H.E. NO. 2022-7

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF NEWARK,

Respondent,

-and-	Docket No. CO-2021-258

NEWARK FIRE OFFICERS UNION

LOCAL 1860, IAFF, AFL-CIO,

Charging Party.

SYNOPSIS

A Commission Hearing Examiner designated to conduct an interim relief compliance hearing recommends that the Commission not pursue judicial enforcement of a Commission Designee's Order in I.R. No. 2021-27. The IR Order restrained the City "from continuing to require Local 1860 unit employees to perform EMS duties, pursuant to General Order B-21, including AED, ALS, BLS, EMT-D and first responder tasks, other than basic first aid in appropriate circumstances." The Hearing Examiner finds that the record does not demonstrate that the Local 1860 fire officers supervising non-fire EMS calls are performing or asked to perform EMS duties beyond basic first aid in violation of the IR Order.

A Hearing Examiner's Report and Recommended Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission, which reviews the Report and Recommended Decision, any exceptions thereto filed by the parties, and the record, and issues a decision that may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law. If no exceptions are filed, the recommended decision shall become a final decision unless the Chair or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further.

H.E. NO. 2022-7

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF NEWARK,

Respondent,

-and-	Docket No. CO-2021-258

NEWARK FIRE OFFICERS UNION

LOCAL 1860, IAFF, AFL-CIO,

Charging Party.

Appearances:

For the Respondent, France Casseus,

Assistant Corporation Counsel

For the Charging Party, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C., attorneys

(Paul L. Kleinbaum, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

This Hearing Examiner's report is limited to consideration of the Newark Fire Officers Union Local 1860, IAFF, AFL-CIO's (Local 1860) motion for compliance and enforcement of a Commission Designee's Order in I.R. No. 2021-27. In I.R. No. 2021-27, the Designee granted Local 1860's application for interim relief on an unfair practice charge alleging that the City of Newark unilaterally required fire officers to perform Emergency Medical Services (EMS) for the first time and outside of their job descriptions and training, rather than just providing EMS assists to University Hospital on EMS calls.

PROCEDURAL HISTORY

On June 10, 2021, Local 1860 filed its unfair practice charge alleging that the City's actions violated section 5.4a(5) and derivatively, a(1)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (Act), along with its application for interim relief seeking a temporary restraint of the City's implementation and enforcement of its May 25, 2021 General Order B-21 (General Order) that allegedly required fire officers to perform EMS duties. On June 10, 2021, the Designee issued an Order to Show Cause without a temporary restraint, setting dates for the City's response, Local 1860's reply, and argument in a telephone conference call. On June 17, 2021, the parties argued their respective cases in a telephone conference call with the Designee. In a written decision issued June 22, 2021, the Designee granted Local 1860's request for interim relief pending the outcome of its unfair practice charge. I.R. No. 2021-27, 48 NJPER 50 (¶13 2021). Applying the requisite Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982) factors, the Designee found that Local 1860 demonstrated a substantial likelihood of success and irreparable harm, that the relative hardship weighed in favor of Local 1860, and that a grant of interim relief would not harm the public interest.

The Designee's interim relief Order (IR Order) provides:

The City is restrained from continuing to require Local 1860 unit employees to perform EMS duties, pursuant to General Order B-21, including AED, ALS, BLS, EMT-D and first responder tasks, other than basic first aid in appropriate circumstances. If the City wishes to assign such tasks to Local 1860 unit employees, it shall first negotiate such assignments and compensation before implementation. Upon initiating negotiations, the City shall also provide responses to questions posed in Local 1860's May 31, 2021 letter to the Director. See, Morris Cty. and CWA Local 1040, AFL-CIO, P.E.R.C. No. 2003-32, 28 NJPER 456 (¶33168 2002), aff'd, 371 N.J. Super. 246 (App. Div. 2004), certif. den., 182 N.J. 427 (2005).
This Order shall remain in place pending further litigation in this matter and/or resolution. This case shall be assigned for normal processing.

On July 19, 2021, Local 1860 filed a request for compliance and enforcement of the IR Order, stating that, while the City's Public Safety Director issued a June 25, 2021 memorandum rescinding the General Order, he allegedly "never stopped dispatching Newark Fire Officers on primary EMS calls and continues to do so to this day." The request for compliance and enforcement was supported by the July 19 certification of Local 1860 President Captain Anthony Tarantino and Exhibits A-E. On July 20, the Commission Case Administrator wrote to the City requesting a response within seven days specifying what actions the City has taken to comply with the IR Order. On July 29, the City filed a response stating that it rescinded the General Order and that it "is unclear as to the allegation prompting the enforcement action." The City stated that it "has always asserted that it is not the 'primary' on EMS calls, which is an issue of fact to be determined at the conclusion of the matter." The City asserted that "Fire Officers provide guidance and supervision on a call." The City's response was supported by the July 29 certification of Fire Chief Rufus L. Jackson.

On August 4, 2021, the Commission Case Administrator requested that Local 1860 reply to the City's July 29 compliance and enforcement response. On August 9, 2021, Local 1860 replied, stating the City has failed to comply with the IR Order and that the City is still sending out Fire Officers as the primary on EMS runs. Local 1860 asserted that while the City disputes whether Fire Officers have been sent as the primary on EMS runs, that is a fact that was already determined, for interim relief purposes, by the Designee. Local 1860 states that the National Fire Incident Reporting System (NFIRS) documents provided with Captain Tarantino's certification show mostly primary EMS runs even though the City labels every run as "medical assist."

On August 17, 2021, the Commission's General Counsel wrote the following to the parties:

I have reviewed all filings related to IAFF Local 1860's motion for compliance and enforcement of I.R. No. 2021-27. The parties have completely opposed views as to whether fire officers are being called as primary responders on EMS calls or just limited to assistance on those calls. In light of this material factual dispute, IAFF Local 1860's motion for compliance and enforcement is not ripe to be pursued by the Commission at this time.

My understanding is that IAFF Local 1860 has agreed to hold the unfair practice charge in abeyance pending a September meeting between the parties and the staff agent assigned to this case. Should efforts to resolve this case prove unsuccessful, complaint issuance and the scheduling of hearing dates will proceed on an expedited basis.

On August 18, 2021, Local 1860 notified the Commission that it has not agreed to hold the charge in abeyance and that it would like to proceed with compliance as well as have the Director of Unfair Practices and Representation issue a Complaint and expedited Notice of Hearing. On August 20, the Commission's General Counsel wrote the following to the parties:

I have been made aware of IAFF Local 1860's decision not to hold the processing of the unfair practice charge in abeyance due to its concerns that a meeting with the Assistant Director would not occur in a timely manner. Given this new information, I have decided that it is necessary to hold a compliance hearing to determine whether the City has complied with the Order in I.R. No. 2021-27 (Order). As stated in my August 17th letter, the parties have completely opposed positions as to whether the fire officers are primary responders on EMS calls, or just limited to assistance on those calls. That is a material factual dispute that must be resolved before a determination can be made whether to seek enforcement of the Order pursuant to N.J.S.A. 34:13A-5.4(f).

Frank Kanther has been assigned as Commission Designee to conduct the compliance hearing, the scheduling of which will proceed on an expedited basis.

On August 23, 2021, I notified the parties that, pursuant to the General Counsels' August 20 letter, I had been assigned as the Commission Designee for purposes of an expedited Compliance Hearing to determine Local 1860's motion for compliance and enforcement of the IR Order. On August 26, I conducted a pre-
hearing telephone conference with the parties to discuss witness lists, production of exhibits, and scheduling hearing dates. The parties engaged in pre-hearing discovery and submission of proposed exhibits and witnesses. On September 21, I scheduled the interim relief Compliance Hearing pursuant to N.J.A.C. 19:14-
10.2, which provides that a hearing may be conducted to ascertain compliance with an order of the Commission or a Commission Designee.2/ In accordance with the Appellate Division's decision in In re Belleville Educ. Ass'n, 455 N.J. Super. 387, 407-409 (App. Div. 2018), under N.J.S.A. 34:13A-5.4(f) only the Commission would be empowered to seek judicial enforcement of a Commission or Commission Designee's decision.3/

On October 6, 2021, I conducted a hearing via Zoom video teleconference.4/ The parties examined witnesses and exhibits were admitted into evidence (Exhibit List provided at the end of this decision). Local 1860 called a single witness, Captain Tarantino. The City called a single witness, Chief Jackson. The hearing transcript was received on November 23, 2021.5/ After the parties' requests for extensions to file post-hearing briefs were granted, post-hearing briefs were filed on January 7, 2022.

Based upon the record, I make the following:

FINDINGS OF FACT

Initially, I will summarize relevant background facts concerning the parties and their dispute as found by the Designee (I.R. No. 2021-27 at 3-8):

1.	Local 1860 represents a collective negotiations unit of about 160 fire officers, including battalion chiefs, deputy chiefs, captains and others, excluding "fire fighters and other non-supervisory employees" employed by the City, as set forth in Article 2 of the parties' expired collective negotiations agreement (CNA).

2.	The expired agreement includes a "management rights" provision (Article 14) that reserves to the City executive management and administrative control of property, facilities and activities of employees; the determination of employee qualifications and conditions for continued employment or assignment - subject to the provisions of law; and the adoption of rules, regulations and practices limited by the terms of the agreement.

3.	The parties are in negotiations for a successor CNA.

4.	The City is a Civil Service jurisdiction. The unit titles of fire captain, battalion chief and deputy chief are Civil Service titles. The Civil Service job specifications for each title neither identify nor include first responder duties, medical aid duties and/or concomitant licences or certifications. On March 1, 1988, the City promulgated job descriptions for captain, battalion chief and deputy chief, none of which specifically provide for the performance of first responder duties, medical aid duties or licenses or certifications associated with such tasks. The final responsibility enumerated for each title is a general requirement to "perform such duties" as may be directed by a superior officer or in the case of deputy chiefs, performing tasks directed by the Director and Chief, including assisting, ". . . in administrative areas, span of control and incident response."

5.	The Civil Service title "fire fighter" is defined in part as an employee who "administers emergency medical treatment." In provided "examples of work," a fire fighter "aids victims at scene of emergency by administering emergency medical treatment such as first aid, CPR or EMT treatment;" "prepares victims for transportation n an ambulance;" and "may be required to transport victims to hospital or other emergency treatment facility." Other abilities include applying principles of emergency medical and first aid training after a period of training; administering first aid, CPR and other medical care, after a period of training; ability to apply techniques used in pulmonary and cardiac resuscitation," etc.

6.	Captain Tarantino has been employed by the City since 1989. He certifies that during the time of his employment, fire officers were not required to be "primary responders" in EMS calls that have historically been answered by University Hospital. Tarantino admits that fire officers may perform basic first aid at the scene of a fire, auto accidents or in the firehouse, but they are not trained to perform ALS (Advanced Life Support), BLS (Basic Life Support) or EMT-D (EMTs trained to deliver defibrillation). Nor have officers been trained to check someone's vital signs or to administer oxygen or to transport victims to a hospital. Tarantino also certifies that in the past, officers were trained and received certifications in AED, CPR and "bleeding control" (Basic First Aid) but those certifications expired in 2019.

7.	On May 25, 2021, City Public Safety Director Brian O'Hara issued General Order B-21, "First Responder & Medical Aid," to the "fire division." The order directs all fire division personnel to "adhere to the established guidelines for emergency medical response," fixing responsibility of instruction and enforcement on fire officers. Personnel are to be able to administer AED, ALS, BLS, EMT-D, and First Responder tasks. The Order directs all personnel to participate in two hours of training every month; under "Medical Responsibilities," the Order provides: "The Fire Division will arrive and begin medical treatment of all patients, including patient assessment, basic first aid, and CPR, as necessary. The patient's vital signs will be recorded and monitored until the arrival of University Hospital EMS."

8.	Chief Jackson certifies that the General Order "codifies" treatment services administered for years, ". . . by Newark fire fighters, i.e., assessment, basic first aid and CPR until the arrival of EMS." He certifies that the Order was drafted to create a uniform response to an increased need for emergency responders ". . . and more efficient delivery of service, following incidents of slower responses by EMS due to volume." He certifies that EMS has historically contacted Fire dispatch for immediate assistance and that fire stations throughout the City can dispatch employees to arrive on a scene sooner to provide CPR, etc.

9.	On May 31, 2021, Captain Tarantino wrote a letter to Director O'Hara, objecting to "a unilateral change in terms and conditions of employment by requiring fire officers to assume duties outside their job titles and beyond their normal duties." He requested the Director to rescind General Order B-21 and to negotiate with Local 1860 ". . . over the policy and its impact, including compensation for the additional duties during negotiations for a successor contract." Tarantino also requested responses to twelve questions seeking information related to General Order B-21, including records of first responder annual refresher training in AED, CPR and controlled bleeding; a copy of the "checklist" for the apparatus medical bag; copies of training records for oxygen administration, patient restraint, tourniquet application, etc.; cleaning of gear after body fluid exposure; the investigation procedure if a patient care issue is reported; whether the fire division will be allowed to respond to a "working fire" while on a first responder call, and other matters. Tarantino did not receive a response.

Next, I will summarize the facts as determined from the October 6, 2021 Compliance Hearing pertaining specifically to the motion for compliance and enforcement.

10.	The Designee's June 22, 2021 Order provides, in pertinent part: "The City is restrained from continuing to require Local 1860 unit employees to perform EMS duties, pursuant to General Order B-21, including AED, ALS, BLS, EMT-D and first responder tasks, other than basic first aid in appropriate circumstances. If the City wishes to assign such tasks to Local 1860 unit employees, it shall first negotiate such assignments and compensation before implementation." [1T:7]

11.	On June 25, 2021, the Public Safety Director rescinded General Order B-21. [J-2]

12.	Local 1860 fire captains are located in the firehouse with the firefighters and are responsible for supervision of the firehouse, the firefighters, and the apparatus, e.g., the fire truck and other vehicles. [1T66-68, 116]

13.	Fire captains are responsible for ensuring that all the equipment on the fire apparatus is operational on a daily basis. [1T68-69, 116]

14.	Fire captains are required to be dispatched along with firefighters and arrive in the same apparatus. [1T71-72, 118]

15.	Fire captains are the supervisors on the scene responsible to provide direction to the firefighters. [1T71-72, 119]

16.	Fire captains are responsible for completing the necessary paperwork following a call. [1T72-73, 119]

17.	Prior to issuance of the General Order, Local 1860 fire officers had to submit a NFIRS "basic" incident report to document every time they left the firehouse and were the primary or first due fire company to a scene. [1T27-31, 33, 36, 38, 46, 57, 155-158]

18.	After the issuance of the General Order, Local 1860 fire officers were required to fill out both the NFIRS basic form and the NFIRS six EMS form after responding to emergency medical calls. [J-1; 1T31, 33-38, 43, 51-52, 158-159

19.	After the General Order was rescinded, the City still required Local 1860 fire officers to fill out both the NFIRS basic form and the NFIRS six EMS form after responding to emergency medical calls. [J3; 1T33, 35-39, 43, 55-56, 159-
161, 165-166]

20.	Prior to issuance of the General Order, Local 1860 fire officers were only dispatched on an EMS run when University Hospital EMS was already on the scene as the "primary" or "first due" and needed a "medical assist" or "EMS assist" from the fire department such as for a lift assist or getting a child out of a car. [CP1; CP2; 1T29-31, 40-41, 55-
56]

21.	After the issuance of the General Order, Local 1860 fire officers were required to respond to emergency medical calls as "first due" or "primary" on the scene pending the arrival of University Hospital EMS. [CP-1; CP-4; 1T31-33, 42-43, 55-
56]

22.	After the General Order was rescinded, the City continued to have Local 1860 fire officers respond to emergency medical calls as "first due" or "primary" on the scene pending the arrival of University Hospital EMS. [CP1; CP5; 1T24, 31-34, 38-41, 43]

23.	REMS runs the dispatch center and dispatches police, fire, or EMS when a 911 emergency call is received. [1T61-64]

24.	Prior to the General Order, REMS would contact University Hospital for EMS calls, and if University Hospital needed assistance from the Fire Department it would contact the Fire Department. [1T64-65]

25.	After issuance of the General Order, REMS began contacting the Fire Department directly for EMS calls. [1T64-65]

26.	REMS dispatchers have EMD (Emergency Medical Dispatching) training and determine if an ALS response is necessary or if a basic life support or first responder response is necessary. If a basic life support or first responder level of response is required, REMS will call the Fire Department to request its assistance on the EMS call and the Fire Department's dispatcher will locate the closest firehouse to the scene and dispatch it to the EMS call. [1T126-127]

27.	During a non-fire EMS call that the Fire Department has been called to, once University Hospital EMS arrives on the scene, University Hospital EMS assumes control. [1T81]

28.	If University Hospital EMS is already on the EMS scene prior to the Fire Department, the fire truck is usually waived off or turned back. [1T81-82, 128].

29.	When fire officers arrive to an EMS call prior to University Hospital EMS, they are ordered not to go above their training and only have the ability to provide basic first aid. [1T82-84]

30.	Fire officers have had sufficient training to conduct basic bystander first aid, including CPR, provide an AED, and bleeding control. [1T95, 100].

31.	The 2017 and 2018 certifications for the fire officers' AED, CPR, and bleeding control training expired in 2019 and 2020. Many certifications unintentionally lapsed in 2020 and the Fire Department is trying to provide that training now. [1T101-103, 148-155, 171-173]

32.	Fire officers are not trained for anything above basic first aid, such as oxygen, patient assessment, respiratory problems, or EMR (Emergency Medical Responder) training. [1T95-96, 100-101]

33.	Since the rescission of the General Order, fire officers have given basic CPR and first aid up to their training ability. [1T85-87]

34.	Fire officers are not required to provide ALS, BLS, or EMT aid during EMS calls. [1T145-146].

35.	There has been no identification of any specific emergency situation since the rescission of the General Order where a fire officer has performed BLS, EMT-D, or ALS. [1T86-87]

ANALYSIS

This Hearing Examiner's decision pertains only to the Compliance Hearing conducted on October 6, 2021 to ascertain the City's compliance with the June 22, 2021 IR Order in I.R. No. 2021-27. This is not a decision on the merits of Local 1860's underlying unfair practice and is not an opportunity to reconsider the legal and factual determinations of the Commission Designee in I.R. No. 2021-27.

The record demonstrates that after issuance of the IR Order and the June 25, 2021 rescission of the General Order, the City continued to dispatch the Fire Department to non-fire EMS calls where they would often be "first due" or "primary" on the scene prior to the arrival of University Hospital EMS. While the Fire Department is not dispatched for emergencies requiring ALS, they are dispatched for emergencies requiring BLS or first responder response. A Local 1860 fire officer (captain) is required to be on the fire truck or other apparatus with the firefighters responding to such EMS calls. The fire officers supervising the response to such calls have been ordered not to provide emergency or medical aid beyond their training. Since the rescission of the General Order, fire officers have given basic CPR and first aid up to their training ability. The fire officers have sufficient training to conduct basic bystander first aid, including CPR, provide an AED, and bleeding control, although their certifications expired around 2019-2020. These certifications were expired for fire officers when the General Order was issued and the Fire Department is working on updating those certifications. Chief Jackson testified that the fire officers are not required to provide ALS, BLS, or EMT aid during EMS calls. Captain Tarantino could not identify any specific emergency situation since the rescission of the General Order during which a fire officer has performed ALS, BLS, or EMT-D.

None of the testimony or exhibits in the record substantiate a claim that the City has required Local 1860 fire officers to perform AED, ALS, BLS, EMT-D and first responder tasks, other than basic first aid in appropriate circumstances. The fact that fire officers continue to be required to respond to certain types of EMS calls pending the arrival of University Hospital EMS, and that the fire officers are required to complete an additional NFIRS six EMS form to document the Fire Department's involvement in such emergency calls, does not mean that they are required to perform the EMS duties that were the subject of the IR Order.

The allegations here do not involve the rank-and-file firefighters who respond to EMS calls with the fire officers. The firefighter title's job requirements include more EMT duties and emergency medical and first aid training than the fire officer titles. Findings of Fact 4-5. Therefore it is conceivable that the Local 1860 Fire Officers who are supervisors during EMS calls are not required to and do not need to perform any EMS duties beyond their training or beyond basic first aid, while there may be firefighters on the scene with them who are qualified and do perform additional EMS duties pending the arrival of University Hospital EMS. Regardless of what the firefighters on these EMS calls may or may not be doing, which is not in the record here, the record does not demonstrate that the Local 1860 fire officers supervising these EMS calls are performing or asked to perform EMS duties beyond basic first aid in violation of the IR Order.

CONCLUSION

For the above-stated reasons, I find that Local 1860 has not demonstrated that the City has failed to comply with the Designee's Order in I.R. No. 2021-27.

RECOMMENDATION

I recommend that the Commission not pursue enforcement of I.R. No. 2021-27 in court.

/s/ Frank C. Kanther

Frank C. Kanther

Hearing Examiner

DATED:	February 23, 2022

Trenton, New Jersey

Pursuant to N.J.A.C. 19:14-7.1, this case is deemed transferred to the Commission. Exceptions to this report and recommended decision may be filed with the Commission in accordance with N.J.A.C. 19:14-7.3. If no exceptions are filed, this recommended decision will become a final decision unless the Chairman or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further. N.J.A.C. 19:14-
8.1(b).

Any exceptions are due by March 7, 2022.

EXHIBIT LIST

Joint (J)

-J-1 -	Public Safety Director General Order B-21 issued May 25, 2021

-J-2 -	Public Safety Director Memorandum issued June 25, 2021 rescinding General Order B-21

-J-3 -	August 13, 2021 e-mail from Joelma Souza to Members of the Newark Fire Division with attachment (1) Notice No. 2017-113 re: Field Reports and NFIRS Completion dated August 9, 2017; and (2) Notice No. 2021-056 re: EMS NFIRS Entry - Red Alert dated June 3, 2021

-J-4 -	Index of Monthly NFIRS Reports for Secondary Runs January 2021 through May 2021

Charging Party (CP)

-CP-1 -	Chart - Monthly EMS Runs: January-August 2021

-CP-2 -	NFIRS Basic Reports January 2021 through August 2021

-CP-3 -	NFIRS-6 EMS Reports June 1, 2021

-CP-4 -	NFIRS-6 EMS Reports June 18, 2021 through June 25, 2021

-CP-5 -	NFIRS-6 EMS Reports June 26, 2021 through July 2, 2021

Respondent (R)

-R-1 -	NFPA 1710

-R-2 -	Map of Newark - Fire Station Locations

-R-3 -	RLS Article re: Newark man waiting for EMS

-R-4 -	Newark Press Release: Firefighters' recent lifesaving accomplishments

-R-5 -	EMS Runs for Medical Services - June 2021 through September 19, 2021