Court weighs if volunteer firefighters can unionize

Though many municipalities provide their volunteer fire departments with financial assistance, Emmaus issues firefighters payroll checks and W-2 tax forms


By Andrew Wagaman
The Morning Call

HARRISBURG, Pa. — A full bench of Commonwealth Court judges questioned Wednesday whether Emmaus had exceeded state requirements to provide adequate fire services, creating an unusual employment relationship that gives its firefighters the right to unionize.

The clearly ambivalent seven-judge panel went out of its way to acknowledge that members of volunteer fire departments provide essential, life-saving services that distinguish them from any other kind of municipal volunteer.

But they also wondered if Emmaus took a unique approach in both exerting considerable control over its volunteer fire department and paying members hourly wages.

Judge P. Kevin Brobson said he was “struggling” with the specific details of the borough’s relationship with its fire department because “there seems to be a concern we are creating this huge rule.”

He noted there are “any number of ways” for a borough to fulfill its statutory obligations. He asked Thomas Dinkelacker, an attorney for Emmaus, if the borough had “crossed a line” into an employer/employee relationship subject to collective bargaining law.

Dinkelacker argued that members of the volunteer fire department were never actually hired, which he said is necessary to create an employment relationship for the purpose of collective bargaining.

He argued the Pennsylvania Labor Relations Board’s 2014 order to recognize the firefighters as employees essentially had created an employment relationship, and forcing the borough to “retroactively hire” the firefighters is an abuse of their authority.

Warren Mowery, an attorney for the PLRB, and Matthew Areman, an attorney for the Pennsylvania Professional Fire Fighters Association, said the borough had in fact hired the firefighters by providing an hourly wage and approving firefighter selections made by the fire department.

Areman also claimed there was no one factor, but “heaps of factors” demonstrating how Emmaus had exceeded statutory requirements, creating a one-of-a-kind relationship between the borough and the fire department.

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.

Mowery noted the Emmaus fire chief is a borough employee, which is not a statutory requirement, and argued he plays a significant role in the selection of firefighters.

Judge Patricia A. McCullough kept returning to earlier testimony from borough Manager Shane Pepe about his authority to directly discipline firefighters. But Dinkelacker argued Pepe can only discipline firefighters related to certain policies related to insurance or statutes, and that this is no different than in other boroughs.

The dispute began in 2013, when 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, and a three-judge panel heard the first round of oral arguments in June 2015. The Court didn’t order additional arguments until this spring.

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.

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.

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 imperil municipalities across the state.

In their own legal briefs, the PLRB and firefighters union called this a “hysterical” claim. They also argued the Commonwealth Court’s potential 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.”

Judges seemed to take both claims seriously Wednesday. Judge Anne E. Covey asked Areman if the base hourly wage Emmaus firefighters make — about $10 — is lower than other paid companies.

Areman said wages “run the gamut” but added, with a smile, that unionized firefighters “typically make more than $10.”

“That’s why they try to unionize,” he said.

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