The Ever Expanding Scope of Union Representation Rights

How changes to the definition of “supervisor” and possible changes in the interpretation of “volunteer” threaten Oregon’s labor relations’ landscape

Will fire agencies get hosed by changes in the definition of supervisor?

On March 10, 2014 Governor Kitzhaber signed a law (SB 1518) changing the definition of supervisor for public employees in firefighting positions. The new law dramatically changes a decades old definition of supervisor. Under the old statute, employees in the public fire services were considered supervisors if they used their independent judgment to perform a wide variety of supervisory functions, including effectively recommending discipline. The new statute requires fire service employees to “have the authority to hire, discharge or impose economic discipline,” e.g. suspensions, demotions, etc., in order to be supervisors.

Historically, many public sector employers have limited the authority to hire, fire and impose economic discipline to individuals in top-level positions. In contrast, supervisors have played the all-important role of making recommendations. This was done to assure employee rights are protected and liability avoided under increasingly complicated labor and employment laws.

The new law paves the way for the International Association of Firefighters (IAFF) to claim that those who lack the independent authority to hire, discharge or impose other economic sanctions belong in IAFF bargaining units.  IAFF’s reaction to the signing of SB 1518 by the governor was immediate. On the same day the bill was signed, the IAFF Local representing the City of Medford filed representation petitions with the Employment Relations Board seeking to have Battalion Chiefs, who have traditionally been considered supervisors, added to the existing bargaining unit, or alternatively recognized as a separate bargaining unit. The City of Salem and other jurisdictions have received similar filings.

Having individuals who are able to directly observe employee work performance serve as supervisors is of fundamental importance to effective management of any organization. The reaction from employers who are trying to preserve the supervisory status of key fire service employees has been equally swift. Employers who did not change their job descriptions prior to the passage of SB 1518 to clarify the authority of supervisors to impose economic sanctions are now doing so. Those who are pursuing this course of action are relying on language in SB 1518, which provides that the new definition of supervisor “applies only to collective bargaining agreements executed on or after the effective date of the Act” (March 10th). They are also challenging the right of

IAFF Locals to bypass ERB’s unit clarification procedures for determining supervisory status by filing under the representation petitions provisions of PECBA. It is also expected that IAFF Locals will challenge the right of employers to unilaterally change job descriptions for employees historically considered supervisors after the passage of SB 1518.

The issues created by the passage of SB 1518 are issues of first impression that will be played out in representation and unfair labor practice proceedings before the ERB. Local governments that do not want the changed definition spread to police and other bargaining units are well advised to shore up job descriptions before the next Oregon legislative session. They are also encouraged to join forces to oppose efforts to expand the new definition of supervisor beyond fire service employees.

Another burning question: What about volunteers?

The right of public sector employers to utilize fire volunteers, particularly resident volunteers and interns, is also under scrutiny. This issue is complicated because who is deemed a “volunteer” varies depending on the particular statute in question. What employers do to comply with one statute may affect their ability to preserve volunteer status under another statute.

For example, PERS has taken the position that volunteers receiving any stipend or nominal fee compensation in W-2 wages may be employees for the purpose of public employee retirement benefits. The DOL regulations used to enforce federal wage and hour laws, by contrast, permit payment of nominal fees to volunteers without creating employee status. However, in recent enforcement proceedings by the DOL against an Oregon fire district, the DOL changed its interpretation of “nominal fee” to make it more difficult for that district to preserve volunteer status.

Under PECBA only statutorily defined “employees” are entitled to collective bargaining rights, not volunteers. PECBA also expressly provides that the use of volunteers is not considered subcontracting of bargaining unit work. The term “volunteer” is not, however, statutorily defined and ERB has not directly addressed distinctions between employees vs. volunteers.  In evaluating employee status generally, ERB looks at a combination of factors including compensation and right of control.

One might think that claims that volunteers are really employees won’t be made, that the spirit of volunteerism is too sacred to be challenged.  Let’s hope that is true. But then, who would have thought the National Labor Relations Board would issue a decision finding NCAA student athletes were “employees” entitled to collective bargaining rights under the federal labor law governing the private sector?

Stay abreast of new developments. Review current practices to preserve the volunteer status of those who serve in that critical capacity.

— Kathy Peck