March 21–Emmaus Borough Council has decided to take its three-and-a-half-year legal battle with organized firefighters to the state’s court of last resort.
Borough Council voted unanimously Monday to authorize its solicitor to appeal to the Supreme Court of Pennsylvania a lower court ruling that Emmaus firefighters have an unusual employment relationship with the borough allowing them to form a union and negotiate contracts.
It could take the state Supreme Court months to decide whether to hear the appeal. And if the court does take the case, the borough and the Emmaus Fire Department could remain in limbo for another few years.
A Commonwealth Court en banc panel last week affirmed by a 4-3 vote a 2014 Pennsylvania Labor Relations Board decision allowing three dozen firefighters to form the Emmaus Professional Firefighters Association and join the International Association of Fire Fighters.
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.
Borough officials declined to comment after the vote — Council President Brent Labenberg said the case “speaks for itself.”
A handful of members of the Emmaus Professional Firefighters Association attended the meeting. The organization said in a statement that it “strongly believes” Borough Council is being misguided by its legal team — solicitors Thomas Dinkelacker and Jeffrey Dimmich.
“At this point it appears our council is focusing on the fiscal aspects, which we have yet to formally discuss, more so than that of the public safety to the residents of the Borough of Emmaus,” the association said. “The firefighters will continue to do everything we can within our power to proudly serve and protect our citizens while the Supreme Court examines this case further.”
According to the Commonwealth Court majority 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. The borough secretary and fire chief manage the department.
Because the borough pays the firefighters an hourly wages and controls their work schedule, hiring and discipline, the court found that the firefighters are borough employees and eligible to unionize under Act 111, the state law that governs collective bargaining by police and firefighters.
The borough argued that state statutes require — not merely permit — Council to ensure fire services are provided within the borough “by the means and to the extent determined by the borough,” including financial and administrative assistance for these services.
Three judges agreed, and their dissenting opinion expressed bewilderment that the majority ignored a “vast statutory framework” while analyzing the facts of the case.
“Facts that might suggest an employment relationship in other employment situations may not necessarily (and here do not) signify the intent to create such relationship between the volunteer firefighters and the municipalities they serve, but could be the result of the municipality providing the assistance and aid permitted by these various laws,” Judge Renee Cohn Jubelirer wrote. “There has to be a determination whether the municipality’s actions intended to create an employment relationship or were simply intended to provide aid and assistance as approved by the statutory framework.”
Judge Patricia McCullough, author of the majority opinion, noted that the dissent “does not discuss any statute or statutory scheme that requires a municipality to exert this type of control over a volunteer fire company.”
“There has to be a point where volunteer firefighters become employees of a municipality for the purposes of Act 111,” she wrote. “…We view Act 111 and the statutes that the Borough and the Dissent cite as capable of concurrent operation.”
As of June 2016, the dispute had cost the borough more than $160,000, mostly in legal fees related to the court case.
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