Volunteers or employees? Emmaus firefighters case returns to Commonwealth Court

June 08--EMMAUS -- The Borough of Emmaus will get another chance Wednesday to tell the Commonwealth Court why its firefighters should not be considered borough employees who are entitled to unionize, contrary to an earlier Pennsylvania Labor Relations Board order.

Here's a refresher on a case that both the borough and the PLRB say could create a dangerous precedent.

How did we get here?

In 1994, with Borough Council's approval, former Fire Chief Robert Reiss began paying volunteer firefighters part-time hourly wages as a recruitment and retention strategy.

Though many municipalities provide their volunteer fire departments with financial assistance, Emmaus issues firefighters payroll checks and W-2 tax forms, and a borough secretary manages some day-to-day department operations like shift scheduling.

In 2013, some firefighters sought to unionize, and the Pennsylvania Professional Fire Fighters Association petitioned the PLRB to be certified to represent the Emmaus firefighters. The PLRB ruled in 2014 that three dozen firefighters were in fact borough employees who could unionize.

The borough appealed the ruling to the Commonwealth Court, insisting the PLRB had overreached in creating a employment relationship based on the payment structure.

The Pennsylvania State Association of Boroughs and the Pennsylvania State Association of Township Supervisors wrote amici curiae supporting the borough's argument that allowing the firefighters to unionize would puncture the sustainability of volunteer fire departments across the state.

In their own legal briefs, the PLRB and firefighters union dismissed this claim as a hysterical "parade of horribles." In fact, they argued, the Commonwealth Court's reversal of the PLRB ruling would "establish a roadmap for municipal employers to use when seeking to improperly avoid PLRB jurisdiction and deny employees their statutory rights."

In June 2015, a three-judge panel heard the first round of oral arguments. The borough expected a decision within two months but didn't hear back from the Court until this spring.

The Court ordered additional specific arguments, before an en banc panel, on the parameters that should be used to define the employment relationship between the firefighters and the borough.

Why do the parameters matter?

The Court could choose to characterize the employment relationship by mainly applying a three-pronged test established in the 1974 Sweet vs. PLRB state Supreme Court decision.

Per the Sweet test, a group of public workers can collectively bargain if their employer has the right to select an employee, the power to discipline an employee and the right to regulate an employee's work.

On the other hand, the Court could decide to also consider municipal and state laws that reflect a "distinct and unique relationship" between volunteer firefighters and the municipalities they serve.

Evidently, the borough will argue for the latter, though attorney Thomas Dinkelacker has previously claimed any employment relationship with the fire department doesn't pass the Sweet test, either.

In ordering additional oral arguments, he said in June, the Court has signaled this could potentially be a "very significant case in the realm of public employment."

What does the PLRB say about the Sweet test?

The PLRB declined to comment prior to Wednesday's oral arguments. But in previous legal briefs, the PLRB has argued the firefighters should be able to unionize if the employment relationship is mainly determined by the Sweet test.

Regardless of the unusual compensation scheme, the PLRB argues the borough still exercises a unique level of authority and control over the department and hit each prong:

--Council selects firefighters by approving the hires made by the fire chief, a full-time borough employee.

--Firefighters are subject to borough rules, operating procedures and regulations as defined by a 1999 borough ordinance, and they can be disciplined or discharged if they do not follow them.

--The borough regulates firefighters' work by scheduling shifts and reviewing timecards, among other things.

"Any 'arm's-length' relationship the borough may have intended or now suggests to this court is today a mere fiction," attorney Matthew Areman, representing the firefighters union, wrote in a legal brief.

What else is the borough arguing?

The borough points out that state statutes require -- not merely permit -- Council to ensure fire services are provided within the borough "by the means and to the extent determined by the borough," including financial and administrative assistance for these services.

Council has the duty to fix the compensation of all borough officers, appointees and employees, all of whom are subject to borough policies, Dinkelacker has argued.

"To suggest that (the borough) cannot enforce policies without creating an employment relationship is inconceivable," Dinkelacker wrote. "Such a conclusion ignores the state of the law, the realities of a litigious society and the requirements of insurance companies."

Emmaus and its backers also claim a ruling in favor of the PLRB would expose boroughs to criminal and civil liabilities for violating civil service provisions and the federal Veterans' Preference Act, which have not been applied to firefighters because they were considered volunteers.

Should other municipalities actually be worried?

It's hard to say at this point. But consider this: volunteer fire departments generate $8.6 billion a year in tax savings, according to the Pennsylvania Fire and Emergency Services Institute.

Municipalities appreciate the enormity of this support and offer administrative and financial assistance to volunteer fire departments to maintain it, PSATS attorney Scott Coburn pointed out in a legal brief.

"If that type of assistance and financial contributions lead to decisions such as that issued by the (PLRB), then other municipal governments similarly situated to the borough and by extension taxpayers may ultimately face significant financial impacts in the form of higher taxes or reduced services," Coburn wrote.

The key word is may; even if the Court affirms the PLRB's final order, it could make clear in its ruling that the scope is limited to the particular details of this case.

What has this cost the borough?

About $162,000 since the start of 2014, mostly in legal fees related to the court case and contract negotiations with the firefighters union.

Based on an initial proposal the union presented Borough Council more than a year ago, a contract could cost more than $2 million annually.

By comparison, Emmaus budgeted about $202,000 for firefighter wages this year.

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