In Emmaus v. Pennsylvania Labor Relations Board, the Commonwealth Court, by a 4-3 vote, recently affirmed a Pennsylvania Labor Relations Board (PLRB) decision, finding that an employer-employee relationship existed between the Borough of Emmaus and members of its local volunteer fire department. As a result, the firefighters, long believed to be volunteers, now have the right to unionize and engage in collective bargaining with the Borough over wages and other terms and conditions of their newly confirmed employment by the Borough.
Despite the designation as a “volunteer” fire department, the Commonwealth Court found that the Borough Council’s actions, in paying hourly wages to the firefighters and structuring the Fire Department in such a manner as to directly control the Department’s actions, created an employment relationship.
Pennsylvania courts apply a three-part test for determining whether an employer-employee relationship exists. Such a relationship exists when the employer has:
1) The right to select/hire the employees;
2) The power to discharge; and
3) The right to direct to work to be done.
While payment of wages or salary is often coincident with the status of an employer-employee relationship, it is not solely determinative of that status.
In applying the three-part test, the Commonwealth Court found that an employer-employee relationship existed between the Borough and the firefighters, based on the following findings made by the Board:
• The Borough Ordinance that established the Fire Department provided Borough Council with the right to establish rules, regulations and procedures for the Department;
• The Borough owns all of the Fire Department’s equipment and buildings;
• The Borough pays firefighters’ hourly wages, which are set by Borough Council, and withholds taxes from their paychecks;
• The Borough Council is responsible for hiring all firefighters;
• The Fire Department is run by two Borough employees, the Fire Chief and Borough Secretary. The Borough Secretary runs the day-to-day operations of the Department, including scheduling employees, and the Fire Chief directs firefighters on the fire scene, issues tasks to be completed by the firefighters, and possesses the power to discipline.
Since the Borough retained both the right to hire and discipline employees, and controlled all work performed by the firefighters, through the direction of a Borough-employed Fire Chief, the PLRB determined that the relationship between the Borough and the firefighter is that of an employer and employee, and as such, the firefighters could unionize and bargaining over wages and benefits.
The dissent’s main point of contention was that the Borough is statutorily mandated to create a fire force and provide certain benefits to volunteer firefighters, such as workers’ compensation benefits, and such statutory requirements should not be used to create an employer-employee relationship. The majority agreed, acknowledging that those statutorily-mandated duties are not, in and of themselves, enough to create an employer-employee relationship with volunteer firefighters. However, the majority dismissed the dissent’s reasoning by pointing out that the Borough had a level of control over the Fire Department, which went far beyond merely its statutory obligations to volunteer firefighters. As a result, the additional levels of control instituted by the Borough over the Fire Department created an employer-employee relationship.
The Court’s affirmance of the PLRB’s decision, will undoubtedly have significant financial implications for not only the Borough of Emmaus, but countless other Pennsylvania municipalities that have similar control over and provide wages to firefighters classified as volunteers. As a result, the Borough has indicated that it will appeal the decision to the Pennsylvania Supreme Court.
Until the Pennsylvania Supreme Court has an opportunity to either decline to hear the case or review and issue a decision, all municipalities should be reviewing the level of control and direction that they have over their local volunteer fire department. If a municipality retains the right to hire/discharge firefighters and has the ability to direct the work of volunteer firefighters, an employer-employee relationship may be found, providing firefighters with the ability to unionize and bargaining over wages and benefits.