Labor Board Says PA Firefighters Can Unionize

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 Distributed by Tribune Content Agency, LLC.