March 14--Emmaus
residents could pay 10 times more for firefighters' salaries if the latest
court decision in a three-and-half-year legal battle proves to be the final
word.
The unique relationship
between Emmaus and the borough's paid firefighters gives the latterthe ability
to unionize under state law, a Commonwealth Court panel ruled Monday.
Because the borough pays
the firefighters an hourly wages and controls their work schedule, hiring and
discipline, the firefighters are borough employees and eligible to unionize
under Act 111, the state law that governs collective bargaining by police and
firefighters, the court found.
The 4-3 decision upholds
an order by the Pennsylvania Labor Relations Board in 2014 that authorized the
borough's firefighters to form a union and negotiate contracts with the
borough.
The borough could still
appeal the ruling to the state Supreme Court. 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 last year.
The majority, in a
decision by Judge Patricia McCullough, found the labor board correctly
determined that an employer-employee relationship exists between the borough
and firefighters. The majority rejected the borough's arguments that it is
permitted by law to provide financial assistance to fire companies and certain
benefits to volunteer firefighters, including pensions and insurance.
Emmaus went beyond what
the laws require, the majority said, noting none of the laws governing
municipal interaction with volunteer fire departments require the borough to
pay members hourly wages or control the work firefighters do.
"Instead, the
borough ... took the measures necessary to confer upon it the status of
employer and create an employment relationship with the firefighters as
employees," McCullough wrote.
Three judges joined in a
dissenting opinion, saying they would side with Emmaus because a number of
state laws permit volunteer firefighters to receive financial benefits and
remain volunteers.
"Moreover, these
statutes demonstrate the General Assembly's intent to permit volunteer
firefighters to receive some compensation for their services, and be
statutorily defined as 'employees' not withstanding the fact they retain their
status as volunteers," Judge Renee Cohn Jubelirer wrote.
Borough Council must decide
whether to appeal to the Supreme Court, although the state's high court takes
only a small fraction of the cases that come before it. Attorney Thomas
Dinkelacker, who represented the borough, did not return a call Monday. Troy
Raab, president of the Emmaus Professional Firefighters Association, said he
could not comment on the decision.
The dispute began in
2013, when some firefighters sought to unionize, and the Pennsylvania
Professional Fire Fighters Association petitioned the labor board to be certified
to represent the Emmaus firefighters.
The labor board ruled in
2014 that three dozen firefighters were in fact borough employees who could
unionize. The borough appealed the ruling to the Commonwealth Court, and a
three-judge panel heard the first round of oral arguments in June 2015. Without
ruling, the court ordered additional arguments before a seven-judge panel a
year later.
The Pennsylvania State
Association of Boroughs and the Pennsylvania State Association of Township
Supervisors wrote briefs supporting the borough's argument that allowing the
firefighters to unionize imperil municipalities across the state.
In their own legal
briefs, the labor board and firefighters union called this a
"hysterical" claim. They also argued the Commonwealth Court's
potential reversal of the labor board ruling would "establish a roadmap
for municipal employers to use when seeking to improperly avoid [labor board]
jurisdiction and deny employees their statutory rights."
The dispute has cost the
borough more than $160,000, mostly in legal fees related to the court case and
contract negotiations with the firefighters union.
According to the opinion,
the borough adopted an ordinance in 1999 establishing the fire department and
its leadership, reserving power to appoint officers, enact rules and set
salaries for Borough Council. The borough's budget includes the department's
operating expenses. The borough secretary and fire chief manage the department.
Borough firefighters must
apply to the fire chief and be approved by Borough Council. Firefighters are
paid $10 to $15 per hour, but may be required to work beyond the end of a shift
as an unpaid volunteer, the opinion says.
The majority said the
fact that the firefighters are paid is "sufficient to take a worker out of
the realm of being a 'volunteer.'" But, the judges found, the facts that
the fire department is managed by borough employees who are in charge of
hiring, scheduling and disciplining firefighters makes the firefighters
employees.
___ (c)2017 The Morning
Call (Allentown, Pa.) Visit The Morning Call (Allentown, Pa.) at www.mcall.com
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Source: Firehouse.com
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