Rural Fire Protection Co.

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 584 (N.L.R.B. 1975)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rural Fire Protection Company and International
Association of Fire Fighters , AFL-CIO, CLC,
Petitioner. Case 28-RC-2650
February 14, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition duly filed under 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Edward N.
Grossman of the National Labor Relations Board.
Following the close of the hearing, the Employer and
the Petitioner filed briefs. On April 22, 1974, the
Regional Director for Region 28 transferred this case
to the Board for a decision and, thereafter, the
Employer and the Petitioner filed supplemental
briefs to the Board.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
The Petitioner seeks to represent certain employees
working as firefighters for the Employer in the city of
Scottsdale and the adjacent Paradise Valley area of
Arizona.' The Employer contends that the petition
should be dismissed for jurisdictional reasons. We
are in agreement with this contention.
The Employer and its wholly owned subsidiaries,
all private Arizona corporations, provide fire sup-
pression, fire prevention, fire investigation, security,
first-aid, rescue, and ambulance services to munici-
palities, fire districts, businesses, and individual
subscribers in the State of Arizona. In this proceed-
ing, Petitioner seeks a unit of employees who are
engaged in providing fire protection and related
services to the city of Scottsdale and to residents of
the adjacent Paradise Valley area who individually
contract with the Employer for such services. Even if
the Employer is deemed to be engaged in commerce
within the meaning of the Act, there remains the
question of whether the Board should assert jurisdic-
tion over its employees who provide firefighting
services to a municipality.
The Employer has a contract with the Scottsdale
City Council which requires it to provide reasonable
1 The Employer also denies the appropriateness of the unit 'sought by
Petitioner . We find it unnecessary to resolve the issues raised by that claim
in that we are declining to assert jurisdiction over the unit sought by
Petitioner, and the showing of interest in support thereof is insufficient to
support a larger unit such as is claimed to be appropriate by the Employer.
Also, as we are dismissing the petition herein on jurisdictional grounds, and
need not make any unit determination „we find it unnecessary to pass on the
Employer's motion requesting that it be permitted to withdraw from a
and customary fire protection to the city. The
contract calls for four fire stations to be operated
within the city limits. Of the four in operation, three
are owned and maintained by the city. The contract
also requires that certain equipment be maintained
within the city limits at all times and much of the
major equipment in the fire stations is owned and
maintained by the city. The Employer must obtain
permission from the city manager before removing
certain equipment from the city limits except when
responding to a call for assistance from another fire
department or in response to an emergency of
disaster proportions.
The Employer employs a crew of about 30 full-time
firefighters in the Scottsdale area. Its contract with
the city obligates it to recruit all new employees from
the ranks of city residents. It is also required to
maintain a reserve force of part-time firefighters who
respond when they are needed as well as two
companies of "wranglers," who are recruited from
the ranks of city employees to function in all respects
as firefighters within the city limits and whose entire
cost of training and wages is borne by the city. The
contract dictates the number of personnel to be
utilized and their required duty hours and the
number of men and equipment which must respond
to certain calls.
The Employer hires, disciplines, discharges, and
supervises the employees. It provides its own pension
plan and health and life insurance, and contributes
toward workmen's compensation for the employees.
Its employees do not participate in any of the fringe
benefits available to city employees except that they
are eligible for membership in the city credit union.
The city of Scottsdale is obligated to pay the
Employer certain fixed sums for its services, subject
to changes in service levels and manpower increases;
such changes may be made by mutual agreement or
arbitration. The fee paid the Employer by the city of
Scottsdale permits the employees performing the
services to enjoy a somewhat higher wage scale than
employees employed elsewhere, essentially because
the city council recognizes the higher cost of living in
the area.2
Additional obligations imposed upon the Employer
by its contract with the city of Scottsdale are that it
submit annual and monthly written reports to the
city council; enforce all the city's fire codes and
related ordinances, conducting all inspections associ-
stipulation entered into at the hearing to exclude "wranglers" from the
appropriate bargaining omit and leave to submit newly discovered evidence.
2 Recognizing that a substantial amount of operating funds is derived
from subscription contracts with residents outside of Scottsdale in the
Paradise Valley area, the city has agreed to an increase in contract costs if
the Employer is unable to maintain its contracts with Paradise Valley
residents at a certain specified level,
216 NLRB No. 95
RURAL FIRE PROTECTION CO. 585
ated therewith; and aid in arson investigations. In
addition, certain of the Employer's officials act as
deputy and assistant state fire marshals, and the
Employer has the authority to issue burning permits
pursuant to the county health code.
Inasmuch as the city of Scottsdale is not an
employer under the Act, the jurisdictional issue
which has to be resolved is whether to assert
jurisdiction over an employer who provides firefight-
ing services to a municipality in the circumstances of
this case . For the reasons given below, we believe
that the assertion of jurisdiction is not warranted.
Upon a remand from the Court of Appeals for the
District of Columbia Circuit in Herbert Harvey, Inc.
v. N. L. R. B. 3 requesting clarification of an unex-
plained alleged inconsistency between the Board's
original adjudication of Harvey and its disposition of
other cases, the Board responded with a detailed
analysis of its position in the matter of asserting
jurisdiction over the nonexempt provider of services
to exempt institutions.4 Because our dissenting
colleague also relies on this response to the court, but
views it as supporting his position in the case before
us, we think it would be helpful at the outset to quote
the relevant language .of the Board. Faced with the
issue of whether to assert jurisdiction over a
contractor who provided maintenance services on
the premises occupied by the World Bank, an exempt
institution, the Board, after determining that the
contract exercised sufficient effective control over
the working conditions of its employees to bargain
about them with a union, said (at 239-240):
In response to the Court's observation that the
result in the instant case appears to be inconsis-
tent with the Board's prior cases dealing with
exempt institutions, it is respectfully submitted
that our holding here is in accord with the criteria
that the Board has generally utilized in determ}n-
ing whether jurisdiction should be asserted over
contractors performing services for suc:4 institu-
tions. The Board has, with the possible exception
of Specialized Maintenance Services, Inc., .. .
[unpublished] uniformly held that the assertion of
jurisdiction over a contractor providing services
for an institution exempted from the process of
the Act is dependent upon the relationship of the
services performed to the exempted functions of
the institution . Where the services are intimately
connected with the exempted operations of the
institution, the Board has found that the contrac-
tor shares the exemption; on the other hand,
where the services are not essential to such
operations the Board has found that the contrac-
tor is not exempt and asserts jurisdiction over the
contractor's activities. By so doing the Board is
enabled to strike a balance between the congres-
sional policy of excluding the noncommercial
charitable and educational activities of institu-
tions and the policy of the statute to encourage
collective bargaining-one of the fundamental
purposes of the Act.
Then, addressing itself directly to the case at hand,
the Board (at 241) continued:
The Respondent's employees are engaged exclu-
sively in the operation and maintenance of the
buildings in which the World Bank is located.
These housekeeping duties performed by the
Respondent's employees have no connection with
the functions of the World Bank as an investment
institution. They are, in fact, less intimately
connected with the operations of the Bank than
the maintenance activities of the contractor in the
Bay Ran case . . . [161 NLRB 820] in which the
Board asserted jurisdiction over the maintenance
contractor performing services for an exempted
hospital.5 We are therefore constrained to adhere
to our initial decision that it would effectuate the
purposes of the Act to assert jurisdiction over the
maintenance activities of the Respondent in the
buildings occupied by the World Bank.
The dissent would read Harvey and other Board
decisions as standing for the proposition that "Where
it has been found that the employer possessed
sufficient control over the employment conditions of
its employees to enable it to bargain collectively with
a union, the Board has asserted jurisdiction and
where such control was lacking, the Board declined
to assert jurisdiction." However, our reading of
Harvey and other recent decisions leads us to believe
that this is not a complete and wholly accurate
statement of existing Board law.
The degree of control exercised by the exempt
institution over the operations of the nonexempt
employer who provides services may, of course, be a
determinative factor in certain situations. Thus,
where the exempt employer exercises substantial
control over the services and labor relations of the
nonexempt contractor, so that the latter is left
without sufficient autonomy over working conditions
to enable it to bargain efficaciously with the union,
that in itself is reason enough for declining jurisdic-
tion,6 for the contractor is not required "to do the
impossible" or to engage in a mere "exercise in
3 385 F.2d 684 (1967). performed by the Employer has no direct relationship to patient care."
+ Herbert Harvey, Inc., 171 NLRB 238 (1%7). 6 See Servomation Mathias Pa., Inc., 200 NLRB 1063 (1972), and Current
The Board there pointed out that "Significantly , the cleaning work Construction Corporation, 209 NLRB 718 (1974).
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
futility," since the purpose of collective bargaining is
to produce an agreement covering working condi-
tions.7 In such a situation, of course, while the Board
may do so,8 there is no need to invoke Harvey's
"intimate connection" test, there being sufficient
other reason for declining jurisdiction.
Where the control exercised over the nonexempt
employer is not substantial, so that the employer is
capable of bargaining with the union over wages,
hours, and other conditions of employment, the
focus of necessity is on the nature of the relationship
between the purposes of the exempt institution and
the services provided by the nonexempt employer
and not, as the dissent claims , on the mere absence of
control by the one over the other. This, plainly, is the
lesson of Harvey. For, after accepting the court's
view that the nonexempt respondent and the exempt
World Bank were joint employers over the employees
involved, but finding that the respondent exercised
effective control over the working conditions of its
employees, the Board proceeded to inquire into the
existence of an "intimate connection." And only
upon ascertaining that the housekeeping functions
performed by respondent's employees had no con-
nection with the World Bank as an investment
institution, was jurisdiction asserted.
This critical reliance upon the relationship between
the services performed and the purposes of the
exempt institution was expressly noted and approved
by the court of appeals which, after stating that the
Board was faced with the factual issue of deciding
whether Harvey had sufficient command of employ-
ment conditions to enable efficacious bargaining,
observed, "Beyond that, the Board's task in this case
was reconciliation of the benefits conferred by the
Act with the immunities enjoyed by the World
Bank.... "It then proceeded to quote precisely the
same language from the Board's decision which is set
forth above .9
A similar approach focusing on the relationship of
the services performed to the exempted functions of
the institution to whom they were provided is found
in Inter-County Blood Banks, Inc.10 There, the
employer provided blood bank services to exempt
hospitals and the Board declined jurisdiction on the
ground that "the Employer's operations are intimate-
ly related to the operations of the hospitals to which
it supplies blood for treatment of patients, almost all
r Herbert Harvey, Inc v. N.4RB., supra, fn. 3.
s See Current Construction Corporation, supra, fn. 6.
Recognition of this as Board policy is found in Judge McGowan's
concurrence in the Harvey remand (at p. 686), wherein he stated: "It
appears that there are certain kinds of employers which the Board, for
policy reasons and unaided by any explicit provision in the Act, treats as
exempt.... This treatment in at least some cases has been extended to
include other employers performing services for the exempted institution,
not because the servicing employer is not a true employer but because what
of which . . . are nonprofit hospitals exempt from
the Board's jurisdiction." No reference is made to the
extent of the hospitals' control over the employer's
employees, if any there was.
More recently, in The Wackenhut Corp., l i the
Board declined jurisdiction over an employer who
provided guard services to the City College of New
York for the reason that such services were intimate-
ly related to City College's administration and
educational purposes. The Board expressly stated
that it was unnecessary to decide whether the degree
of control retained by City College concerning such
services would constitute a separate basis for
asserting jurisdiction.
In Current Construction Corporation12 a majority of
the Board chose to rely on both degree of control and
intimate connection as reasons for declining jurisdic-
tion over an employer who pruned, cut, and removed
trees in New York City under contract with the parks
department of the city.
Our examination of precedent 13 leads us to declare
again, in the unmistakable language of Harvey (at
240), that "Where the services are intimately con-
nected with the exempted operations of the institu-
tion, the Board has found that the contractor shares
the exemption; on the other hand, where the services
are not essential to such operations the Board has
found that the contractor is not exempt and asserts
jurisdiction over the contractor's ' activities." In this
case, it plainly appears that the Employer's firefight-
ing services furnished to the city of Scottsdale,
utilizing fire stations and major firefighting equip-
ment owned and maintained by the city, are
intimately related to Scottsdale's municipal purposes.
Indeed, more than being a service which is merely
intimately related to Scottsdale's municipal functions
within the meaning of the cases, the firefighting
service herein is itself an essential municipal function
which Scottsdale, instead of performing directly with
its own employees, delegated to the Employer to
perform on its behalf, making available its facilities
and equipment for that purpose. It follows that, with
regard to the employees requested by Petitioner who
are performing these services for Scottsdale, the
Employer shares the city of Scottsdale's exemption
he is doing is of such a nature that the institution would be exempted if it
were doing the same thing through its own employees."
10 165 NLRB 252 (1967).
11 203 NLRB 86 (1973).
12 Supra. fn. 6.
13 Acting Chairman Fanning filed a dissent in the Current Construction
Corporation case and he expresses disagreement with the disposition of The
Wackenhut Corp. But Mr . Fanning's dissatisfaction with those cases cannot
serve to remove them from the stream of precedent which governs this case.
RURAL FIRE PROTECTION CO. 587
from the Board's jurisdiction.14 Accordingly, we shall
dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
ACTING CHAIRMAN FANNING, dissenting:
Since I think it clear that, in accord with pertinent
Board precedent, the Board can and should assert
jurisdiction over this Employer, and since I think the
majority has used an incorrect standard in dismissing
the instant petition, I dissent from the majority's
failure to assert jurisdiction here.15
I note that in assessing whether it will assert
jurisdiction over an employer, such as the instant
employer, who performs services for an entity which
is exempt from the Board 's jurisdiction under Section
2(2) of the Act, it has been the Board's consistent
policy to focus on the amount of control the
employer has retained over the employment condi-
tions of its employees and the degree of review or
approval rights the exempt entity might possess over
the employer's operations .16 Where it has been found
that the employer possessed sufficient control over
the employment conditions of its employees to
i4 Therefore, whether the city of Scottsdale's control over such services
was such as would constitute a separate basis for declining jurisdiction
herein is a matter we need not consider.
15 The question whether to assert jurisdiction over an employer like the
instant one who performs firefighting services for a municipality or a
governmental body is not a new one. Over 25 years ago, on the particular
facts of each case, the Board asserted jurisdiction over two employers who
performed firefighting services for the United States Government at its Oak
Ridge , Tennessee , townsite and military reservation. Roane-Anderson
Company, 71 NLRB 266 (1946), and Monsanto Chemical Company, 76
NLRB 767 (1948). Years later, the Board again asserted jurisdiction over
employers who performed fire protection services for the United States
Department of Agriculture 's forestry service and the State of California's
division of forestry. Sts-Q Flying Service, Inc., 197 NLRB 195 (1972).
is Herbert Harvey, Inc., 171 NLRB 238, 239 (1967), enfd 424 F 2d 770
(C.A.D.C., 1969).
it See , e.g., We Transport, Inc. and Town Bus Corp, 215 NLRB No 91
(1974). Ja-Ce Company, Inc., 205 NLRB 578 (1973); Barry Industries,
Incorporated, 181 NLRB 1003 (1970); Yosemite Park and Curry Co., 172
NLRB 1740(1968).
is See , e.g., Slater Corporation, 197 NLRB 1282 (1972); Crotty Brothers,
N. Y, Inc., 146 NLRB 755 (1964).
19 Servomation Mathias Pa., Inc, 200 NLRB 1063 (emphasis supplied).
See also Ja-Ce Company, Inc, supra at In. 17
20 An exception to the consistent Board precedent that the degree of
control is a key factor in the consideration of whether to assert jurisdiction
is a panel decision in The Wackenhut Corp., 203 NLRB 86. There , a petition
for a unit of employees performing guard and security services at the City
College of New York was dismissed solely since it was found the employer's
services were related to the college 's exempted operations and therefore that
the employer shared the college 's exemption . No consideration was given to
the degree of control the college retained over the employer 's operations. I
did not participate in the Wackenhut decision and I do not consider it good
law. Rather , I think it a deviation from the Board 's consistent policy of
looking to the degree of control the exempt institution possesses over the
employer's operations and therefore I do not follow it.
2i i disagree with the majority 's assertion that the above exposition is not
a "complete and wholly accurate statement of existing Board law."
Although the majority claims that certain language in the Board's
enable it to bargain collectively with a union, the
Board has asserted jurisdiction 17 and where such
control was lacking, the Board declined to assert
jurisdiction.18
However, despite this Board precedent, the majori-
ty has based its decision to dismiss solely on the
"intimate connection" it has found between the
Employer's services and the city of Scottsdale's
exempted operations. While it is true that, in the past,
in determining whether it would assert jurisdiction
over an employer like the instant one, the Board has
considered the relationship between the employer's
work and the exempt institution's operations, it has
done so in a context totally different from that which
the majority has here constructed. For, when the
Board spoke of the relationship, it noted that it
depended " in large part upon the degree of control
exercised by [the exempt institution] over [the
employer ]." 19 Here, evidence of the degree of
control possessed by the city of Scottsdale over the
Employer's labor relations has nowhere played a part
in the majority's decision to dismiss. Such a decision
is therefore clearly at odds with the weight of Board
precedent20 and I dissent from the majority's failure
to follow that precedent.21
Having noted that a key factor in determining if
jurisdiction should be asserted here is whether,
Supplemental Decision in Herbert Harvey supports its total reliance here on
the "intimate connection" it finds between the Employer's operations and
those of the city, I note that in each of the three published cases cited in
Herbert Harvey, where jurisdiction was declined based on an "intimate
connection" found to exist between the nonexempt employer 's services and
the exempt institution 's functions , that the degree of control asserted by the
exempt institution over the nonexempt employer's operations was an
important factor in establishing this "intimate connection ." The majority
here does not look to this factor of control at all in dismissing this petition,
in derogation of the teaching of Herbert Harvey, the case it professes to
follow. Any doubt that it is not existing Board law to look, as the majority
does, solely to the service the employer provides to the exempt institution is
resolved by a comparison of the Board's decisions in Crotty Brothers, N Y,
Inc, supra, The Prophet Co., 150 NLRB 1559 (1965); and Ja-Ce Company,
Inc., supra at fn. 17. In Crotty Brothers and The Prophet, the Board declined
jurisdiction over employers who provided food services to educational
institutions In Ja-Ce, the Board asserted jurisdiction over an employer who
operated cafeteria programs for 19 school districts within the State of New
Jersey. If the Board had looked solely to the services the employer in each
case performed, as the majority does here , it would be reasonable to assume
that the result in Ja -Ce would have been the same as that in the two earlier
cases since the service in all three cases, i.e., the supplying of food services to
educational entities , was the same . Of course, the result in the three cases
was not the same and, in Ja-Ce, the Board asserted jurisdiction since it
found the degree of control exercised by the various school districts over the
labor relations policies of the employer was insufficient to warrant declining
jurisdiction.
I note with particular interest also that in Sis-Q Flying Service, Inc, supra
at In. 15, where the Board asserted jurisdiction over employers performing
the same type of work as the Employer here , the Board specifically noted
that there was a close connection between the employers' activities of
supplying fire protection services and the purposes and operations of the
exempt Government agencies Still, the Board asserted jurisdiction because
the employers maintained a considerable area of effective control over their
own labor relations.
Clearly then a reliance on the degree of control asserted by the exempt
institution over the labor relations of the nonexempt employer is not at
variance with Board law but rather is in conformity with it.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notwithstanding the possibility that certain of the
Employer's conditions of employment might be in
some respects subject to the review and approval of
the city of Scottsdale, the Employer retains the
ability to exercise such control over the working
conditions of its employees that it has the capability
of bargaining effectively with a labor organization
over conditions of employment, I note the following
in consideration of that issue:
The contract under which the Employer supplies its
services22 provides that the Employer's operations
are entirely within the Employer's own direction and
discretion subject only to the understandable re-
quirement that the operations not conflict with the
terms and conditions of the contract. Thus, the
Employer establishes the requirements for hiring,
and does hire, its firefighting personnel and it
maintains supervision, including discipline and dis-
charge authority, over its employees. Any firefighter
may be transferred by the Employer to the Scottsdale
operation to fill a vacancy or new position or the
position may be filled with Scottsdale residents, who
meet the Employer's personnel requirements, as the
Employer chooses.
The Employer furnishes certain equipment on its
own to perform its contractual obligation. All
firefighting equipment, whether owned by the Em-
ployer or the city, is under the operational control of
the Employer and the Employer has the discretion to
replace, alter, modify, or eliminate from service any
equipment it owns so long as the city's insurance
credits are unaffected by this action.
The Employer provides its own pension plan and
health and life insurance to its employees, and
contributes toward workmen's compensation for its
employees. Its employees do not participate in any of
the fringe benefits available to city employees except
that they are eligible for membership in the city
credit union.
22 1 have considered the new contract the Employer and the city of
Scottsdale entered into from August 1, 1974, to July 31, 1979
23 Roane-Anderson Company; Monsanto Chemical Company, Sis-Q Flying
Service (all cited at fn 15, supra), Ja-Ce Company, Barry Industries, Yosemite
Park and Curry Co (all cited at fn 17, supra)
24 The Employer during the last fiscal year purchased goods directly
from outside the State of Arizona totaling approximately $ 16,000 During
the same time period, it purchased goods in the amount of $130,000from
suppliers located within Arizona, who obtained the goods from outside the
State The Employer does more than $500,000 worth of business with cities
From the foregoing, including the Employer's
power to hire, fire, supervise, and discipline its
employees, its ability to transfer them, and its ability
to grant them their own fringe benefits, it is clear that
the Employer possesses the capability of exercising
effective control over the working conditions of its
employees and therefore, under controlling Board
precedent,23 I would assert jurisdiction24 over this
Employer.25
In declining to assert jurisdiction, the majority, in
effect, is holding that, if it is shown that an employer
performs a service for a municipality which is usually
associated with a governmental function, then,
without more being shown and regardless of the
control the employer has over his own operations,
that employer is exempt from the Act and its
employees are not covered by it. I believe, however,
that a municipality's decision to contract out some of
its functions to the private sector should not deprive
the private sector employees of benefits under the
Act, nor deprive the employer and the municipality
of the protection provided by the Act. This country is
seeing a striking increase in public sector recognition
strikes with a sad lack of effective machinery to settle
those disputes without great disruption to the public
services or great injury to employees' rights of
association. For this Board to refuse to assert its
jurisdiction over labor disputes involving such
services which fall within our jurisdiction simply
makes a, bad situation worse. Moreover, it precludes
the possibility that experience under the Act relative
to disputes of this type may suggest a useful model to
legislatures which are, or should be, working to
establish dispute settlement procedures for public
employees. Inasmuch as we clearly have jurisdiction
here and as the Employer retains effective control
over matters affecting wages, hours of employment,
and working conditions so that collective bargaining
can function, I would assert jurisdiction.
and private corporations which in the last year purchased in excess of
$500,000 of supplies in interstate commerce , and the Employer clearly meets
the Board's jurisdictional standards
25 1 note with interest that while the Employer argued that the city of
Scottsdale has ultimate control over its wage rates and similar items with
respect to the services it furnishes Scottsdale , it also argued that, if the
Board asserted jurisdiction over it , the appropriate unit was statewide (thus
apparently including employees under contract to private sector corpora-
tions) because its labor relations were centralized and determined on a
companywide basis