Pro-Tec Fire Services, LTD.

National Labor Relations Board - Board Decisions

Oct 22, 2014

31-RC-133248 (N.L.R.B. Oct. 22, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PRO-TEC FIRE SERVICES, LTD.
Employer
and Case 31-RC-133248
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 1-61
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1
Dated, Washington, D.C., October 22, 2014
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER

1 The Employer contends that the Fire Captains’ job description and the testimony of Fire Chief John
Scanlon and Fire Captain Marcus Domingo establish that the Fire Captains have the authority to
responsibly direct and assign firefighters, including directing firefighters’ response to emergencies.
Member Johnson notes that independent judgment and discretion would reasonably be expected from Fire
Captains in emergency situations. Nonetheless, he recognizes that assumptions based on the nature of
emergency, fire, and rescue work cannot replace the specific evidence of independent judgment and
discretion required under Oakwood Healthcare, Inc., 348 NLRB 686 (2006). See, e.g., Barstow
Community Hospital, 352 NLRB 1052, 1053 (2008) (evidence that was "devoid of any examples or
details of circumstances" lacked sufficient specificity to show the employees exercised independent
judgment), affirmed by 356 NLRB No. 15 (2010), enfd. 474 Fed.Appx. 497 (9th Cir. 2012) (unpublished
opinion). Here, Member Johnson agrees that the Employer failed to meet its burden of establishing
independent judgment and discretion where it provided no evidence that the Fire Captains, particularly in
emergency situations, directed or assigned firefighters to areas of responsibility different from their
predetermined responsibilities as set by the daily shift schedule, or otherwise exercised independent
judgment or discretion in directing the firefighters’ work.
Member Johnson also finds that the Fire Captains and firefighters share a community of interest under
the Board’s traditional community of interest analysis. He did not participate in Macy's, 361 NLRB No. 4
(2014), upon which the Regional Director relies, and finds no need here to express his opinion whether
that case or the Specialty Healthcare decision upon which the Macy’s majority relied were correctly
decided. Finally, contrary to the Employer’s assertions, Member Johnson notes that the California Civil
Jury Instructions and Evidence Code are not relevant here.