September 21, 2020

Union violated law by discouraging volunteer firefighters


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house fireBy Lizzy McLellan, From The Legal Intelligencer

A firefighters’ union was in violation of labor law provisions when it told volunteer firefighters to refrain from responding to fires in the Chambersburg Borough, the Commonwealth Court has ruled.

In a case of first impression, a split three-judge panel said the union’s coercion of the volunteers was an unfair labor practice.

In so holding, the Commonwealth Court reversed a decision of the Pennsylvania Labor Relations Board that the union had not engaged in unlawful action. The court also said the board was wrong in its decision that the discipline of shift captain Patrick Martin, who wrote the letter telling volunteers not to respond to fires, was an unfair practice.

The definition of “secondary boycott” under the Pennsylvania Labor Relations Act presented an issue of first impression, Judge Reneé Cohn Jubelirer wrote in a 27-page opinion issued Dec. 4 in Chambersburg Borough v. Pennsylvania Labor Relations Board.

“The union used its disciplinary machinery to induce and encourage the Franklin volunteers to refrain from providing fire prevention and emergency services when Franklin was called upon to assist the borough,” Jubelirer wrote on behalf of herself and Judge Mary Hannah Leavitt. “As with the [National Labor Relations Board], the use of discipline by the union under the circumstances of this case tends to frustrate the commonwealth’s policy against secondary boycotts.”

Senior Judge Rochelle S. Friedman filed a dissent, which said the majority exceeded the court’s scope of review.

“A work stoppage did not occur in this case,” Friedman wrote. “Section 6(2)(d) of the PLRA does not contain the words ‘induce or encourage.’ Therefore, I would agree with the board that an actual strike or cessation of services by a neutral employer must occur for a labor organization to violate the first clause of Section 6(2)(d) of the PLRA.”

The issue arose out of the Chambersburg Borough Council’s decision to downsize its paid firefighter force. Borough officials told the Local 1813 Union, a chapter of the International Association of Fire Fighters, about the borough’s plans in 2011 through the chapter president, Martin, the Commonwealth Court opinion said.

After receiving the news, Martin sent a letter to 200 union members, including 24 volunteer firefighters at the Franklin Fire Company No. 4, Jubelirer wrote. The letter requested that the members refrain from providing volunteer firefighting services to the Chambersburg Borough.

The borough fire department and Franklin company operated under a mutual aid agreement, which authorized Franklin to respond to emergencies in the borough, the opinion said, and Franklin is the only company in the borough that has heavy rescue equipment for removing people trapped in vehicles or buildings.

Later, 10 Franklin volunteers who were members of the union faced internal misconduct charges for continuing to volunteer in the borough, the opinion said.

“The objective of the letter was to force Franklin to refrain from dealing with the borough in accordance with the mutual aid agreement so that the borough would no longer have the equipment and manpower necessary to protect its citizenry,” Jubelirer wrote. “This reduction in equipment and manpower would force the borough not to furlough paid firefighters.”

The borough launched an investigation into Martin’s actions and suspended him for 240 hours, Jubelirer wrote. It also filed a charge of unfair labor practices against the union because of the letter.

The union countered, filing a charge of unfair labor practice against the borough for suspending Martin, the opinion said.

In its complaint, the borough alleged that the union violated the PLRA by engaging in a secondary boycott and by hindering fire-prevention services through coercion of volunteer firefighters.

The PLRB determined that there was no secondary boycott because Franklin was not independent of the labor dispute at issue, Jubelirer wrote.

The majority had to analyze the meaning of the term “secondary boycott”—which is not defined in Pennsylvania law—before coming to its own decision. In so doing, the majority referred to Section 8(b)(4) of the National Labor Relations Act, which addresses secondary boycotts.

“The term ‘secondary boycott’ is not defined in the PLRA and the meaning of the phrase ‘to engage in a secondary boycott’ is an issue of first impression,” wrote Jubelirer.

Following federal interpretation, she wrote, the term proscribes union pressures used to induce a secondary employer to withhold its services, and does not require a strike or work stoppage to have occurred. Because it decided the letter violated the law, the court also concluded that Martin’s suspension was not an unfair labor practice.

“We felt that if sending a letter requesting volunteer firefighters not to respond to a fire in our municipality, if that’s not asking for a secondary boycott, then what is?” said G. Bryan Salzmann, solicitor for the borough, who worked with Scott T. Wyland, Isaac P. Wakefield and Melissa L. Kelso of Salzmann Hughes on the case.

The case involving Martin’s letter is one of several recent or ongoing cases related to the borough’s relationship with firefighters, said Salzmann.

One of them involves Scott McNew, the vice president of the union, who wrote a letter after Martin was disciplined listing the names of volunteers who had shown at incident sites, and threatening action against them, Salzmann said. McNew was fired for issuing the letter, Salzmann said, and filed a claim with the PLRB.

“This is about public health and safety,” Salzmann said. “You’re relying upon your volunteers to provide that specialized service.”

The Pennsylvania Labor Relations Board declined to comment on the decision.

John R. Bielski and Richard G. Poulson of Willig, Williams & Davidson, attorneys for the IAFF, an intervenor in the case, did not return a call seeking comment.

The Commonwealth Court’s opinion on the union’s conduct came less than one month after a decision by the Franklin County Court of Common Pleas that Chambersburg’s town council had the power to lay off firefighters, following the council’s contemplation of layoffs in 2012.

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