H.O. No. 83-9

Synopsis:

A Hearing Officer of the Public Employment Relations Commission recommended that a petition seeking a separate unit of institutional firemen employed by the County of Hudson be dismissed because the petitioned for unit was inappropriate. The Hearing Officer had concluded that the institutional firemen were firefighters within the meaning of the New Jersey Employer-Employee Relations Act. However, the Hearing Officer found that although the Police and Fire Compulsory Interest Arbitration Act did not provide interest arbitration for mixed units of firefighters with nonfirefighters, there was nothing in that Act which otherwise prevented such mixed units, or required separate units for firefighters. Since the institutional firemen had been included in an otherwise appropriate broad-based countywide unit, the Hearing Officer, noting the absence of conflict and inadequate representation in the existing unit structure, and noting the Commission's preference for broad-based units, recommended dismissal of the Petition.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Report and Recommendations, any exception thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Officer's findings of fact and/or conclusions of law. The Director's decision is binding upon the parties unless a request for review is filed before the Commission.

PERC Citation:

H.O. No. 83-9, 9 NJPER 195 (¶14090 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

15.43 36.221

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HO 83-009.pdf
Appellate Division:
Supreme Court:

H.O. NO. 83-9 1. H.O. NO. 83-9 STATE OF NEW JERSEY BEFORE A HEARING OFFICER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Public Employer, -and- Docket No. RO-82-154 LOCAL 2772, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Petitioner, -and- DISTRICT 1199J, NATIONAL UNION HOSPITAL AND HEALTH CARE EMPLOYEES, RWDSU, AFL-CIO, Intervenor. Appearances: For the Public Employer Murray & Granello, attorneys (David F. Corrigan, of Counsel) For the Petitioner William Bowes, Vice President, Local 2772 For the Intervenor Greenberg, Margolis, Ziegler & Schwartz, attorneys (Mark S. Tabenkin, of Counsel) HEARING OFFICER = S REPORT AND RECOMMENDATION A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission ( A Commission @ ) on April 7, 1982 by Local 2772, International Association of Firefighters ( A Petitioner @ ) seeking to represent a separate unit of six (6) institutional firemen (or firefighters)1/ employed by the County of Hudson ( A County @ ) and currently included in a countywide unit represented by District 1199J, National Union Hospital and Health Care Employees, RWDSU, AFL-CIO ( A Intervenor @ ).2/ The Petitioner seeks to remove the institutional firefighter title from the Intervenor = s unit and form a separate unit for said title because it alleged that the employees employed in that title are firefighters within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), and must therefore be in a separate unit because they are entitled to interest arbitration as set forth in the Act at N.J.S.A. 34:13A-16.3/ The County and the Intervenor argued that the Petition be dismissed because the unit sought was inappropriate for two reasons. First, they argued that the employees in question were not firefighters within the meaning of the Act and, therefore, were appropriate for continued inclusion in the countywide unit. Second, they argued that even if the affected employees were firefighters within the meaning of the Act, the Act, including the interest arbitration sections of the Act, did not mandate (unlike police employees) that firemen be in a separate negotiations unit. Pursuant to a Notice of Hearing dated September 20, 1982, a hearing was held in this matter before the undersigned Hearing Officer on November 9, 1982, in Newark, New Jersey, at which all parties had an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Subsequent to the close of hearing, the parties filed briefs in this matter, the last of which was received on January 10, 1983.4/ Based upon the entire record in these proceedings, the Hearing Officer finds: 1. The County of Hudson is a public employer within the meaning of the Act, is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act. 2. Local 2772, International Association of Firefighters and District 1199J, National Union Hospital and Health Employees, RWDSU, AFL-CIO, are employee representatives within the meaning of the Act and are subject to its provisions. 3. The Petitioner seeks a secret ballot election to determine whether institutional firefighters wish to be represented in a separate unit. The County and Intervenor refuse to consent to such an election and argue that the proposed unit is inappropriate. The parties have been unable to agree upon the appropriate unit for institutional firefighters, therefore, a question concerning representation exists, and the matter is appropriately before the undersigned for Report and Recommendations. 4. There are two issues in this matter. First, whether institutional firemen are firefighters within the meaning of the Act. Second, if said employees are firefighters within the meaning of the Act, are they entitled to be in a separate unit because of the application of the interest arbitration provisions of the Act? Findings of Fact 1. The six institutional firemen involved herein are employed by the County at its Meadowview Hospital Complex in Secaucus, New Jersey. These six firemen plus the fire chief comprise the Meadowview Hospital Fire Department whose primary function as enunciated in the Fire Department Policy Manual (Exhibit J-5) is to prevent and fight fires, respond to alarms and extinguish fires, and keep informed of the latest fire prevention and fire fighting techniques. The Fire Department is located in its own facility at the Hospital Complex. The job description of the institutional firemen as set forth in the County job description (Exhibit J-6) lists their main function as operating a fire engine and fighting and preventing fires. The job description includes other responsibilities such as using hoses and participating in fire drills and training courses, operating firefighting equipment, and performing rescue work. 2. The title of institutional firemen has been included in the countywide unit since July 1, 1972. (Exhibits E-1, J-1, J-2, J-3, and J-4). 3. Robert O = Reilly, the Director of Personnel for Meadowview Hospital, testified that there are five negotiations units covering employees at the Hospital. He indicated that the Intervenor (1199J) represented about three quarters of the Hospital employees, that the United Nurses Organization represents the nurses, that an FOP union represented Hospital police officers, that there was a supervisors union, and finally, that black seal boiler room employees were in a separate unit. Transcript ( A T @ ) pp. 66, 68-69. 4. The undisputed evidence produced at hearing shows that the institutional firemen have received training as firefighters, they have used firefighting equipment and machinery, and they have actually fought fires. The evidence with regard to the training shows that the firefighters took part in a one day training program at the Fire Training Center in Wayne, New Jersey. That training consisted of entering a smoke house with Scott air packs and attacking the fire with water hoses, and rescuing mannequins from the fire (T p. 24). Upon completion of that training, the firemen received certificates (Exhibit P-1). In addition to training at Wayne, the instant firefighters received on the job training by other institutional firemen, the Fire Marshall, and Chief Duane of the Meadowview Hospital Fire Department (T pp. 23, 33). Chief Duane, for example, trained the firefighters when to use chemical rather than water fire extinguishers (T p. 33), and he trained them on the hoses and hookups to the fire pumper. The firemen received additional training with the Secaucus Fire Department (T pp. 42, 60). In addition to testifying about the above training provided to the firefighters, William Bowes, one of the instant firefighters, testified about the hours of employment and the type of fire equipment available in the department. He indicated that the men work a shift of 24 hours on duty and 72 hours off with no more than two men to a shift. With regard to uniforms, Bowes testified that the firemen wear a blue uniform with a patch and badge which says A Hudson County Fire Department. @ He also indicated that they have traditional firefighting clothing such as a fire coat, pants, boots and helmet. Finally, Bowes testified that the Department has two fire pumpers which the men operate containing hoses, axes, extinguishers, first-aid kit, Scott air packs and other related tools and equipment (T p. 38). Bowes also testified about the type of fires he has fought as an institutional firefighter. One fire occurred on January 1, 1980, in the Hospital basement and the firemen were notified by telephone and a fire alarm. Two firemen in addition to Bowes responded in the engine pumper. They wore their Scott air packs and first attacked the fire with CO 5 extinguishers, but when they discovered the fire was not electrical, they extinguished it with an inch and a half hose operated by Bowes (T. pp. 19-21). Bowes testified about a second fire he fought on July 15, 1982, at 3:20 a.m. He responded with the engine to a bed and mattress fire in the Hospital. Although an attendant had already used a chemical extinguisher, Bowes still had to pull the mattress outside and extinguish it with a water extinguisher (T pp. 31-33). 5. Bowes also indicated that because of their shortage in manpower and equipment, they must frequently call in the Secaucus Fire Department to assist them in firefighting (T pp. 35, 45). For example, Bowes indicated that in a bed fire on January 23, 1982, Secaucus was called in to utilize their air vacuum to clear out the smoke in the building (T pp. 35-36). 6. Finally, Bowes testified that when not fighting fires, the firemen are engaged in other fire related duties. He stated that they clean the fire department and firefighting equipment, they inspect buildings, and they conduct fire drills. The fire drills consist of instructing hospital personnel what to do in the event of a fire and how and where to move the patients (T pp. 50-51). Decision and Analysis The Firefighting Issue: Although neither the Act nor the Commission rules provide a specific definition for a firefighter, the undersigned Hearing Officer developed such a definition in In re City of Plainfield, H.O. No. 82-5, 7 NJPER 525 ( & 12232 1981) as follows: A firefighter is someone engaged in the fighting of fires which includes the use and operation of firefighting equipment and apparatus, and as evidenced by specific training in firefighting tactics and use of firefighting equipment.5/ That case involved the duties of signal system repairers and radio repairers and the Hearing Officer found that those titles were not trained as firefighters, nor did they actually fight fires. By contrast, the undisputed facts in the instant matter fully support a finding that institutional firemen are firefighters within the meaning of the Act. These institutional firemen are clearly trained to fight fires, they are trained to use firefighting equipment, and, as the evidence shows, they have actually fought fires and used firefighting equipment. The fact that the training provided to the firefighters in question is not as extensive as the training afforded to firefighters in a larger department, or that the type and frequency of fires are minor and few and far between does not negate the fact that the institutional firemen are trained and perform as firefighters, and that the County expects them to perform as firefighters as evidenced by the Policy Manual (Exhibit J-5) and the job description (Exhibit J-6). When contrasted to the fire and ambulance dispatchers in In re Cty. of Camden, D.R. No. 82-14, 7 NJPER 631 ( & 12283 1981), who were found not to be firefighters, the institutional firemen in the instant case perform the very duties the Director found lacking in the dispatchers. For example, in Camden, supra, the Director found that the dispatchers never participated in the physical act of fighting fires, were not required to have firefighting training nor was any provided to them, and, their knowledge of firefighting equipment was used only in relation to their communication functions. In the instant matter, however, the institutional firemen have physically fought several fires, they are required to undergo -- and have in fact received -- firefighting training, and they have been trained in -- and used -- firefighting equipment. The institutional firemen, therefore, are nothing but firefighters within the meaning of the Act. The Unit Issue: Having found that institutional firemen are firefighters within the meaning of the Act, they would automatically be entitled to avail themselves of interest arbitration pursuant to the Police and Fire Compulsory Interest Arbitration Act, N.J.S.A. 34:13A-14 et seq. ( A Arbitration Act @ ), assuming they were in a unit appropriate for interest arbitration. The Arbitration Act provides for compulsory interest arbitration in public fire and police departments and that Act set forth the definition of public fire departments as follows: Public fire department means any department of a municipality, county, fire district or the State or any agency thereof having employees engaged in firefighting provided that such firefighting employees are included in a negotiating unit exclusively comprised of firefighting employees. N.J.S.A. 34:13A- 15. That provision of the Arbitration Act makes it clear that firefighters within the meaning of the Act, such as the institutional firemen herein, must be in a negotiating unit exclusively comprised of firefighting employees in order to avail themselves of interest arbitration. The institutional firemen in this matter have always been included in the Intervenor = s unit, a nonfirefighting unit, thus they are ineligible for interest arbitration unless they can form a separate unit. The Petitioner did not attempt to justify a separate unit of institutional firemen based upon traditional severance standards, rather, it argued that as a group of firefighters within the meaning of the Act, it had a community of interest separate from other County employees, and that it was entitled to a separate unit in order to avail itself of interest arbitration. Regarding the community of interest argument, the institutional firemen have been included in the Intervenor = s unit for several years and there has been no showing that they have received inadequate representation or that a conflict exists with the current unit structure. Regarding the interest arbitration argument, there is nothing in the Act (including the Arbitration Act) which requires that firefighters be removed from units which include nonfirefighting employees. The Director held as such in In re Cty. of Essex, D.R. No. 83-2, 8 NJPER 460 ( & 13216 1982): There is nothing in the Interest Arbitration Statute that compels the exclusion of firefighting employees from units containing other municipal, county, or state employees. At slip op. p. 8. An analysis of the Act, as well as the legislative history of the Arbitration Act supports the above conclusion. Although the Act mandates that; ...no policeman shall have the right to join an employee organization that admits employees other than policemen to membership. N.J.S.A. 34:13A-5.3. there is no such mandate for firefighters. In fact, the definition of public fire departments in N.J.S.A. 34:13A-15 (hereinabove) clearly contemplates that some firefighters may be included in units with nonfirefighters, and the Act indicates that those firefighters are not entitled to interest arbitration. The legislative history of the Arbitration Act is equally persuasive in support of that argument. The Hearing Officer in In re Cty. of Camden, H.O. No. 82-3, 7 NJPER 491 ( & 12218 1981)6/ reviewed the legislative history of the Arbitration Act and found that as initially introduced in Senate Bill No. 482 A public fire department @ was defined as A any department of a municipality, county, district or the State or any agency thereof having employees engaged in firefighting. @ However, subsequent amendments added the exact language now found in the Statute (N.J.S.A. 34:13A-15), and an accompanying committee statement indicating that this change would limit the benefits of the bill to those firefighters not in mixed units. Prior to final passage, however, a group of senators introduced Senate Bill No. 3172 to modify the definition of public fire department to include employees performing firefighting or related functions. The sponsor = s statement accompanying that Bill declared in pertinent part that: Under this legislation, the only units not covered for such purposes would be units of mixed titles wherein some employees perform functions wholly unrelated to firefighting and who are only coincidentally included in such units. Shortly after Senate Bill No. 3172 was proposed, Senate Bill No. 482, as amended, was signed into law. Although Senate Bill No. 3172 was not adopted, the sponsor = s statement thereto, as well as the language in Senate Bill No. 482 and the statement to that Bill, clearly demonstrate the Legislature was aware that some firefighters might be in units with nonfirefighters, and that the Legislature specifically intended to exclude those firefighters from coverage under the Arbitration Act. The Legislature did not intend to remove firefighters from otherwise appropriate mixed units only to give them the opportunity to utilize interest arbitration. It is equally important to note that nothing in the Act prevents the instant Petitioner, or any firefighters labor organization, from representing a mixed unit of firefighters and non-firefighters. In In re City of Hackensack, D.R. No. 79-27, 5 NJPER 150 ( & 10085 1979), the Director said: ...[T]he Act does not preclude nonfirefighting employees from choosing a firefighter = s organization, or an affiliate thereof, as their representative, nor does the Act preclude a firefighting organization, or affiliate thereof, from becoming the exclusive representative of such employees in an appropriate unit. at slip op. p. 7. This language means that the Petitioner could seek to represent the unit currently represented by the Intervenor, however, interest arbitration would still not be available to the institutional firemen if the Petitioner represented the existing unit. In view of the Commissioner = s longstanding preference for broad-based units encompassing a variety of functions,7/ and in view of the Commission = s preference not to disturb unit structures with a lengthy negotiations history,8/ and absent evidence of conflict and inadequate representation, the existing unit structure -- including the firefighters -- should remain intact. Having found that the Arbitration Act does not mandate a separate unit for the institutional firemen, and noting no failure of fair representation by the Intervenor or any evidence of conflict of interest, the petitioned for unit is inappropriate and the Petition should therefore be dismissed. Recommendations 1. Institutional Firemen employed by the County are firefighters within the meaning of the Act. 2. The Arbitration Act does not prevent mixed units of firefighters and nonfirefighters. 3. The petitioned-for unit is inappropriate and the Petition must, therefore, be dismissed in its entirety. /s/Arnold H. Zudick Hearing Examiner DATED: March 8, 1983 Trenton, New Jersey 1/ The original Petition sought a unit of institutional firemen, fire captains, assistant fire chiefs, and fire chief. However, at the commencement of the hearing the Petitioner deleted the captain and assistant chief titles (unfilled positions) and the fire chief title (one person). The Petitioner, therefore, now only seeks a unit of institutional firemen. 2/ When the Petition was filed in April 1982, the majority representative of the countywide unit which included the institutional firemen position was Teamsters Local 286. However, in July 1982, District 1199J defeated Local 286 in a secret ballot election to become the majority representative of the countywide unit. Consequently, District 1199J has been substituted for Local 286 as the Intervenor herein. 3/ When the Petition was first filed the Petitioner also argued that the petitioned-for unit was appropriate based upon severance standards as set forth in In re Jefferson Tp. Bd. of Ed., P.E.R.C. No. 61 (1971). Specifically, the Petitioner argued that Local 286 had not fairly represented the firefighters. However, at the hearing, the Petitioner dropped the severance argument and indicated it was not alleging that 1199J failed to represent them. 4/ The Petitioner = s brief was received on December 6, 1982, but based on an extension of time, the County = s brief was not received until January 5, 1983. Thereafter, on January 10, 1983, the Intervenor submitted a letter in lieu of brief and adopted the arguments set forth in the County = s brief. 5/ In In re City of Plainfield, D.R. No. 82-39, 8 NJPER 158 ( & 13068 1982), the Director of Representation adopted the Hearing Officer = s recommendation in In re City of Plainfield, H.O. No. 82-5, supra, to dismiss the Petition. However, in so doing, it was unnecessary for the Director to comment upon the recommended definition of a firefighter. Consequently, the Hearing Officer = s definition of a firefighter is still nothing more than a recommendation because it has not been adopted by the Director or the Commission as Commission policy. 6/ The Hearing Officer = s recommendations in that case were adopted by the Director in In re Cty. of Camden, D.R. No. 82-14, supra, however, the Director made no comment with respect to the Hearing Officer = s review of the legislative history of the Arbitration Act. 7/ In re State of New Jersey, P.E.R.C. No. 68 (1972), aff = d. State of New Jersey v. Professional Assn. of N.J. Dept. of Ed., 64 N.J. 231 (1974). 8/ In re Englewood Bd. of Ed., P.E.R.C. No. 81-100, 7 NJPER 141 ( & 12061 1981). ***** End of HO 83-9 *****