Request By:
Joseph T. Condit, Esq.
City Solicitor, City of Covington
906 City-County Building
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter requesting an interpretation of KRS 95.500(3) and KRS Chapter 345, which pertains to "Collective Bargaining for Firemen. " You state that Covington, a city of the second class, is in the process of negotiating with the International Association of Firefighters' Union, Local No. 38, for the fiscal year beginning July 1, 1980. The city and the firefighters have had a long history of collective bargaining and in 1978 the city petitioned the Kentucky Commissioner of Labor to be included under the provisions of KRS Chapter 345.
You refer to a letter from this office, dated September 13, 1978, and addressed to Mr. Walter J. Pagan, where we stated in part that firemen operating under the terms and provisions of KRS Chapter 345 may negotiate with their employer as to work hours. We also said in that letter that were it not for the applicability of KRS Chapter 345 to the city of Covington and its firefighters, the provisions of KRS 95.500(3) would be applicable. KRS 95.500(3) states in part that the fire department of a second class city shall be divided into three platoons and each platoon shall be on duty for twenty-four consecutive hours, after which it shall be allowed to remain off-duty for forty-eight consecutive hours.
The city wishes to know whether the opinion of this office is still consistent with the opinion set forth in the letter of September 13, 1978. If that opinion is still applicable, you ask whether the city may negotiate with its firemen for a forty-hour week and divide its fire department into four platoons which work five eight-hour days. In addition, you ask whether the city may withdraw its petition requesting that it be included under KRS Chapter 345 and return to the mandatory provisions of KRS 95.500(3).
KRS Chapter 345 deals with "Collective Bargaining for Firemen" and the practical effect of this legislation, enacted by the 1972 session of the General Assembly, is to limit its application, generally, to the city of Louisville. KRS 345.010, however, contains the following definitions:
"(1) 'Public employer' means a city containing a population of at least 300,000 as determined by the last federal census or any city that petitions the Commissioner of Labor to be included by this chapter;
(2) 'Fire fighter' means an employe of the public employer engaged in serving the public by providing fire protection, including those covered by KRS Chapter 95;
(3) 'Labor organization' means any chartered labor organization of any kind in which fire fighters participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of employment;
(4) 'Exclusive representative' means the labor organization which has been designated by the state labor relations board as the representative of the majority of fire fighters in appropriate units or has been so recognized by the public employer; "
(Emphasis supplied by the undersigned.)
It appears that the city of Covington petitioned the Kentucky Commissioner of Labor to be included under the provisions of KRS Chapter 345. Furthermore, the Covington Professional Firefighters Union, Local No. 38, I.A.F.F., has been certified as the exclusive bargaining representative for the fire fighters of Covington as of April 24, 1978. Thus, the appropriate measures have been taken to bring the city and the fire fighters union within the provisions of KRS Chapter 345.
KRS 345.030(2) provides in part that the labor organization designated as the representative of the majority of the fire fighters shall be the exclusive representative for the employes for the purpose of collective bargaining with respect to rates of pay, wages, hours and other conditions of employment. KRS 345.040 requires the public employer and the labor organization designated as the exclusive representative of fire fighters to bargain collectively. KRS 345.050(3) states in part that to bargain collectively is to carry out in good faith the mutual obligation of the parties, to meet together at reasonable times and to negotiate in good faith with respect to wages, hours and other conditions of employment.
As noted previously, KRS Chapter 345 defines "fire fighter" to include those covered by KRS Chapter 95 where, insofar as firemen of a city of the second class are concerned, there is no authority to negotiate with regard to hours of work and other conditions of employment. KRS Chapter 345 appears to grant to firemen covered thereunder rights which they formerly did not have and lacked the authority to exercise. There are frequent references in KRS Chapter 345 to wages, hours and other conditions of employment as factors which are subject to collective bargaining and negotiation between the public employer and the representative of the fire fighters.
Thus, in our opinion, where the public employer (the city) and the fire fighters of that city are subject to and operating under the provisions of KRS Chapter 345, they may collectively bargain and negotiate with respect to wages, hours of work and other conditions of employment notwithstanding the requirements of KRS 95.500(3). Were it not for the applicability of KRS Chapter 345 to the city and its fire fighters, the provisions of KRS 95.500(3) would govern with respect to firemen in cities of the second class.
As to your second question, it is our opinion that a city, which was not at the outset covered by the provisions of KRS Chapter 345, which petitions to be included within the Chapter, cannot subsequently withdraw that petition of inclusion. The Chapter provides that cities with a population of at least 300,000 persons are covered by its terms and provisions and there are no exceptions to such coverage. Furthermore, the Chapter does not provide for the withdrawal of a petition for inclusion so a city which has, through its own actions, been included under the Chapter, can only look to the General Assembly for a remedy to its present situation. The Chapter apparently intends to avoid situations where cities can constantly petition for inclusion and then, at their pleasure, petition to withdraw that election to be included.