NLRB Regional Director Issues Decision on West Elmira Volunteer Fire Department v. Elmira Professional Fire Fighters Association

WASHINGTON, June 16 -- The National Labor Relations Board issued the following decision by Regional Director on West Elmira Volunteer Fire Department v. Elmira Professional Fire Fighters Association:

WEST ELMIRA VOLUNTEER FIRE DEPARTMENT, INC.

Employer

and

ELMIRA PROFESSIONAL FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 709

Petitioner

ELMIRA PROFESSIONAL FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 709

Petitioner

Case 03-RC-199448

DECISION AND DIRECTION OF ELECTION

Petitioner seeks to represent a unit of regular full-time firefighters employed by the Employer at its facility located at 1299 West Water Street, Elmira, New York. The Employer maintains that the petition should be dismissed because it is an exempt entity, and therefore not subject to the jurisdiction of the Board. Alternatively, the Employer argues that the unit sought by Petitioner is not appropriate because it should also include non-supervisory per diem firefighters. Petitioner and the Employer agree that any unit found appropriate should include all regular full-time firefighters.

A hearing officer of the Board held a hearing in this matter and the parties orally argued their respective positions prior to the close of the hearing. Prior to the hearing the Employer submitted a Statement of Position. As explained below, based on the record and the relevant Board law, I find that the Employer is subject to the jurisdiction of the Board. I further find, based on the record and relevant Board cases, including the Board's decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. 727 F.3d 552 (6th Cir. 2013), that the petitioned-for unit is appropriate.

The Employer's Operations

The Employer operates a nonprofit volunteer fire department that serves the Town of Elmira, New York, and provides mutual aid to neighboring fire departments as needed. The Employer's internal organization structure includes four elected officers, a president, vice- president, treasurer, and secretary, each serving two-year terms, and an elected three-member board of directors ("Board"), each serving staggered three-year terms.

Board member duties include voting privileges at Board meetings, execution of contracts, control and management of Employer property, annual audits, approving Employer activities that provide its members with credit toward active status, and developing and maintaining membership policies. For example, the Board recently voted on a change in healthcare benefits for employees.

The chief of the fire department reports directly to the Board. The chief oversees, in descending reporting order, an assistant chief, a captain, two lieutenants, and firefighters.

The Employer's firefighters currently consist of four paid full-time firefighters and approximately 35 volunteer firefighters. The Employer also employs approximately six paid per diem firefighters.1 The per diem firefighters include the chief of the fire department, a lieutenant and a member of the Board.2

The Employer's Constitution and Bylaws defines "Full/Active Members" as "members who actively respond to calls" with full voting rights in the organization. As such Full/Active Members elect the Employer's Officers and Directors, and nominate and elect the fire department chief and assistant chief. Full/Active Members also vote on member expulsion, amendments to the Constitution, fund-raising ideas, and paying monthly bills. None of the petitioned-for full-time firefighters are members. Certain volunteer and per diem firefighters, including Beau Makinster and John Van Hagn, are members.

Each of the four full-time firefighters works 45 hours per week. Three work one 24-hour shift and one 21-hour shift each week. The fourth works five nine hour day shifts each week. Full-time firefighters earn approximately $21.00 per hour, and are eligible for overtime pay.

Per diem firefighters work Saturdays and other open shifts as needed. A standard per diem shift lasts fifteen hours. From January 12, 2017 through June 1, five per diem firefighters worked a total of 459.5 hours.3 Per diem firefighters earn $13.50 per hour.4

Full-time firefighters all earn and maintain the New York State career firefighter certification (called a 229 certification)5 and emergency medical technician ("EMT") certification. Per diem and volunteer firefighters are not expected to maintain either certification. Rather, per diem and volunteer firefighters are expected to obtain a first responder certification. The record does not establish if any per diem firefighters maintain either a 229 certification or an EMT certification.

Full-time firefighters are eligible for health insurance through the Employer on a shared cost basis, receive paid holidays, earn paid vacation time and are eligible for paid sick time, personal leave and bereavement leave. The Employer also contributes 3% of the salary of each full-time firefighter into a retirement account. Per diem firefighters are not eligible for health insurance through the Employer, do not receive paid holidays, are not eligible for any form of paid leave, and do not receive any retirement benefits.

The Employer provides full-time firefighters with dark navy blue uniform clothing,6 and are expected to wear the uniform while on duty. Full-time firefighters are eligible to be reimbursed $75 per year for footwear. Record testimony establishes that per diem and volunteers firefighters wear a light blue uniform, though the employee handbook indicates that per diem firefighters are provided with "shirts and pants at the discretion of the Fire chief."

At least one paid firefighter (full-time or per diem) works at all times. When a call comes in to the station requiring a response, the paid firefighter responds as well as any volunteer firefighters that are available. Generally, paid firefighters drive and clean the fire trucks. All firefighters, paid or volunteer, perform the same duties when responding to a call for assistance in the community.

When a full-time firefighter starts work, he or she checks the work vehicles to make sure all necessary equipment is in place and water tanks are stocked. Afterwards, the full-time firefighters will perform tasks as assigned by management. These tasks include truck maintenance, hose testing or shop clean up. Per diem firefighters rarely perform truck maintenance or shop clean up, and do not perform hose testing.

Jurisdiction

As a threshold issue, the Employer argues, citing Res-Care, Inc., 280 NLRB 670 (1986) that it is exempt from the Board's jurisdiction because the Town of Elmira Fire District No. 1, a political subdivision, is its sole revenue source and controls the terms and conditions of the employees of the Employer, thereby precluding the possibility of meaningful bargaining. In Management Training Corp., 317 NLRB 1355 (1995), the Board overturned its decision in Res- Care, and held that it would only consider whether the employer meets the definition of 'employer' under Section 2(2) of the Act in deciding whether the Board will exercise jurisdiction over a private sector employer, such as the Employer, who works under contracts with federal, state, or local governments. Management Training Corp., 317 NLRB at 1358. As such, the Employer's argument that it is exempt from the Board's jurisdiction based on the Board's reasoning in Res-Care lacks merit.7

Regarding monetary jurisdiction, the Board applies the nonretail standard8 to nonprofit corporations providing fire protection services. See Florence Volunteer Fire Department, Inc., 265 NLRB 955 (1982); Mansfield Volunteer Fire Company, Inc., 316 NLRB 216 (1995). The record reflects that the Employer performed services valued in excess of $50,000 for various entities which entities in turn engaged directly in interstate commerce, and therefore the Employer meets the Board's monetary jurisdictional standard.

As such, I find that the Employer is subject to the Board's jurisdiction.

Managerial Employees

As noted above, the Employer has stipulated that per diem employees Levalley and Van Hagn are supervisors within the meaning of Section 2(11) of the Act and are therefore excluded from any bargaining unit found appropriate.

Additionally, Duvall is a member of the Board. Board members influence Employer policies and vote on a variety of terms and conditions affecting employees. As such, I find that all members of the Board, including Duvall, are managerial employees and therefore excluded from any proposed bargaining unit. See Florence Volunteer Fire Department, 265 NLRB at 956 (finding that the Board has excluded, as managerial employees, those employees who are in a position to influence management policy).

Per diem employee Beau Makinster is a member of the Employer. Members nominate and elect all Officers, Directors, and the Chief and Assistant Chief, and as such have an influence on management policies. Therefore, I find that all Employer members, including Makinster, are managerial employees and therefore excluded from any proposed bargaining unit. Id.

Appropriate Unit

The Employer further argues that the unit sought by the Union is not appropriate, and that that the unit should also include all per diem firefighters employed by the Employer. At this time, there is only one per diem firefighter who would not otherwise be excluded because of supervisory or managerial status. As will be discussed later, even if the only appropriate unit had to include non-supervisory, non-managerial per diem firefighters, this particular firefighter would not be eligible to vote in this election. As set forth below, however, I also find that a unit comprised of full-time firefighters is appropriate.

The Act does not require a petitioner to seek representation of employees in the most appropriate unit possible, but only in an appropriate unit. Overnite Transportation Co., 322 NLRB 723, 723 (1996). Thus, the Board first determines whether the unit proposed by the petitioner is appropriate. When the Board determines that the unit sought by a petitioner is readily identifiable and employees in the unit share a community of interest, the Board will find the petitioned-for unit to be appropriate, despite a contention that the unit of employees could be placed in a larger unit which would also be appropriate or more appropriate, unless the party so contending demonstrates that employees in the larger unit share an "overwhelming community of interest" with those in the petitioned-for unit. Specialty Healthcare, 357 NLRB at 944.

The full-time firefighters share a community of interest

In determining whether the job classifications sought by Petitioner are readily identifiable and share a community of interest, the Board considers whether the employees sought are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount of job overlap between classifications; are functionally integrated with the Employer's other employees; have frequent contact with the other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised. United Operations, Inc., 338 NLRB 123 (2002). Particularly important in considering whether the unit sought is appropriate are the organization of the plant and the utilization of skills. Gustave Fisher, Inc., 256 NLRB 1069, fn. 5 (1981); see also Specialty Healthcare, 357 NLRB at 942 fn. 19. However, all relevant factors must be weighed in determining community of interest.

I find that the petitioned-for unit is an appropriate unit because the full-time firefighters share a community of interest. The full-time firefighters all work out of the same location, perform the same work alongside each other, work similar hours, are trained similarly, have common supervision and share similar terms and conditions of employment, including wage rates and benefits.

Accordingly, I conclude that the petitioned-for unit is appropriate for the purposes of collective bargaining.

The per diem firefighters do not share an overwhelming community of interest with the full-time firefighters

Additional employees share an overwhelming community of interest with a petitioned-for unit only when there "is no legitimate basis upon which to exclude [the] employees from" the larger unit because the traditional community of-interest factors "overlap almost completely." Specialty Healthcare, 357 NLRB at 944-946, fn. 28 (quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-422 (D.C. Cir. 2008)). The burden of demonstrating the existence of an overwhelming community of interest is on the party asserting it. Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015, 2017 fn. 8 (2011).

I find that the per diem firefighters do not share such an overwhelming community of interest with the full-time firefighters so as to deny the petitioned-for unit. While per diem firefighters and the full-time firefighters on the job, do report to the same supervisors and jointly respond to calls, unlike full-time firefighters, per diem firefighters rarely perform truck maintenance or shop clean up, and do not perform hose testing. Further, full-time firefighters work vastly different shifts and hours than per diem firefighters. In addition, full-time firefighters earn a much higher wage and have substantially different training and certification standards than per diem firefighters, and unlike per diem firefighters, are eligible for paid holidays, paid leave, health benefits, retirement benefits and a clothing allowance. Per diem and full-time firefighters also wear different uniforms while at work.

The Employer has not met its burden in establishing that the full-time and per diem firefighters share an overwhelming community of interest. Therefore, I find that the petitioned- for unit is an appropriate unit.

Furthermore, even if the per diem firefighters shared an overwhelming community of interest with the petitioned-for unit, the one remaining per diem firefighter, Arthur F. Sullivan, who is not otherwise excluded from the unit sought by the Employer, did not work a sufficient number of hours to be included in the unit.9 Davison-Paxon, 185 NLRB 21 (1970). Under the Davison-Paxon formula used to determine voter eligibility, an employee is considered to have a sufficient regularity of employment to demonstrate a community of interest with unit employees if that employee regularly averages four or more hours of work per week for the last quarter prior to the eligibility date. As Sullivan only worked 39 hours from January 1 to June 1, 2017, he has not satisfied the Davison-Paxon eligibility requirements and would be ineligible to vote even if the unit included per diem firefighters.

Conclusion

Based on the entire record in this matter and in accordance with the discussion above, I conclude and find as follows:

1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.

2. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein.

3. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer.10

4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.

5. The following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act, and I direct an election for those employees, who constitute an appropriate unit for collective bargaining:

All full-time firefighters; but excluding per diem firefighters, volunteer firefighters, clerical employees, professional employees and supervisors as defined in the Act, and all other employees.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret ballot election among the employees in the unit found appropriate above. Employees will vote whether or not they wish to be represented for purposes of collective bargaining by the ELMIRA PROFESSIONAL FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 709.

A. Election Details

The election will be held on June 28, 2017 from 9:00 a.m. to 12:00 p.m. in the break room located in the fire hall at 1299 West Water Street, Elmira, New York.

B. Voting Eligibility

Eligible to vote are those in the unit who were employed during the payroll period ending June 8, 2017, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off.

Employees engaged in an economic strike, who have retained their status as strikers and who have not been permanently replaced, are also eligible to vote. In addition, in an economic strike that commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements, are eligible to vote. Unit employees in the military services of the United States may vote if they appear in person at the polls.

Ineligible to vote are (1) employees who have quit or been discharged for cause since the designated payroll period; (2) striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date; and (3) employees who are engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced.

C. Voter List

As required by Section 102.67(l) of the Board's Rules and Regulations, the Employer must provide the Regional Director and parties named in this decision a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters.

To be timely filed and served, the list must be received by the Regional Director and the parties by Tuesday, June 20, 2017. The list must be accompanied by a certificate of service showing service on all parties. The Region will no longer serve the voter list.

Unless the Employer certifies that it does not possess the capacity to produce the list in the required form, the list must be provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with Microsoft Word (.doc or docx). The first column of the list must begin with each employee's last name and the list must be alphabetized (overall or by department) by last name. Because the list will be used during the election, the font size of the list must be the equivalent of Times New Roman 10 or larger. That font does not need to be used but the font must be that size or larger. A sample, optional form for the list is provided on the NLRB website at www.nlrb.gov/what-we-do/conduct-elections/representation-case-rules- effective-april-14-2015.

When feasible, the list shall be filed electronically with the Region and served electronically on the other parties named in this decision. The list may be electronically filed with the Region by using the E-filing system on the Agency's website at www.nlrb.gov. Once the website is accessed, click on E-File Documents, enter the NLRB Case Number, and follow the detailed instructions.

Failure to comply with the above requirements will be grounds for setting aside the election whenever proper and timely objections are filed. However, the Employer may not object to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure.

No party shall use the voter list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.

D. Posting of Notices of Election

Pursuant to Section 102.67(k) of the Board's Rules, the Employer must post copies of the Notice of Election accompanying this Decision in conspicuous places, including all places where notices to employees in the unit found appropriate are customarily posted. The Notice must be posted so all pages of the Notice are simultaneously visible. In addition, if the Employer customarily communicates electronically with some or all of the employees in the unit found appropriate, the Employer must also distribute the Notice of Election electronically to those employees. The Employer must post copies of the Notice at least 3 full working days prior to 12:01 a.m. on the day of the election and copies must remain posted until the end of the election. For purposes of posting, working day means an entire 24-hour period excluding Saturdays, Sundays, and holidays. However, a party shall be stopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution. Failure to follow the posting requirements set forth above will be grounds for setting aside the election if proper and timely objections are filed.

RIGHT TO REQUEST REVIEW

Pursuant to Section 102.67 of the Board's Rules and Regulations, a request for review may be filed with the Board at any time following the issuance of this Decision until 14 days after a final disposition of the proceeding by the Regional Director. Accordingly, a party is not

precluded from filing a request for review of this decision after the election on the grounds that it did not file a request for review of this Decision prior to the election. The request for review must conform to the requirements of Section 102.67 of the Board's Rules and Regulations.

A request for review may be E-Filed through the Agency's website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must serve a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review.

Neither the filing of a request for review nor the Board's granting a request for review will stay the election in this matter unless specifically ordered by the Board.

Dated: June 16, 2017

IsI Paul J. Murphy

PAUL J. MURPHY

REGIONAL DIRECTOR

NATIONAL LABOR RELATIONS BOARD REGION 03

130 S Elmwood Ave Ste. 630

Buffalo, NY 14202-2465.