City of Belvidere v. ISLRB

No. 2--95--1540
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE CITY OF BELVIDERE, ) Appeal from the Order of the
) State Labor Relations Board
Petitioner-Appellant, )
) No. 94--S-CA--39
v. )
)
ILLINOIS STATE LABOR RELATIONS )
BOARD; MANNY HOFFMAN, ROBERT M. )
HEALEY, and ROBERT J. HILLIARD, )
as Members of the Illinois )
Labor Relations Board; and THE )
BELVIDERE PROFESSIONAL FIRE- )
FIGHTERS ASSOCIATION, LOCAL )
1569, IAFF, )
)
Respondents-Appellees. )
_________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

The City of Belvidere, Illinois (City), appeals from a
decision and order of the Illinois State Labor Relations Board
(Board) in favor of the Belvidere Professional Firefighters
Association, Local 1569, IAFF (Union). The Board decided that the
City's refusal to bargain with the Union over the City's decision
to contract with a private ambulance company to provide paramedic
services in the City was an unfair labor practice because the
matter was a mandatory subject of collective bargaining. The Board
ordered the City to rescind the contract and engage in collective
bargaining with the Union. On appeal, the City contends that the
Board erred when it determined that the City's decision was a
mandatory subject of collective bargaining.
We allowed, in part, the City's motion to stay the Board's
order pending the outcome of this appeal. We stayed the portion of
the order requiring the City to rescind the contract with the
private ambulance company.
Background
Since January 6, 1992, the Union has been the exclusive
bargaining agent for the City's 15 fire fighters. Prior to
January 6, 1992, the Belvidere City Employees' Association (BCEA)
represented the fire fighters.
Since 1974, one function of the Belvidere fire department
(fire department) has been to provide emergency medical services
(EMS) to residents of Belvidere. The Emergency Medical Services
(EMS) Systems Act (EMS Act) (210 ILCS 50/1 et seq. (West 1994))
governs the provision of EMS in Illinois. Under the EMS Act, the
Illinois Department of Public Health (Department) has the authority
and responsibility to certify and license individuals to provide
EMS. 210 ILCS 50/10 (West 1994).
The EMS Act sets out three levels of licensing for individuals
performing EMS. The three licensing levels have different
education, training, and testing requirements.
The lowest level of certification is Emergency Medical
Technician--Ambulance (EMT--A). 210 ILCS 50/4.12 (West 1994).
Effective July 19, 1995, the EMT--A designation was changed to EMT-
-B (Basic). 210 ILCS Ann. 50/3.50 (Smith-Hurd Supp. 1996). We
will continue to use EMT--A because that designation was in effect
during the time material to this appeal. An EMT--A may perform
basic life support (BLS) services, such as airway management,
cardiopulmonary resuscitation, control of shock and bleeding, and
splinting of fractures.
An intermediate level of certification is Emergency Medical
Technician--Intermediate (EMT--I). 210 ILCS 50/4.15 (West 1994).
An EMT--I may perform BLS services and certain advanced life
support (ALS) services.
The highest level of certification is Emergency Medical
Technician--Paramedic (EMT--P or paramedic). 210 ILCS 50/4.13
(West 1994). An EMT--P may perform ALS services which include all
BLS services plus cardiac monitoring, cardiac defibrillation,
electrocardiography, administration of antiarrhythmic agents,
intravenous therapy, administration of medications, drugs and
solutions, use of adjunctive medical devices, trauma care, and
other authorized techniques and procedures.
The Department also has the responsibility for licensing and
setting standards for the operation of ambulances. The Department
licenses ambulances at three levels of service. These levels are:
BLS; intermediate life support (ILS); and ALS.
Every ambulance must be staffed with at least two EMTs. An
ILS ambulance must be staffed at all times with at least one EMT--
I. An ALS ambulance must be staffed at all times with at least one
paramedic.
The City purchased its first ambulance and began providing EMS
through its fire department in 1974. By 1976, the City required
its fire fighters, as a condition of employment, to become
certified medical technicians at the EMT--A level. Eventually,
through attrition and training, all of the City's fire fighters
became EMT--As. In 1980, the City acquired and began operating a
second ambulance.
In the late 1980s, several of the City's fire fighters began
training as EMT--Is. By January 1, 1990, six fire fighters had
received EMT--I certification, and the City began operating one of
its ambulances at the ILS level.
Throughout this time period, when the City received a 911
call, the fire department ambulances had dispatch priority. This
meant that in response to a 911 call the dispatcher would send a
fire department ambulance staffed with two fire fighter/EMTs to the
scene. At the discretion of the shift commander on duty, an engine
manned by two or three additional fire fighter/EMTs might also be
dispatched to the call. Only if the caller specifically requested
a private ambulance was a private ambulance dispatched. The City
occasionally requested backup assistance from private ambulance
companies when, for example, calls came in while the City's
ambulances were already in service, or when additional emergency
medical personnel were needed. On those occasions, the City's fire
fighter/EMTs worked alongside the paramedics from the ambulance
companies to provide EMS.
In 1989 or early in 1990, the City required three probationary
fire fighters to sign individual agreements that, as a condition of
their employment, they would become licensed and certified as
either an EMT--I or EMT--P. The BCEA subsequently filed a
grievance protesting the imposition of this requirement. The
matter was resolved when the City removed the individual agreements
from the fire fighters' personnel files. However, the City
asserted that it had the right to require new fire fighters to
undergo EMT--P training and assume EMT--P assignments.
In 1990, during negotiations for a new collective bargaining
agreement, the City and the BCEA discussed proposals for a
paramedic program within the fire department. The parties were
unable to reach agreement as to such a program, and a program was
not implemented.
In 1991, two fire fighters downgraded their certification from
EMT--I to EMT--A. This left the fire department with only four
EMT--Is. Four EMT--Is was an insufficient number to man the fire
department's ILS ambulance around the clock without excessive
overtime. Consequently, the City subsequently downgraded the
status of its ILS ambulance to the BLS level pending installation
of a paramedic program.
On May 13, 1991, the City council's public safety committee
created an ad hoc committee to discuss the feasibility of turning
over the City's ambulance service to an outside party. The ad hoc
committee consisted of the mayor, the fire chief, two city council
members, a BCEA representative, and two citizens at large.
The ad hoc committee met periodically from June 26, 1991,
through October 8, 1991. The committee gathered information
regarding EMS from 32 communities that were comparable in size to
Belvidere. The committee also sent a questionnaire to 10 private
ambulance companies requesting information regarding the level and
scope of services the companies offered and background information.
During this period, the fire department submitted a document
to the committee. The document urged the City to provide paramedic
services through the fire department and analyzed the projected
costs involved.
On October 9, 1991, the ad hoc committee submitted its
recommendations to the public safety committee. The
recommendations were:
"(1.) The city's level of EMS needs to be upgraded to
paramedic level.
(2.) User fees need to more closely reflect the actual cost
of offering this service. It is recommended that the
city increase the ambulance charge in line with this
goal.
(3.) That any firefighter hired after August 1989, is
subject to a requirement of attaining paramedic
certification, should the city institute the program.
At a minimum, this should be set out by Resolution.
(4.) One of the options may be privatization of EMS. Four
private companies have expressed interest in performing
the service. Cost data for this option can only be
supplied if the city assembles bid specifications for
the service that is wanted. The Ad Hoc Committee could
assist in this task.
(5.) A proposal has been received from the Belvidere
firefighters to offer this service in-house. The
terms, conditions, and cost will need to be set out in
a future contract, and should be recommended to
negotiators.
(6.) That the city can require paramedic certification as a
pre-employment requirement. This should be set out in
an ordinance to take effect for all firefighters hired
after December 29, 1991.
(7.) That the only way to compare the merits of findings (4)
and (5) is to prepare bidding specifications and
formally submit them to the four private EMS companies;
Lifeline, Public Safety Services, Metro, and A-Tec.
The results can then be compared with the costs of
findings(s)."
On October 14, 1991, the public safety committee considered
the ad hoc committee's recommendations. The public safety
committee decided to prepare bid specifications for private
ambulance service with paramedics.
In January 1992, the City prepared and sent its specifications
to four private ambulance companies. All four ambulance companies
responded; however, three of the companies declined to submit
proposals. Only one company, Lifeline Ambulance (Lifeline),
indicated that the City's specifications were generally acceptable
with certain items negotiable.
The Union also submitted a response to the bid specifications.
The Union's response consisted of the analysis it had previously
submitted to the ad hoc committee and additional material aimed at
persuading the City to use fire fighters as paramedics.
On January 21, 1992, the public safety committee met as a
committee of the whole City council. The council reviewed the
response to the bid specifications. In a 7 to 3 vote, the council
voted against a motion "to honor our prior resolution agreement
with the Firefighters by addressing the paramedic issue in
negotiations prior to implementing anything within the City."
In 1992, the City and the Union negotiated a new collective
bargaining agreement. At that time, the parties discussed
proposals for a paramedic program within the fire department. The
parties were unable to reach agreement regarding such a program,
and none was implemented.
On January 14, 1993, the fire chief sent a letter to the
finance and personnel committee of the City council. The letter
stated that the Union had decided to take it upon itself to begin
paramedic training on January 18, 1993. In the letter, the chief
opined that it would be preferable if the City and the fire
fighters were in agreement on such training and suggested that the
contract be reopened to discuss the issue.
In the spring of 1993, at the City council's request, the
chief prepared another analysis of the costs to upgrade the fire
department's EMS program to paramedic level. The chief estimated
that the initial costs would range from $78,000 to $247,000, and
ongoing costs would range from $20,000 to $127,000 annually.
Shortly after the chief submitted his analysis, the City
resolicited bids from private ambulance companies to upgrade the
City's ambulance service. The City advised the Union of its
resolicitation of bids by sending the Union a copy of the bid
solicitation.
A series of letters between the Union and the City followed.
The Union took the position that the bid solicitation was an
invitation to modify the contract between the Union and the City.
The Union requested collective bargaining over the issue. The City
declined to bargain. In a letter dated August 26, 1993, the City
stated that it did "not have a duty to bargain over the decision to
contract paramedic services within the City limits under the
circumstances presented."
On September 7, 1993, the City authorized the preparation of
an agreement with Lifeline to provide paramedic ambulance services.
The City subsequently approved the agreement with Lifeline.
In a letter dated September 8, 1993, the Union demanded
collective bargaining over the "effects of the City contracting out
bargaining unit work." In a letter dated September 9, 1993, the
City agreed to enter into bargaining over the effects of the City's
decision. However, the City's refusal to bargain over the decision
itself has continued since August 26, 1993.
On September 13, 1993, the Union filed an unfair labor
practice charge with the Board. The basis of the Union's charge
was the City's refusal to bargain over its decision to contract out
paramedic services. The Board subsequently issued a complaint for
a hearing.
On May 2, 1994, an administrative law judge (ALJ) conducted a
hearing on the Union's charge. On March 16, 1995, the ALJ issued
a recommended decision and order, ruling that the City's decision
was not a mandatory subject of collective bargaining. On April 13,
1995, the Union filed exceptions to the ALJ's recommendations.
On June 26, 1995, the Board heard oral arguments on the
matter. On November 2, 1995, the Board issued a decision and
order. The Board adopted the ALJ's findings of fact but reversed
the ALJ's conclusion by deciding that the City's decision was a
mandatory subject of collective bargaining. The City's timely
appeal followed.
Analysis
Judicial review of a decision by the Board extends to all
questions of law and fact presented by the record, and the Board's
findings of fact are deemed prima facie true and correct. City of
Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499,
507 (1990). The Board's determinations of questions of law are not
entitled to the same deference as its findings of fact. City of
Freeport, 135 Ill. 2d at 507. Nonetheless, a reviewing court
should give substantial deference to the Board's interpretation of
a statute which it administers and enforces, unless the Board's
interpretation is clearly wrong. City of Freeport, 135 Ill. 2d at
516.
The question before us in this appeal is whether the Board
erred when it decided that the City's refusal to engage in
collective bargaining with the Union over the City's decision to
contract out paramedic services was an unfair labor practice which
violated the Illinois Public Labor Relations Act (Act) (5 ILCS
315/1 et seq. (West 1994)). Section 10(a)(4) of the Act makes it
an unfair labor practice for a public employer to refuse to bargain
collectively in good faith with a labor organization which is the
exclusive representative of public employees in an appropriate
unit. 5 ILCS 315/10(a)(4) (West 1994).
Section 7 of the Act imposes a duty on a public employer to
engage in good faith collective bargaining with its employees'
exclusive representative "with respect to wages, hours, and other
conditions of employment, not excluded by Section 4" of the Act.
5 ILCS 315/7 (West 1994). Section 4 states, in relevant part:
"Employers shall not be required to bargain over
matters of inherent managerial policy, which shall include
such areas of discretion or policy as the functions of the
employer, standards of services, its overall budget, the
organizational structure and selection of new employees,
examination techniques and direction of employees.
Employers, however, shall be required to bargain
collectively with regard to policy matters directly
affecting wages, hours and terms and conditions of
employment as well as the impact thereon upon request by
employee representatives." 5 ILCS 315/4 (West 1994).
In Central City Education Ass'n v. Illinois Educational Labor
Relations Board, 149 Ill. 2d 496 (1992), our supreme court
addressed sections of the Illinois Educational Labor Relations Act
(115 ILCS 5/1 et seq. (West 1994)) which contained language similar
to sections 4 and 7 of the Act. The court set out a three-part
test to determine whether an issue is a mandatory subject of
collective bargaining as follows:
"The first part of the test requires a determination of
whether the matter is one of wages, hours and terms and
conditions of employment. This is a question that the
[Board] is uniquely qualified to answer, given its
experience and understanding of bargaining in *** labor
relations. If the answer to this question is no, the
inquiry ends and the employer is under no duty to bargain.
If the answer to the first question is yes, then the
second question is asked: Is the matter also one of inherent
managerial authority? If the answer to the second question
is no, then the analysis stops and the matter is a mandatory
subject of bargaining. If the answer is yes, then *** the
matter is within the inherent managerial authority of the
employer and it also affects wages, hours and terms and
conditions of employment.
At this point in the analysis, the [Board] should
balance the benefits that bargaining will have on the
decisionmaking [sic] process with the burdens that
bargaining imposes on the employer's authority. Which
issues are mandatory, and which are not, will be very fact-
specific questions, which the [Board] is eminently qualified
to resolve." Central City, 149 Ill. 2d at 523.
This case involves a charge that the City unilaterally
contracted out unit work without engaging in collective bargaining.
In such cases, when making the determination required by the first
part of the Central City test, an administrative agency should
apply the criteria set out in Westinghouse Electric Corp., 150 NLRB
1574 (1965). Fenton Community High School District 100, 5 Pub.
Employee Rep. (Ill.) par. 1004, No. 87--CA--0009--C (ISLRB,
November 29, 1988). The Westinghouse criteria are whether the
contracting out (1) involved a departure from previously
established operating practices; (2) effected a change in the
conditions of employment; or (3) resulted in a significant
impairment of job tenure, employment security, or reasonably
anticipated work opportunities for those in the bargaining unit.
Westinghouse, 150 NLRB at 576.
In this case, both the ALJ and the Board applied the
Westinghouse criteria in making the determination required by the
first part of the Central City test. The ALJ summarily found that
the Board's decision was not a matter which implicated either of
the first two Westinghouse criteria. The ALJ then evaluated the
third Westinghouse criterion. The ALJ stated that the crucial
question in determining whether an employer's decision to contract
out work gave rise to a duty to bargain under this criterion was
whether the employer's action deprived the bargaining unit of
"fairly claimable work opportunities." The ALJ found that the
paramedic work in this case was not bargaining unit work which the
fire fighters had a reasonable expectation would be assigned to
them. The ALJ gave substantial weight to the fact that the City
had not previously provided paramedic services and that the fire
fighters were not qualified by certification to perform paramedic
work. Thus, the ALJ determined that the City's decision did not
implicate any of the Westinghouse criteria.
Contrary to the ALJ, the Board found that the City's decision
implicated each of the Westinghouse criteria. As to the first
Westinghouse criterion, whether the City's decision was a departure
from previously established operating practices, the Board focused
on the way dispatchers handled 911 calls for EMS before and after
the City contracted out the work. The Board determined that the
City's decision caused the fire fighters to lose the responsibility
for providing the first-line response to 911 calls for EMS. The
Board concluded that this was a significant change in operating
practices.
In applying the second Westinghouse criterion, whether there
was a change in the conditions of employment, the Board noted that
as a result of the City's decision the fire fighters responded to
fewer EMS calls and performed fewer EMS duties than before the
City's decision. The Board concluded that this showed a
demonstrable adverse change in the working conditions of the fire
fighters, notwithstanding the fact that no fire fighter had been
laid off or discharged as a result of the City's decision.
The Board strongly disagreed with the ALJ regarding the third
Westinghouse criterion, whether the City's decision resulted in a
significant impairment of the fire fighters' reasonably anticipated
opportunities. The Board focused on the ALJ's reliance on the fact
that the fire fighters lacked the requisite training and
certification to perform paramedic services and, therefore, could
not perform the paramedic services without substantial additional
training.
In finding that the work was fairly claimable by the fire
fighters, the Board first determined that the City itself had
viewed the paramedic work as a reasonable extension of the fire
fighters' duties as evidenced by the City's various attempts to
come to terms with the fire fighters on the matter. The Board next
determined that the City had previously requested its fire fighters
to attain certain levels of EMT certification and had paid for the
training necessary for the fire fighters to attain the requisite
certification. The Board also stated that the EMT certification
levels build upon one another and require advancing skills so that
the paramedic services were really an upgraded or enhanced service,
rather than a completely new program.
On appeal, the City generally contends that the Board used too
liberal a standard in applying the first part of the Central City
test. In the City's view, the ALJ's analysis was correct. More
specifically, the City posits that the Board incorrectly applied
the Westinghouse criteria.
As to the first Westinghouse criterion, the City essentially
maintains that there has effectively been no change in previously
established operating procedures. The City argues that (1) the
fire department and private ambulance companies always shared the
provision of EMS and that has not changed; (2) the fire fighters'
procedures are essentially unchanged in that the fire fighters
continue to respond to all serious EMS calls; (3) nothing has
changed as to the provision of paramedic services because private
companies previously provided those services; and (4) the City has
always made unilateral decisions regarding the provision of EMS and
simply continued to do so when it decided to contract out the
paramedic services.
The Board responds that the evidence shows that the City did
not make a practice of unilaterally deciding about EMS. The Board
points to the history of the relation between the City and the fire
fighters and the periodic discussions between those parties on this
matter. The Board also notes that the record shows that the City
did not previously contract with private companies and argues that
the City's decision to contract with Lifeline was therefore a
change in procedure. Finally, the Board reiterates its conclusion
that because the fire fighters no longer are given the first
priority in responding to calls for EMS there has been a change in
operating procedures.
We disagree with the Board's determination that the City's
decision constituted a departure from previously established
operating procedures and conclude that the Board's determination
was clearly wrong.
The Board's determination ignored the fact that prior to the
City's decision to contract with Lifeline for paramedic services
the fire department and private ambulance companies always
cooperated with each other and shared the duties of providing EMS.
The City's decision has not changed this basic operating procedure.
Private ambulance companies have always provided, both before
and after the City's decision, paramedic services in the City. The
fire department has never provided paramedic services. Under the
contract, the fire department will continue to provide EMS. The
contract provides that Lifeline must request assistance from the
fire department on certain types of emergency calls, including
those involving cardiac or respiratory emergencies, trauma, and all
motor vehicle accidents.
In view of this continuing basic operating procedure, we
believe the Board focused on relatively inconsequential changes in
making its determination regarding the first Westinghouse
criterion. For this reason, we conclude that the Board erred when
it determined that the first Westinghouse criterion was applicable
to this case.
As to the second Westinghouse criterion, the City contends
that the Board's determination that the City's decision effected a
change in the fire fighters' conditions of employment was erroneous
because the fire fighters continued to perform most of the same EMS
that they performed before the City's decision. The City concedes
that the fire fighters no longer respond to calls which merely
require transportation in an ambulance, but dismiss this change
because such calls only constituted a small percentage of the calls
to which the fire fighters previously responded.
The record is unclear as to the exact number and type of calls
to which the fire fighters no longer respond. However, the record
is clear that the City's decision has not resulted in the
elimination of any fire fighter positions or in a reduction in
working hours or wages for any fire fighter. Moreover, the fire
fighters generally continue to work the same shifts that they
worked before the City's decision. While at work, the fire
fighters continue to respond to calls for EMS and continue to
provide basic life support services when called.
On this record, we conclude that the Board's determination
that there was a significant change in conditions of employment as
a result of the City's decision was clearly wrong. Accordingly,
the Board was not entitled to determine that the second
Westinghouse criterion applied in this case.
As to the third Westinghouse criterion, the City contends that
the Board's determination was erroneous because of the qualitative
differences between paramedic services and the EMS which the fire
fighters currently perform. In the City's view, the fire fighters
could not have had a reasonable expectation of performing the
paramedic work because they were not legally qualified to perform
such work. The City asserts that the Board erred in determining
that paramedic services were merely an upgrade of the services the
fire fighters were performing prior to the City's decision. The
City argues that its discussion with the fire fighters about
training the fire fighters to become paramedics is not a valid
basis for the Board's determination. The City maintains that it
always made it clear to the fire fighters that it might contract
out for the work.
The Board responds that the fire fighters had a reasonable
anticipation of work opportunities as paramedics because (1) the
fire fighters had been performing EMS since 1974; (2) paramedic
work is not wholly different or completely new work for the fire
fighters, but simply an upgraded level of EMS; and (3) the City
itself considered the paramedic services to be an upgrade as
evidenced by the discussions the City held and serious
consideration the City gave to using the fire fighters as
paramedics.
Again, the Board's determination was clearly wrong. Although
it is true that the City's fire fighters have been performing EMS
since 1974, it is also true that the fire fighters have never
performed paramedic services and that they lack the required
training and licensure to perform paramedic services. Thus, the
City did not contract out for work which the fire fighters had
previously performed or which they were capable of performing. At
a minimum, extensive training of virtually all the fire fighters
over many months would be necessary to train the fire fighters so
that they could perform paramedic services. This would necessarily
entail a significant upset to the status quo in the operation of
the City's fire department.
Nor are we persuaded that paramedic work is simply an upgrade
or extension of the EMS work the fire fighters have been
performing. Most of the fire fighters are EMT--As. Two fire
fighters who had attained EMT--I licenses voluntarily downgraded
themselves back to EMT--A. The chasm between an EMT--A and a
paramedic is substantial. An EMT--A may only perform the most
basic life support functions. A paramedic may perform advanced
life support functions involving several procedures which an EMT--A
is not qualified to perform. Paramedics often perform these
procedures in the treatment of real or potential acute life-
threatening conditions. Thus, paramedic work is qualitatively
different from and completely new from EMT--A work, the work that
the fire fighters have been performing.
Finally, the fact that the City held discussions with the
Union or BCEA about training the fire fighters to be paramedics
does not mean that the City considered paramedic services to be
merely an upgrade of the EMT--A services the fire fighters had been
performing. The City made it clear that it was also considering
continuing to use a private company to provide the services. The
mere fact that a party proposes or discusses an issue does not make
the issue a mandatory subject of collective bargaining. American
Federation of State, County & Municipal Employees v. Illinois State
Labor Relations Board, 190 Ill. App. 3d 259, 269 (1989).
Based on the foregoing, we conclude that the Board erred when
it determined that each of the Westinghouse criteria was applicable
in this case. Accordingly, the Board erred when it found that the
answer to the first part of the Central City test was "yes," i.e.,
that the City's decision was a matter of wages, hours, and terms
and conditions of employment. The correct answer was "no."
Because the correct answer to the first part of the Central
City test was "no," the Board should have ended its inquiry at that
point. Central City, 149 Ill. 2d at 523. For the same reason, The
Board should have determined that the City did not have a duty to
bargain with the Union over the City's decision to contract out for
paramedic services.
Based on the foregoing, we conclude that the Board erred when
it determined that under the Central City test the City's decision
was a mandatory subject of collective bargaining.
Accordingly, the Board's decision and order is reversed.
Reversed.
Inglis and Bowman, JJ., concur.