Gaithersburg-Washington Grove Fire Dept., Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gaithersburg-Washington Grove Fire Dept., Inc. and Career Firefighters of Gaithersburg-Washington Grove Fire Dept., Inc., affiliated with Local 1664, International Association of Fire Fighters, AFL-CIO-CLC, Petitioner. Case 5-RC- 11181 August 18, 1980 DECISION AND ORDER REMANDING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on April 23 and 25, 1980, before Hearing Officer Kathleen Boni. Following the close of the hearing, the Regional Director for Region 5 transferred this case directly to the Board for decision. Thereafter, the Employer and the Pe- titioner filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing, and, with the excep- tion of the ruling discussed in footnote 4, finds that they are free from prejudicial error. They are hereby affirmed. The parties stipulated, and we find, that the Peti- tioner, Career Firefighters of Gaithersburg-Wash- ington Grove Fire Dept., Inc., affiliated with Local 1664, International Association of Fire Fighters, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. The Employer, Gaithersburg-Washington Grove Fire Dept., Inc., is a nonprofit corporation orga- nized under Maryland law with its main office in Gaithersburg, Maryland, and is engaged in provid- ing firefighting and rescue squad services for Mont- gomery County, Maryland. The Employer is I of 16 fire departments and rescue squads operating in Montgomery County. During its July 1, 1978, to June 31, 1979, fiscal year, the Employer received gross revenues in excess of $500,000, and, during that same period, had expenditures of $254,000, 68 to 80 percent of which was used to purchase goods from companies located within and outside the State of Maryland, such goods all having been manufactured outside the State of Maryland. As the Employer herein has close ties with an exempt entity, i.e., Montgomery County, the Board's jurisdiction in this case is controlled by the standard set forth in National Transportation Serv- 251 NLRB No. 45 ices, Inc., 240 NLRB 565 (1979).' Thus, the thresh- old issues herein are "whether the employer itself meets the definition of 'employer' in Section 2(2) of the Act and . . . whether the employer has suffi- cient control over the employment conditions of its employees to enable it to bargain with a labor or- ganization as their representative." 2 For the rea- sons stated below, we are unable to make either of these determinations on the present record, and, ac- cordingly, we will remand this proceeding to the Regional Director for the purpose of conducting a further hearing. On April 30, 1980, the county executive for Montgomery County signed new legislation 3 which radically changed the county laws under which the Employer must operate. This legislation, the text of which is included in the record as Em- ployer's Exhibit 3, is a comprehensive recodifica- tion of the county laws providing for fire and rescue services. The legislation establishes a county agency, the Department of Fire/Rescue Services, the basic functions of which include the administration of all laws relative to fire prevention, as well as the pur- chase and assignment of all apparatus and facilities purchased in whole or in part with county govern- ment revenues of any kind. The legislation also es- tablishes a seven-member fire and rescue commis- sion, the function of which is to provide the policy and regulatory framework for the fire departments and rescue squads operating in Montgomery County, including the adoption of countywide4 policies, regulations, standards, procedures, plans, and programs applicable to all fire, rescue, and emergency medical service operations. The legisla- tion further establishes a fire board, the basic func- tions of which are to advise the fire commission, and to support the maintenance and enhancement of volunteer participation in fire, rescue, and emer- gency medical services. Since the testimony taken at the hearing in this matter largely dealt with the Employer's relation- ship and powers vis-a-vis its employees and Mont- gomery County under the then-existing county laws, and since the limited testimony as to the new t Member Penello dissenting. Member Penello agrees that a decision herein should await the development of a complete record. 2 240 NLRB 565. 3 Montgomery County, Maryland, Bill #15/16-79 (April 30, 1980). 4 We note that the Hearing Officer erred in excluding testimony as to specific personnel procedures at fire departments in Montgomery County other than the Employer herein. The Employer offered such testimony in an effort to establish the existence of uniform personnel procedures throughout the county, such uniformity allegedly being required by county law. As it is now clear that county law requires some degree of uniformity, such testimony should be taken in order to determine the ap- propriateness of the requested bargaining unit as well as the degree of control over employment conditions left to the Employer under the new legislation. GAITHERSBURG-WASHINGTON GROVE FIRE DEPT. 295 legislation centered on its legislative history, we are unable to determine what effect this new legis- lation, and the various policies, regulations, stand- ards, etc., yet to be adopted pursuant thereto, has upon the issues raised by the Petitioner's petition. Accordingly, we will remand this proceeding to the Regional Director for the purpose of conduct- ing a further hearing. ORDER It is hereby ordered that the above-entitled matter be, and it hereby is, remanded to the Re- gional Director for Region 5 for the purposes of conducting a further hearing before a duly desig- nated hearing officer for the purpose of receiving evidence to resolve the issues raised by the petition filed by Career Firefighters of Gaithersburg-Wash- ington Grove Fire Dept., Inc., affiliated with Local 1664, International Association of Fire Fighters, AFL-CIO-CLC, in light of Montgomery County, Maryland, Bill #15/16-79 (April 30, 1980),and that said Regional Director be, and he hereby is, au- thorized to issue notice thereof.