City of Des Moines v. Public Employment Relations Board

264 N.W.2d 324, 98 L.R.R.M. (BNA) 2593, 1978 Iowa Sup. LEXIS 1165

• Court: Supreme Court of Iowa
• Decided: March 22, 1978
• Docket: 2-60089
• Status: Published

Opinions

McCORMICK, Justice.

This is an appeal by intervenor Des Moines Association of Professional Firefighters AFL-CIO, Local No. 4, from a district court judgment ordering modification of a Public Employment Relations Board (PER Board) decision. The PER Board ruled that line captains and lieutenants in the Des Moines fire department are not excluded from the public employee bargaining unit as supervisory employees under Code § 20.4(2). Petitioner City of Des Moines obtained review of this decision in district court pursuant to Code § 17A.19. The trial court held the PER Board decision is not supported by substantial evidence and entered judgment requiring the PER Board to modify its decision by excluding the captains and lieutenants from the bargaining unit. Upon intervenor’s appeal, we reverse the trial court.

We have separately decided City of Davenport v. Public Employment Relations Board, Iowa, 264 N.W.2d 307 (filed this date). Principles of review and applicable legal principles are discussed in that case. The sole question here is whether the PER Board decision ascribing nonsupervisory status to Des Moines fire department line captains and lieutenants is supported by substantial evidence.

Intervenor initiated an action before the PER Board in August 1975 to obtain a bargaining unit determination. Evidence was received before a hearing officer in a contested proceeding in October 1975, and in February 1976 the hearing officer issued his findings of fact, conclusions of law and recommended decision. The City appealed to the PER Board pursuant to § 17A.15(3), The Code. One of the three Board members recused himself from hearing the appeal. The remaining two members affirmed the hearing officer, although one of them issued a separate opinion expressing the view that captains and lieutenants who serve as station commanders are supervisory employees.

In relevant part, the findings of fact of the hearing officer are as follows:

The Des Moines Fire Department employs approximately 323 persons, excluding the clerical staff. The department consists of the chief, the assistant to the chief, 10 district chiefs, 22 captains, 39 lieutenants, one maintenance superintendent, one fire marshal, and approximately 248 other persons in admitted non-supervisory ranks. The fire department is one of 12 major departments of the City of Des Moines which are under the direct control of the city manager. The department is responsible for the fire protection of the approximately 65 square miles and over 200,000 persons constituting the City of Des Moines.

The department may be divided into five functional units: administration, consisting of the chief, assistant to the chief, and four dispatchers; maintenance, consisting of the maintenance superintendent and four equipment mechanics; training, consisting of the training officer (who is a district chief), and one captain; fire prevention, consisting of the fire marshal, two senior fire inspectors, and six fire inspectors; and the fire suppression unit, consisting of the remaining department personnel. The training, maintenance, and fire prevention units are staff units which report directly to the administration unit.

The fire suppression unit performs the line functions of the department and is organized into three geographical districts. Two of these districts contain three fire stations while the third district contains four stations. The fire suppression unit operates in three shifts (technically called divisions) of 24 hours each. Each shift of each district is headed by a district chief, and each shift of each station is headed by either a captain or lieutenant depending on the number of companies assigned to the station. A company is made up of a piece of equipment, e. g. a ladder truck, the man assigned to it and the company officer who may be either a captain or a lieutenant. Lieutenants are station commanders in stations comprised of a single company while captains are station commanders at stations of more than one company.

The activities of the fire stations may be divided into four categories: training, house duties, inspections and fire fighting. The responsibilities of captains and lieutenants who are station commanders are identical, except for the number of men and pieces of equipment under their jurisdiction. Lieutenants in stations under the command of captains are not responsible for the operation of the station as a whole, but are responsible for the operation of their company. Such lieutenants do not have the responsibility to assign house work, maintain the station journal, or perform other duties which are the responsibility of the station commander.

Fire fighting activities of the department fall into two general categories: “still” alarms which are generally non-structural fires such as automobile or brush fires; and “regular” alarms, which involve fires in structures such as houses, apartments, or commercial buildings. If the fire is, in a large structure or of a serious nature, additional alarms may be sounded resulting in the assignment of more men and equipment to the fire.

A still alarm fire is generally fought by a single company unless the company officer requests additional help. Many still alarms in Des Moines are fought by “attack wagons”, modified pickup trucks manned by an engineer and a fire fighter (but not a company officer). A regular alarm fire is always responded to by at least two companies and a district chief.

The district chief often arrives first on the fire scene and almost never more than three to five minutes after arrival of the first company. The district chief is in charge of the operation of all companies at the scene, and under his general supervision, company officers instruct their men where to apply water or use smoke ejectors or other such tactical matters. Company officers testified that their decisions were instinctive, based upon their long tenure in the department and extensive training in fire fighting techniques.

In addition to their command at the fire scene, district chiefs are responsible for the activities of the stations within their district. District chiefs are the highest ranking officers on 24 hour duty. They have the authority to transfer men from station to station within their district as personnel needs dictate. They have the final authority to approve “trading time” requests by all personnel within their district. The district chiefs also participate in command staff meetings called by the chief at irregular intervals to formulate departmental policy and the vacation schedule. Absences from all stations must be reported to them by the company commanders. District chiefs, in conjunction with the training officer, approve requests by the company officers to deviate from predetermined training schedules. Only district chiefs have the authority to grant employees sick leave or other forms of emergency leave.

A station commander or “officer in charge” is the highest ranking officer assigned to a station. Single company stations are commanded by a lieutenant; mul-ti-company stations are commanded by a captain. Where the station commander is a captain, the other company is headed by a lieutenant. Station commanders and company officers are responsible for a number of reports describing the station and company activities including inspection reports, brush fire reports, automobile fire reports, and others. Station commanders also keep the station log in which all events of the day are recorded.

Station commanders are responsible for overseeing the house duties at the station. This includes the general custodial work necessary to maintain the stations in a clean and orderly condition. While station commanders may assign these house duties to the men in any manner; the men are generally allowed to pick their duties by seniority.

Company officers are responsible for conducting company training sessions and inspections. The training schedule is determined by the training officer and company officers have no authority to deviate from the schedule without the approval of their respective district chief who in turn contacts the training officer. Training sessions conform with the instructions of the chief, the training officer, and department training manuals. Inspection procedures are highly standardized by departmental policies.

Company officers have no authority to hire, transfer, suspend, lay-off, recall, promote, discharge or reward other employees. Company officers do have some authority in the areas of discipline, adjustment of grievances, and recommendations to their superi- or officers.

The authority of company officers to discipline other employees of the department is limited to oral warnings. For example, company officers have the authority to require a subordinate to correct house work to meet the required standards. More significant disciplinary measures must be sought by “pressing charges” against the subordinate, who also has the right to press charges against a superior officer. The record in this case does not provide any examples of differences in the way a charge originated by a non-officer and an officer would be handled by the chief. The chief testified that he had a practice of investigating disciplinary problems before taking action on them. One officer testified that he had assigned a man to kitchen duties at the headquarters as “punishment” for his activities. The company officer in this ease had been ordered by a superior to provide a man for this duty on that day and his right to use this duty as a disciplinary measure was limited to choosing an employee to perform the assignment.

Company officers prepare monthly evaluations of probationary employees and annual evaluations on permanent employees. District chiefs prepare a separate and independent review of these employees at the same intervals. Chief Williams testified that he generally followed the recommendation of these officers in retaining probationary employees and granting pay increases to permanent employees. If the recommendations of the company officer and the district chief were in opposition, he would conduct an investigation of the matter before taking action.

Promotions within the fire department are pursuant to civil service laws. As a part of this process company officers complete rating forms for individuals eligible for promotion. These ratings determine not more than 10 percent of an employee’s total score. Only persons successfully completing written examinations are placed on the promotional list. The ratings prepared by the officers may be examined by the chief, but he makes the ultimate promotional decision.

The chief makes the initial assignment of men to a particular shift and station. District chiefs, however, have the authority to transfer men from station to station during a shift. Although the record is not entirely clear, it would appear that two district chiefs may arrange the transfer of an employee from one division to another subject to the chief’s approval. The assistant to the chief testified that his recommendation is frequently sought on transfers by the chief. Station commanders have the authority to assign men under their command to a specific piece of equipment. This authority is limited by the rank and qualifications of the men available.

The City of Des Moines has a formal grievance procedure with the following steps: immediate supervisor, department head, employment relations department, and city manager. The City grievance procedure applies to the fire department. The city manager and the chief testified that under this grievance procedure company officers would be the first step. Several company officers testified that they would be the person to whom “gripes” would be brought. Unless the matter was within their power to control, the employee would be referred to a superior officer. Grievances brought by the employee organization are presented to the chief rather than a lower ranking officer. (This system is informal in nature as there is not a written contract or memorandum of agreement between organization and the City).

The assistant to the chief receives 30.5 percent more pay than a district chief. Captains receive 20 percent less than district chiefs and 10 percent more than lieutenants. Lieutenants receive 3.5 percent more than senior fire rescue engineers who are admitted by the Employer to be nonsu-pervisory persons.

Insofar as relevant, the hearing officer’s conclusions of law are as follows:

The remaining positions in dispute are those of lieutenant and captain. Although there are differences between the job duties of lieutenants and captains, on the whole such differences do not require separate handling of these two ranks. The primary difference between these positions is that a captain will always be a station commander while a lieutenant acts as a station commander only in stations housing a single company. The examples of duties which are found in the job descriptions of the fire captain and fire lieutenant are, in as far as they are relevant for this proceeding, identical, thereby permitting these two ranks to be handled in the same manner.

Neither captains nor lieutenants hire, transfer, suspend, lay-off, recall, promote, discharge or reward employees on their own motion. Company officers do assign men to specific pieces of apparatus and to house duties within their stations. I find that these assignments, which are generally given on the basis of either rank or seniority, are routine and clerical in nature and, therefore, not sufficient to find company officers to be supervisors.

Company officers clearly make recommendations concerning the discipline, promotion, retention of probationary employees, and the transfer of permanent personnel of the department. The question to be addressed is whether those recommendations are “effective” as interpreted by the Board. In Davenport Community Schools, supra, a majority of the Board defined effective recommendation as that which,

“under normal policy and circumstances is made at the chief executive level or below, and is approved by higher authority without independent review or de novo consideration as a matter of course. Hence, these effective recommendations, absent unusual or extraordinary circumstances, become operative decisions in the conduct of the public employer’s operations”.

The evaluation reports completed by the company officers are recommendations to the chief concerning the retention of probationary employees and the granting of discretionary step increases to permanent employees of the five department. Using the definition of effective recommendation found in Davenport Schools, neither of these evaluations is adopted by the employer without an independent review since in both cases an independent evaluation is completed by district chiefs. The testimony of the chief indicates that should the district chief and the company officer disagree in their reports, a further investigation is conducted. Thus, the evaluations which are completed by company officers are not approved by “higher authority without independent review or de novo consideration as a matter of course.”

In City of Davenport, PERB Case No. 27, (1975), the Board considered the authority of captains and lieutenants of the department to discipline other employees. There, as here, the authority to discipline was limited to verbal reprimands. There, as here, company officers had the right to press charges against subordinate personnel. There, as here, disciplinary action would not be taken without some independent review of the facts surrounding a discipline problem by the chief or other higher ranking personnel. Company officers in the Davenport ease whose disciplinary authority appears to be identical to that of the company officers in this case were not excluded from the bargaining unit by the Board.

Because rating reports completed by company officers for employees seeking promotion within the department constitute not more than ten percent of the total ranking of employees eligible for promotion, I find that those reports do not constitute an effective recommendation as that term is defined in Davenport Schools, supra. Further, the same process appears to have been followed in the City of Davenport among the fire department personnel there. In that case the Board did not exclude company officers who completed rating reports as a part of the promotional process administered by the Civil Service Commission.

Company officers and station commanders in particular, are “in charge” of the men assigned to them. The exercise of their authority to direct the men under them may be divided into two general activities. The first and larger of these categories is the direction of men at the fire station. The record indicates that functions performed at the fire station, including training, house duties, and maintenance of the equipment, are highly standardized activities as a matter of departmental policy. Inspection work, which is performed by the companies, is also highly routinized by departmental order. Thus, I find that the direction of employees at the fire station is routine and clerical in nature, and does not require the use of independent judgment on the part of the company officers.

The activities of the fire company at the fire scene are also largely standardized by the departmental policies. Company officer decisions at the fire scene include the number of lines to lay to the fire from the nearest hydrant, the size of the hose to use, and the allocation of smoke ejection equipment and other tactical decisions. The district chief maintains the overall supervision of the fire scene and frequently arrives at the scene prior to the other companies. The decisions of the company officers are the result of long experience in the fire service and standardized departmental policies. Decisions made by company officers at still alarm fires, to which no district chief responds, are the same decisions which must be made by engineers and fire fighters assigned to attack wagons. These decisions are again tactical decisions, requiring the officer to decide the number of lines to lay to the fire, and the size of the hose and other such matters. Additionally, at a still alarm fire a company officer may be required to decide whether or not to request additional help. I find that as a whole these decisions are routine in nature, based upon detailed departmental policies for the handling of such fires and the company officers’ training and service in the fire department.

By municipal ordinance the first step of the grievance procedure in the fire department is the immediate supervisor of the grieved employee. By contrast the Act provides that a supervisory employee is one who has the authority to adjust grievances or effectively to recommend such action. Thus, the issue for the Hearing Officer to consider is the authority of captains and lieutenants of the Des Moines Fire Department to adjust grievances. The record indicates that employees bring “gripes” to the station commander for their resolution. Since the authority of company commanders is limited to routine and clerical matters, and absent any additional power in the company officers to take special action based on employee grievances, I find that the authority to company officers to adjust grievances relates only to routine and clerical matters and does not require the use of independent judgment.

The Public Employer, in its brief, makes numerous policy arguments for excluding company officers from collective bargaining units. However, these arguments and the authority cited therein must be considered secondarily to decisions of this Board. In the case of City of Davenport, supra, the Board considered many of the same questions presented to this Hearing Officer and concluded that captains and lieutenants were properly included in the appropriate unit. It is the opinion of the Hearing Officer that there are insufficient distinctions between the Davenport case and this case to come to a contrary conclusion. Thus, I find that the appropriate unit for purposes of collective bargaining within the meaning of [§ 20.13(2), The Code] is:

INCLUDED: All persons engaged in fire fighting or fire prevention who are permanent paid employees of the Fire Department of the City of Des Moines, including the following classifications: fire fighter, fire engineer, senior fire rescue engineer, fire prevention inspector, senior fire prevention inspector, fire lieutenant, fire equipment mechanic, fire dispatcher, and fire captain.

EXCLUDED: Fire chief, assistant to the chief, district chiefs (including training officer), fire marshal, and fire maintenance superintendent.

As shown by the hearing officer’s findings of fact, the evidence in this case is different in some respects from that received in the City of Davenport case. However, when the whole record is viewed, those differences are not significant.

The hearing officer’s conclusions of law disclose the decision in this case is based upon application of the same legal principles as were employed in the City of Davenport PER Board decision.

Our opinion in the City of Davenport case is controlling on the issues involved here. Upon the principles and under the reasoning in that case, the PER Board decision in this case is supported by substantial evidence when the record is viewed as a whole. Consequently, we hold the trial court erred in ordering modification of the PER Board bargaining unit determination.

REVERSED.

All Justices concur except REYNOLD-SON, LeGRAND and REES, who dissent.