Des Moines Association of Professional Firefighters, Local No. 4 v. Public Employment Relations Board, and City of Des Moines, Intervenor-Appellee.

IN THE COURT OF APPEALS OF IOWA

No. 15-0456
Filed February 10, 2016

DES MOINES ASSOCIATION OF
PROFESSIONAL FIREFIGHTERS,
LOCAL NO. 4,
Petitioner-Appellant,

vs.

PUBLIC EMPLOYMENT RELATIONS
BOARD,
Respondent-Appellee,

and

CITY OF DES MOINES,
Intervenor-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

The Des Moines Association of Professional Firefighters appeals the

district court’s order affirming the Public Employee Relations Board in its review

of a prohibited practice complaint. AFFIRMED.

Charles Gribble of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann, L.L.P., Des Moines, for appellant.

Diana S. Machir, Public Employee Relations Board, Des Moines, for

appellee.

Carol J. Moser, Deputy City Attorney, for intervenor.

Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.

The Des Moines Association of Professional Firefighters, Local No. 4

(Local 4) appeals the district court’s order affirming the Public Employee

Relations Board’s (PERB) review of a prohibited practice complaint (PPC). On

appeal, Local 4 claims the City committed a prohibited practice by unilaterally

changing the lieutenants’ wages and job classifications without collective

bargaining. We affirm on appeal.

I. BACKGROUND FACTS AND PROCEEDINGS

We incorporate the district court’s summary of the factual background:

The facts in the record, as found by the Public Employment
Relations Board (“PERB”), are not disputed. The City of Des
Moines (“City”) is a public employer within the meaning of Iowa
Code § 20.3(10) [(2011)]. The Des Moines Association of
Professional Fire Fighters, Local 4 (“Local 4”) is certified by PERB
as the exclusive bargaining representative for the bargaining unit of
City employees, which among others includes fire fighters, fire
lieutenants, and fire captains. The City and Local 4 are parties to a
collective bargaining agreement (“CBA”). Article 26 of the CBA
contained a provision about wages. This provision detailed the
compensation range for fire fighters, fire lieutenants, and fire
captains. Fire captains usually make about $5,500 more than fire
lieutenants.
The City operates ten fire stations providing 24 hour service.
The fire stations are either single-company or multi-company. A
company is a group of employees who staff an apparatus, such as
a fire engine or ambulance. Prior to 1989, lieutenants were in
charge of single-company fire stations and captains were in charge
of multi-company fire stations. In 1989, the City assigned captains
to command all fire stations, both single and multi-company.
Occasionally, lieutenants have been assigned to temporarily serve
as acting captains if the captain was absent. Under the CBA, the
lieutenant assigned as an acting captain would receive additional
compensation called “acting pay.”
In fall 2011, the City fire chief made a budget
recommendation to return to the pre-1989 staffing assignment by
having lieutenants command all single-company fire stations. In
February 2012, the City Council adopted the budget
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recommendation. On April 2, 2012, the first lieutenant reported for
duty to permanently command a single-company fire station.
These lieutenants are still paid at the lieutenant compensation level
outlined in the CBA. Lieutenants at multi-company fire stations who
temporarily fill in for captains are still paid the additional “acting
pay.”
Local 4 filed a prohibited practice complaint with PERB on
June 29, 2012, arguing that the City, by assigning lieutenants to
perform the duties of a captain without additional compensation,
made a unilateral change that affected terms of the CBA that are
mandatory subjects of bargaining. PERB found that the change did
not affect a mandatory topic of bargaining, stating that:
The changes implemented by the City on April
2, 2012 did not alter the status quo concerning job
classifications. No job classification existing
immediately prior to April 2 was eliminated or altered
in any way. Nor was a new job classification created.
Instead, the changes . . . plainly related to the
assignment of captains and lieutenants, and the job
content or duties of the lieutenants—matters not
within the common and ordinary meaning of wages,
job classifications or any other 20.9 topic.
On July 15, 2014, Petitioner filed this Petition for Judicial
Review of PERB’s June 2, 2014 ruling.

The district court affirmed PERB’s decision on February 16, 2015, finding

PERB used the proper analysis to determine whether the City’s action involved a

mandatory bargaining topic pursuant to Iowa Code section 20.9 (Scope of

Negotiations). The district court found PERB’s interpretations of “wages” and

“job classifications” was not irrational, illogical, or wholly unjustifiable so as to

require reversal. See Iowa Code § 17A.19(10)(m) (2013). Local 4 now appeals.

II. STANDARD OF REVIEW

Judicial review of an agency ruling is governed by [the Iowa
Administrative Procedure Act [IAPA], Iowa Code chapter 17A]. The
district court reviews the agency’s decision in an appellate capacity.
In turn, we review the district court’s decision to determine whether
it correctly applied the law. We must apply the standards set forth
[in the IAPA] and determine whether our application of those
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standards produces the same result as reached by the district
court.

AFSCME Iowa Council 61 v. Iowa Pub. Emp’t Relations Bd., 846 N.W.2d 873,

877–78 (Iowa 2014) (citations omitted). If so, we affirm the judgment of the

district court. See id.

Where, as here, the question presented is whether the agency correctly

interpreted statutory text, the level of scrutiny applied during review of the

agency’s action depends on whether the legislature has vested the agency with

interpretive authority. Id. “Because the legislature has now expressly vested

PERB with discretion to interpret and apply chapter 20, we review PERB’s

interpretation and application of section 20.9 to determine if it is ‘irrational,

illogical, or wholly unjustifiable.’” Id. at 878 (quoting Iowa Code § 17A.19(10)(l),

(m)).

A decision is “irrational” when it is “not governed by or according to
reason.” Webster’s Third New International Dictionary 1195. A
decision is “illogical” when it is “contrary to or devoid of logic.” Id. at
1127. A decision is “unjustifiable” when it has no foundation in fact
or reason. See id. at 2502 (defining “unjustifiable” as “lacking in . . .
justice”); id. at 1228 (defining “justice” as “the quality or
characteristic of being just, impartial or fair”); id. (defining “just” as
“conforming to fact and reason”).

Id. “‘The burden of demonstrating . . . the invalidity of agency action is on the

party asserting invalidity.’” Id. (quoting Iowa Code § 17A.19(8)(a)).

III. DISCUSSSION

Local 4 claims the City committed a prohibited practice by unilaterally

changing the lieutenants’ wages and job classifications without collective

bargaining. Local 4 claims PERB either gave a “narrow and restrictive” meaning
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to the definition of “wages” and “job classification” in order to find no unilateral

change to those subjects occurred. Or, PERB made a unilateral change to the

lieutenants’ job classifications and wages even using PERB’s narrow definition of

those terms.

The Public Employee Relations Act (PERA), Iowa Code chapter 20,

governs collective bargaining between public employers and public employee

organizations. See AFSCME Iowa Council 61, 846 N.W.2d at 878. Chapter 20

provides a provision establishing mandatory collective bargaining on certain

specified matters, while also providing public employers with “exclusive, public

management powers in traditional areas.” Id. (citations omitted). Iowa Code

section 20.7 outlines the “rights” of public employers to:

1. Direct the work of its public employees.
2. Hire, promote, demote, transfer, assign and retain public
employees in positions within the public agency.
3. Suspend or discharge public employees for proper cause.
4. Maintain the efficiency of governmental operations.
5. Relieve public employees from duties because of lack of work or
for other legitimate reasons.
6. Determine and implement methods, means, assignments and
personnel by which the public employer’s operations are to be
conducted.
7. Take such actions as may be necessary to carry out the mission
of the public employer.
8. Initiate, prepare, certify and administer its budget.
9. Exercise all powers and duties granted to the public employer by
law.

Iowa Code section 20.9 lists seventeen topics that are exclusively subject

to collective bargaining procedures; this list includes employees’ “job

classifications” and “wages.” Iowa Code section 20.10 defines a “prohibited

practice.” Three subsections of section 20.10 set forth conduct that can
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constitute a prohibited practice, and each subsection requires that the party

charged with the prohibited conduct act “willfully.” Iowa Code § 20.10(1), (2), (3).

Ultimately, our question on judicial review, as framed by PERB, is: Did the

City commit a prohibited practice when it changed the status quo by placing

lieutenants in charge of single-company stations as permanent assignments,

while continuing to pay them at the lieutenant rate, without bargaining with Local

4. A two-prong test is used to determine if a proposed change should be

subjected to mandatory bargaining. Waterloo Educ. Ass’n v. Iowa Pub. Emp’t

Relations Bd., 740 N.W.2d 418, 429 (Iowa 2007). The first prong, the threshold

test, is used to determine if “a proposal fits within the scope of a specific term or

terms listed by the legislature in section 20.9. Once that threshold test has been

met, the next inquiry is whether the proposal is preempted or inconsistent with

any provision of law.” Id.

The PERB found the changes made by the City failed the threshold test.

The PERB determined:

Wages has come to be defined as payment for labor or
services, usually based on time worked or quantity produced, or as
payment for labor or services on an hourly, daily or piecework
basis. Waterloo Educ. Ass’n v. PERB, 740 N.W.2d 418, 430 (Iowa
2007). The topic also includes fundamental aspects of wage
payment, such as the time and place thereof. Waterloo Comm.
Sch. Dist. v. PERB, 650 N.W.2d 627, 634 (Iowa 2002).
The changes implemented by the City on April 2, 2012 did
not alter the wages of any lieutenants or any other members of the
Association-represented bargaining unit. Prior to April 2, captains
were compensated at pay grade 25 and lieutenants at pay grade
23, regardless of their standing assignment. After April 2, captains
continued to be compensated at pay grade 25 and lieutenants at
pay grade 23. There was no change to the wage of either rank.
The topic of job classifications, the Board has indicated, . . .
relates to the arrangement of jobs into categories, based on
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selected factors, for the primary purpose of establishing wage or
salary rates. It does not relate to the assignment of employees,
notification of those assignments, or the qualifications for
employment (although those qualifications, i.e., “training,
experience, or skill,” may be the basis for the categorical
arrangement of jobs). Nor does it include job content (the
functions, requirements, and duties of a given job) or job
description (a written record summarizing the main features or
characteristics of a job, including description of duties,
responsibilities, promotional opportunities, general working
conditions, qualifications, materials handled, etc.). Bettendorf
Comm. Sch. Dist., 76 PERB 598.
The changes implemented by the City on April 2, 2012, did
not alter the status quo concerning job classifications. No job
classification existing immediately prior to April 2 was eliminated or
altered in any way. Nor was a new job classification created.
Instead, the changes implemented on April 2, 2012, plainly
related to the assignment of captains and lieutenants, and the job
content or duties of the lieutenants—matters not within the common
and ordinary meaning of wages, job classifications or any other
section 20.9 topic. While these changes might reasonably be
expected to precipitate bargaining proposals by [Local 4] that
lieutenants assigned to lead single-company stations be
compensated at a premium rate (a wage proposal) or that a new
job classification for lieutenants so assigned be created (a job
classification proposal), or both, such does not alter the subject
matter of the changes themselves.
....
Because the changes implemented by the City were not
mandatory topics, it had no duty to bargain over them with the
Association and their implementation was not a prohibited practice
within the meaning of Iowa Code sections 20.10(1) or 20.10(2)(a),
(e) or (f), as alleged in the [Local 4’s] complaint.

We agree with the district court’s conclusion the PERB’s decision was not

the result of an interpretation or application of a statute that was irrational,

illogical, or wholly unjustifiable. See Iowa Code § 17A.19(10)(l), (m). We affirm.

AFFIRMED.