In re
City of Claremore
and
International
Association of Firefighters,
Local 1077
117 LA (BNA) 722
FMCS Case No.
01/0627-12769-8
April 28, 2002
Sylvia Marks-Barnett, Arbitrator
*
* Selected by parties through procedures
of the Federal Mediation and Conciliation Service
The parties jointly
submitted the following issue to the Arbitrator: whether the Employer violated the
Agreement of Recognition, Bargaining Procedure and Operating Contract Between
City of Claremore and Local 1077, FY 2000-2001 (hereinafter referred as the”
Agreement”), when it refused to allow a second man (Grievant) off at Substation
Two.
Pertinent Provisions of the Agreement
It is the intent and purpose of this Agreement, ... to protect the public health of the citizens of Claremore, Oklahoma, from strikes, work-stoppages or slow-downs by the Union; to insure that the employees Bargaining Unit not be denied other well recognized rights of labor, including the right to be represented ... and the right to bargain collectively with Employer concerning wages, hours, and other terms and conditions of employment ...
The Employer recognizes the
Union as the sole and Exclusive Bargaining Agent for all permanent paid members
of the Fire Department, excluding the Chief of the Fire Department and the
Administrative Assistant ...
Section 1.
The Union recognizes the
prerogative of the City to operate and manage its affairs in all respects in
accordance with its responsibilities, and the powers of authority which the
City has not officially abridged, delegated, of (sic) modified by this
Agreement are retained by the City; management officials of the City retain all
Management rights, not otherwise specified and all rights, in accordance with
applicable laws, and regulations, but are not limited to, the following:
A. To manage and direct the
employees of the Fire Department.
B. To hire, promote, transfer,
schedule, assign, and retain employees in positions with the Fire
Department.
* * *
E. To maintain the efficiency of the operations of the Fire
Department.
F. The number, types and grades of positions or employees assigned
to an organizational unit, department or project.
* * *
Section 4
All rights and privileges which
are not included in this Agreement currently enjoyed by employees covered in
Article II, Section 2, shall remain in full force, unchanged and unaffected in
any manner unless and except as modified or changed by the specific terms of
this Agreement.
Section 1
The Employer and the Union
hereby stipulate that all the terms and provisions of this Agreement are
subject to the provisions of and hereby incorporate by reference, the Oklahoma Municipal
Code [Title 11], Sections 51-101, et seq.
Section 1
Vacation time will be calculated
in accordance with established Fire Department policy ...
Title 11. Section 51-111 Agreements—Contents
... All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of fire departments ... currently in effect on the effective date of any negotiated agreement shall be deemed a part of said agreement unless and except as modified or changed by the specific terms of such agreement. . . .
From the exhibits
and the testimony, the facts appear to be that the Fire Department for the City
of Claremore consists of one central station (hereinafter referred to as
“Station One”) and two sub-stations (hereinafter referred to, respectively, as
“Station Two” and “Station Three”), with, at the time the grievance here in
dispute was filed, six men assigned at Station One, four men at Station Two and
three men at Station Three, per shift. The Union is the Bargaining Agent for
and represents all firefighters employed by the Employer. At the time this
dispute arose, the parties were operating under their Agreement, effective July
1, 2000.
In 1980, with two stations in existence, the parties
established a vacation scheduling policy, by which three firefighters were
allowed off per shift, at their choice, based on seniority at each station. In
1985-86, after a third station had been built and staffing had been increased
by three, for a total of 11 firefighters per shift, this policy was changed to
reflect that four men could be off per shift, two at Station One and one each
at Station Two and Three. Also, at this time, the Employer determined that the
minimum manning requirement was eight. This resulted in a firefighter being
called for overtime whenever four men from the same shift exercised their right
to be off under the policy.
During the contract
negotiations in 1990, the Employer proposed changing the policy, but the
proposal was withdrawn. Then, in 1994, the Fire Chief at the time, Mike Melton,
unilaterally changed the policy in several respects, the one which is pertinent
to the issues here reflected that only three men could be off per shift. Chief
Melton's action was grieved by the Union. In arbitration, this dispute was
resolved in favor of the Union. The Union's
Post-Hearing Brief, in that arbitration, set forth, and urged Arbitrator Samuel
D. Wang to adopt, the position that the vacation scheduling policy in effect at
the time was four firefighters off per shift, two at Station One and one each
at Station Two and Three, and that this policy was one of the terms which
governed the actions of the parties under the prevailing rights clause of the
Agreement and by Statute, i.e. 11 O.S. §51-111. In the Award of July 5, 1995, Arbitrator Wang found that
the vacation scheduling policy of “permitting four men off at a time existed
and was accepted by both parties (having existed for many years)”, as it
existed before Chief Melton's change, was a term, as a prevailing right, of the
Agreement and when Chief Melton unilaterally changed that policy, the Employer
violated the Agreement. In the Award, Arbitrator Wang directed the Employer to
“resume administration of the Vacation and Policy selection process as was
established at the time of the conclusion of negotiations establishing the
current Agreement.” Thereafter, the parties did resume the established policy
and continued to do so.
In 1999, however,
the City of Claremore determined to increase the staffing of the Fire
Department, by the addition of three new firefighters, each year, for four
years. During July, 1999, the first group of three were hired, one for each
shift. Acting in response to rumors that the
Fire Chief at the time, Jim Arnold, was going to assign these three (one to
each shift) to Station Two, the Union President, Bryan McDonald, met with Chief
Arnold. In the ensuing discussion, President McDonald told Chief Arnold that
the ratio is for every three men, one person gets let off and if he were to put
the new men at Station Two, the Union would file a grievance. Chief Arnold said
that if that was how the Union felt, he would assign the new men to Station
One. This was acceptable to the Union because two men were already allowed off
at a time at Station One, so increasing the staff there to six per shift would
not require any additional number of firefighters to be allowed off. Deputy
Chief Ramsey, who was present at the meeting, admitted that President McDonald
did mention that there could be a possible grievance, but denied that he heard
any mention of a three-to-one ratio. Chief Arnold was not called to testify by
either party.
The following July,
the second group of three was hired, which was to be assigned to the three
shifts at Station Two. In the mind of the Union, this situation would call for
an allowance of an additional firefighter off at that Station, or two per
shift. Again, discussions were engaged in. However, this time, Chief Arnold
took the position that no matter how many people were hired, there would be
only four people allowed off station-wide.
Ultimately, both President McDonald and Chief Arnold set their respective
positions to writing in correspondence with either other. Then, on January 8,
2001, the Grievant, Mark Owens, at Station Two, was denied his first pick
vacation date in deference to a more senior firefighter. This decision was made
by Battalion Chief Wilhoite, implementing Chief Arnold's position that there
could only be one firefighter of per shift at Station Two irrespective of the
fact that there were then four firefighters assigned to that Station. It was
this action which is the basis of the grievance before the Arbitrator.
Discussion and Findings
The advocates are to be commended for presenting a
well-prepared case in a zealous, as well as congenial fashion, all of which was
of great assistance to and is appreciated by the Arbitrator.
The Employer contended that:
(1) The prior arbitration award
between the parties made by Arbitrator Wang should be given res judicata effect
or serve as collateral estoppels to the determination of this grievance;
(2) No agreement was reached, in 1999 or thereafter, by the parties to increase the number of firefighters who could be off based on a ratio formula, or at all;
(3) Chief Arnold did not acquiesce to nor act consistently with
the alleged policy for a ratio formula to determine the number of firefighters
who could be allowed off by assigning the employees hired in 1999 to the Main
Station; and,
(4) Any claim that a past practice has been modified requires
proof of mutual acceptance.
The contentions of the Union were that
(1) the past practice as to vacation scheduling is that when
staffing has increased, the number of firefighters allowed off has increased;
and
(2) Arbitrator Wang's Award supports the Union's position.
In order to avoid an unduly lengthy opinion, the Arbitrator
will not respond to every argument presented by both the Union and the
Employer, but will, instead, focus her attention only on those matters which
she deems necessary to a correct, proper and fair decision of the dispute.
Prevailing Rights
Oklahoma law, the FPAA, provides that whatever rules,
regulations, fiscal procedures, working conditions, departmental practices and
manner of conducting the operations and administration of fire departments in
existence on the date any negotiated collective bargaining agreement become a
part of that agreement. Additionally, the CBA, in Article 6, Section 4, gives
to members of the Union all rights and privileges not included in the
Agreement, but in existence as of the effective date of CBA. This bundle of
management functions, together with employee benefits are known in the parlance
of the organized workplace as “prevailing rights.” Prevailing rights exist in
tension against and make an incursion into management rights, which, in this
case, are set out in Article 4 of the CBA, and which, in pertinent part,
provide that management has the right to schedule vacations and determine the
number of employees assigned to an organizational unit.
·
Whether There was a
Past Practice Concerning the Scheduling of Vacations in Effect on July 1, 2000
Which Became Part of the CBA And, If So, What Was It?
The evidence
demonstrates that from, at least 1980, to the completion of Station Three in 1986,
three men were allowed off per shift. There is no evidence as to how these
vacancies were allocated. With the completion
of Station Three and increased staffing of 11 firefighters, the number of men
allowed off per shift was increased to four. There is no evidence as to whether
this change was accomplished through negotiation or by the Employer's
unilateral action. Nonetheless, two of the four allowed off were allocated to
Station One, with the remaining two allocated one each to Station Two and Station
Three, respectively. In the 1995 arbitration, the Union took the position, as
reflected in its post-hearing brief, that allowing two men off at Station One,
one at each of the other Stations, was a past practice and could not be
unilaterally changed by the Employer. That position was adopted by the
Arbitrator. There is no dispute that, from that time through November, 1999,
because of the statutory and contractual provisions for prevailing rights, the
Employer's right to schedule vacations was limited by the established past
practice of allowing two men off at Station One, one at Station Two and one at
Station Three, for a total of four men off out of a staff of 11.
The Union claims that this practice is based on and to be
interpreted as “to allow one man off for every three assigned to the stations”,
to which the Employer takes exception. In the circumstance of the increased
staffing which existed at the time of the Grievance, this made a difference. It
is this difference which is the basis of the dispute under consideration.
The Union asks that the Arbitrator interpret the
descriptive language of the past practice. This requires that the Arbitrator
engage in the same analysis which would be used to interpret any terms of the
CBA. Even if one goes beyond the absence of ambiguity in that language to look
at all the circumstances to reveal the intent of the parties, there is nothing
in this record to convince the Arbitrator that when the past practice of
allowing four men off was instituted, the intent was that it was based on a
three to one ratio. President McDonald candidly admitted that he was not able
to testify as to how the formula came up, that the Employer never presented it
to him as a ratio, he just knew that with 11 people on shift, four got off and
if you do the math, that represents a ratio of one for every three.
It is arguable that “11 people on, 4 allowed off” does lend
itself to a loose representation of “one man off for every three assigned.”
However, it is just as arguable that the intention of the Employer in agreeing
to two men off at Station One and one man off at Station Two and Station Three,
respectively, was in exercise of its rights to determine the number of
firefighters needed at each Station for the efficient operation of the
equipment located at each Station and to address the needs of public safety.
The Union points to Chief Arnold's November, 1999, decision
and action to go along with the Union's notice that if he assigned the new men
to the shifts at Station Two, an additional man would need to be allowed off
and, instead, assigned the new men to the shifts at Station One, which would
not disregard the formula/ratio. The Union claims that this demonstrates that
Chief Arnold changed his mind about where to assign the new men because he knew
that the past practice represented and required a formula/ratio of one man off
for every three assigned.
While this is a reasonable explanation, a stronger argument
could have been made if Fire Chief Arnold had assigned the new men at Station
Two and agreed to allow two men off. Additionally, it is equally arguable that
Chief Arnold merely deferred to President McDonald's report of a possible
grievance in an effort to forestall its occurrence. Doing this is actually
within the framework of good labor relations. If this were deemed to rise to
the level of establishing a particular interpretation of the practice, or even
to modifying the practice, there would certainly be a chill placed on any
agreements being made outside of a contract negotiation session.
Inasmuch as the Union is the party making a claim for
interpretation, it has the burden of proof. The Arbitrator finds that this
burden of proof was not met. The past practice in existence on the effective
date of the CBA was that two men were permitted to be off at Station One, one
man at Station Two and one man at Station Three.
Conclusion
The Arbitrator is
aware that circumstances of growth are occurring at the Fire Department and the
past practice may no longer be feasible. Clearly, the situation calls for some
changes in the vacation scheduling policies.
The Arbitrator is also
aware and considered that the increased staffing is diminishing the
opportunities to work overtime. However, the benefit involved in this past
practice is the right to be allowed off, not a right to be afforded overtime
opportunities. The Arbitrator was not directed to, nor could she find, a
provision in the CBA guaranteeing overtime. This absence leaves the matter of
determining overtime squarely within management rights.
There will soon be a time when the increased staffing is
completed and the new station built. The Arbitrator is aware and considered
that, under the current practice, the men assigned to Station Four would not
have any right to be allowed off at all. As tempting as it was to resolve today
problems for the parties in the future, the Arbitrator, to a greater extent,
was most reluctant to, in view of the evidence, saddle the Employer on public
safety, manning and equipment issues.
Just as the practice
cannot be changed unilaterally, likewise, it cannot be given an interpretation
that is not proven to be within the intent of the parties. The parties are left
to negotiation. Based on all the foregoing, the conclusion is that the Employer
did not violate the Agreement when it refused, on January 8, 2001, to allow the
Grievant off at Station Two.
Award
The Grievance is
denied.