prior written approval is obtained from the College Director of Facilities.
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V. STATUS OF THE COLLEGE AND THE DISTRICT
The College and the District shall each perform all services and carry out responsibilities under the terms of this agreement as independent agencies and neither shall by virtue of this agreement be considered an agent or agency of the other."
Article III of the agreement provides for fixed compensation amounts to be paid to the fire district by the college for specified purposes. Testimony indicates that the cost of the meal tickets is in actuality controlled by the food supplier on the college campus, and that the fire district has the option of going back to the college for additional money in the event of increased costs. The incentive compensation program mentioned above was added with college approval after the execution of the interlocal agreement, and any change of that program would have to be approved by the college.
The NLRB has recently refused to assert jurisdiction where an intimate connection is found between an otherwise covered private employer and an excluded public employer. In Rural Fire Protection Co., 216 NLRB 584 (1975) a private firm contracted to perform fire fighting service for a city. The contract there had many similarities to the case at hand, including limitation of the recruitment of employees to the paying partner's population, fixing of the number of employees by contract, provision of fire equipment and fire stations by the paying partner, and delegation of hiring, supervision and discharge responsibilities to the operating partner. With Chairman Fanning dissenting, the NLRB reiterated the test laid down in Herbert Harvey, Inc., 171 NLRB 238 (1967):
"Where the services are intimately connected with the exempted operations of the institution, the Board has found that the contractor shares the exemption; on the other hand, where the services are not essential to such operations the Board has found that the contractor is not exempt and asserts jurisdiction over the contractor's activities."
The instant case may be distinguishable from Rural because fire protection is more central to the functions and purposes of the fire district than it is to the college; but reliance is not placed on that distinction alone. The idea of a joint employer is not new in the public sector. See: City of Lacey, Decision 396 (PECB, 1978), involving two covered employers; and Zylstra v. Piva, 85 Wn.2d 743 (1975), involving one employer covered by RCW 41.56 and one exempt employer. It is not necessary to delve into the debate within the NLRB over whether it accomplishes the purposes of the Act to refuse to assert jurisdiction, as a partial assertion of jurisdiction is clearly indicated by Zylstra. After finding that the county was a covered employer but that the superior court for that county was exempt from the obligations of the public employees' collective bargaining act, the supreme court nevertheless imposed on the county the obligation to bargain matters within its control.
FINDINGS OF FACT
1. Thurston County Fire Protection District No. 9 is a municipal corporation and political subdivision of the State of Washington existing under RCW 52.04.020 and RCW 52.08.010.
2. The Evergreen State College is an institution of higher education of the State of Washington and an instrumentality of the State of Washington existing under RCW 28B.10.015.
3. Under an interlocal agreement entered into between Thurston County Fire Protection District No. 9 and The Evergreen State College pursuant to RCW 39.34 and RCW 52.36.020, Thurston County Fire Protection District No. 9 selects, trains and supervises students from the college to act as firefighters for the district and compensates such students for their activities in form and amounts which are jointly controlled by the district and the college by their interlocal agreement.
4. Student firefighters employed under the interlocal agreement are not covered under RCW 41.26 as "full-time firefighters" and are not "uniformed personnel" within the meaning of RCW 41.56.030(6); but are scheduled for regular work hours and duties, are obligated to respond to emergency calls during their tours of duty, and are compensated in terms of periodic payments of room, board and cash.
5. The Association of Student Fire Fighters is an employee organization which exists primarily for the purposes of collective bargaining. The Association has requested, and Thurston County Fire Protection District No. 9 has declined to grant recognition as the exclusive bargaining representative in a bargaining unit consisting of all student firefighters employed by Thurston County Fire Protection District No. 9.
CONCLUSIONS OF LAW
1. Thurston County Fire Protection District No. 9 is a public employer subject to the jurisdiction of the Public Employment Relations Commission under RCW 41.56.
2. The Evergreen State College is an instrumentality of the State of Washington and is not subject to the jurisdiction of the Commission under RCW 41.56.
3. Thurston County Fire Protection District No. 9 and The Evergreen State College are the joint employers of student firefighters employed by Thurston County Fire Protection District No. 9 under the terms of the aforesaid interlocal agreement. By the terms of that agreement and in practice, Thurston County Fire Protection District No. 9 controls selection, training and supervision and related activities of student firefighters.
4. A bargaining unit consisting of all regular employees of Thurston County Fire Protection District No. 9 in the classification of student firefighter, excluding all other employees, is an appropriate unit for the purposes of collective bargaining; and a question concerning representation exists in such unit.
5. The intervenor in these proceedings was granted intervention based on its incumbency in its existing unit only. Only the petitioner has demonstrated the requisite showing of interest to be placed on a ballot in the separate bargaining unit found appropriate herein. The showing of interest submitted by the petitioner in support of its petition indicates that a substantial majority of the employees have designated the petitioner to act as their bargaining representative, and the conduct of an election would unnecessarily and unduly delay the determination of the question concerning representation.
NOW THEREFORE, it is
DIRECTED
A cross-check of records shall be conducted under the direction of the Public Employment Relations Commission by comparison of authorization cards filed in support of the petition herein against the employment records of Thurston County Fire Protection District No. 9, to determine whether a majority of the employees in the bargaining unit described as: All regular employees of Thurston County Fire Protection District No. 9 employed in the classification of student firefighter, excluding all other employees, have designated The Association of Student Fire Fighters as their exclusive bargaining representative.
DATED at Olympia, Washington, this 26th day of June, 1978.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
[SIGNED]
MARVIN L. SCHURKE, EXECUTIVE DIRECTOR