Change of
working conditions:
Management violated the bargaining
agreement when it required EMTs to administer vaccination shots to city
employees. Although EMTs administered blood pressure tests, blood pressure
testing does not establish past practice of administering shots for preventive
health care.
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In re
City of Madison Heights, Michigan
and
Madison Heights Fire Fighters Association
119 LA (BNA) 390
AAA Case No. 54-39-1752-02
October 9, 2003
Donald F.
Sugerman, Arbitrator.
I. The
Issue
The pivotal question in this case is whether the
City of Madison Heights (“City”or “Employer”) violated the terms of its
collective bargaining agreement (“CBA”) 1 with the Madison Heights Fire
Fighters Association (“Association”) by directing bargaining unit employees in
the classification of Emergency Medical Technician (“EMT”) to administer
influenza (“flu”) vaccination shots “to any City worker or elected official who
wishes to receive the vaccine.” 2
Virtually the
same dispute as the one described above occurred a year earlier. In December
2001, the Chief issued a directive that paramedics were to administer flu shots
to all First Responders (police officers and fire fighters) who wish to receive
the vaccine. This, too, prompted a grievance from the Association, and failing
settlement in the intermediate steps of the procedure, led to a demand for
arbitration being filed with the American Arbitration Association. Shortly
before the matter was to be heard by an arbitrator, the parties agreed that the
“grievance arbitration will be withdrawn without precedent or prejudice. . . .
In essence, again, both parties are where they were under the collective
bargaining agreement prior to this dispute.”
II. Relevant
Parts of the CBA
The
Association relies upon Article XVIII entitled, “Maintenance of Conditions.” It
reads as follows:
Section 1. Wages, hours and conditions of employment in effect at
the execution of this Agreement shall, except as improved herein, be maintained
during the term of this Agreement.
The City
relies upon Article XVII entitled, “Management Rights.” That provision,
provides in relevant part, as follows:
Section 1. It is recognized that the management of the City, the
control of its properties and the maintenance of order and efficiency, is
solely the responsibility of the City. Other rights and responsibilities
belonging to the City are hereby recognized, prominent among which, but by no
means wholly inclusive are: work to be performed within the unit. . . . methods
... except as they may otherwise be limited in this Agreement.
III.
Position of the Parties
The
Association contends that the primary duties of firefighters fall into three
categories: Fire Suppression, Fire Inspection and Emergency Response. While
EMTs are trained to administer injections in the course of providing emergency
medical attention, they have not previously administered preventative care
vaccinations. They have been trained on the former, but not officially on the
latter.
The
Association cites City of Orange, Texas, 103 LA (BNA) 1121 (Nicholas,
Jr., 1994), in which the CBA contained both Maintenance of Standards and
Management Rights provisions quite similar to the ones in the immediate case.
The grievance protested the City’s assignment of fire fighters to trim trees
along rights-of-way in the municipality to permit the unimpeded passage of new
fire trucks that required higher clearance. Arbitrator Nicholas held that the
new assignment was a change in working conditions in violation of the
Maintenance of Standards provision.3
Here, the
City claims that administering flu shots is essentially the same as
administering injections during an emergency response. EMTs were trained to
administer such shots. Furthermore, in preparing for the inoculation of first
responders in 2001, an EMT sergeant was instructed how to give the shots and
the proper dosage. He passed this information on to his EMT colleagues.
The City
also claims that the Association’s preventive care argument is without merit,
because firefighters with both basic and advanced life support training have
administered blood pressure tests to senior citizens; in the ‘90s at senior
citizen facilities and more recently to those who come to a station. In
addition, EMTs were assigned to an arena where “Special Olympic” events were
taking place.4 Finally, the City contends that the Maintenance of Conditions
provision does not apply, because the program was not in place on the effective
date of the CBA.
Based upon a
careful consideration of the entire record 5 and the post-hearing briefs, I
issue this Opinion and Award. The Employer argues that the Management Rights
provision gives it the right and authority to determine the “work to be
performed within the unit.” I have no quarrel that the quoted language gives
management considerable latitude in the assignment of work. However, its rights
on this score are not unfettered. The phraseology cannot be taken literally.
For example, absent an extreme emergency, it is doubtful that the City would
claim that it has the right to assign EMTs to perform the duties customarily
handled by other of its employees, such as law enforcement officers, DPW
workers, clerical employees, or personnel in its department of parks and
recreations.
Where, as here, jobs in the Fire Service are
classified by titles, albeit without job descriptions, management has
considerable leeway in making work assignments. The assignments, however, must
be of the same general type as the regular duties of the job, or reasonably
related thereto. The assignment that is the subject of the instant case does
not satisfy this criteria. Thus I find that the Management Rights provision
does not trump the Maintenance of Conditions clause. The work assigned is not
conceptually within the same class or category as the assignments ordinarily
given and performed by EMTs.
The administration of flu vaccine is strictly for
preventive care. A person elects to have this type of shot. The primary work of
a fire fighter operating as an EMT is to provide emergency care for individuals
who are injured, sick or ill. Their work is not intended to replace that of
ordinary care givers such as physicians, doctors’ assistants and nurses who
would be the persons ordinarily delivering this level of care to the general
public.
In 2001 and
2002, the vaccine was made available to the City without cost. Although limited
to first responders in 2001, the offer was extended to all City employees and
elected officials in 2002. Seventy individuals requested inoculation last year.
Were the City’s position to be adopted, in 2003 and subsequent years, it could
expand the universe of those eligible for flu shots, perhaps exponentially.
This might include all residents in the City, non-resident business owners,
City vendors (including arbitrators), etc. If preventive care inoculations are permitted, nothing
would prevent the City from expanding coverage to include DTP inoculations or
other vaccinations that are likely to be developed.
I do not mean to suggest that EMTs may never be
called upon to administer preventive care inoculations. For example, were there
to be the threat of a possible toxic attack for which an anti-toxin existed,
the City might legitimately require EMTs to provide inoculations. While preventative to be sure, the
situation involves an emergency response. And is therefore the type of
assignment falling within the general duties and responsibilities of these unit
employees.
The City
next argues that the Maintenance of Conditions clause does not apply because
the program was not in place on the effective date of the CBA. While the
program did not become operational until 2000, the terms and conditions of the
program were negotiated in a Letter of Understanding in April 1997, and were
incorporated into the CBA effective July 1, 1997. I conclude that the EMT
program was a condition covered by the CBA.6
The fact that fire fighters administered blood
pressure tests and were on standby at certain events does not change the
outcome in this case. Insofar as the standby operations were concerned, it
appears that EMTs were there in the event emergency care services were
required. The blood pressure testing does not establish a past practice to
support a finding that every type of preventive care is appropriate for
assignment.
The City
of Orange case is instructive. In that case, Arbitrator Nicholas
wrote:
Article VI
of the Agreement mandates that the ‘working conditions’ enjoyed by the
bargaining unit will remain unchanged for the duration of the Agreement.
Despite the City’s attempt to characterize a work assignment as something other
than a ‘working condition’, I find that assignment of work is precisely the
kind of ‘working condition’ to which Article VI applies. If assignment of the
day-to-day activities of the bargaining unit, i.e., their work assignments, are
not contained within the phrase ‘working conditions’, the Arbitrator is left
uncertain as to what is meant of that phrase save the work environment and the
wages paid to employees in the bargaining unit. However, these latter factors
are included within the ‘economic benefits and privileges’ language of Article
VI. Thus, I conclude that ‘working conditions’ must, of necessity, include the
nature of the work being performed by the employees and the nature of the work
which they are asked to perform.
I find that
the work of inoculating employees and elected officials of the City solely for
the purpose of preventative care and without there being an emergency
situation, extends far beyond the recognized duties of fire fighter/EMTs.
Award
For the reasons set forth in the Opinion, the
grievance is sustained. Absent an agreement by the Association and the City,
the latter may not assign to EMTs the task of performing preventive care
inoculations.
Notes
1. The CBA
is effective for the period July 1, 1997 through June 30, 2002 and by its terms
continues until a successor agreement is reached.
2. The Nov.
13, 2002 memorandum from the Chief to All Paramedic Personnel stated that flu
shots were to be given at designated times from Nov. 18 through the 27th. Ten
officers/fire fighters availed themselves of the shots in 2002.
3. The Association
also cites: Boardman Township, 115 LA (BNA) 1021 (Lalka, 2001); City
of Springfield, 97 LA (BNA) 116 (O’Grady, 1991).
4. One other
basis for its position is equitable in nature. In the 1997-2002 CBA the
Association secured a new benefit: The City is obligated to assume the cost for
an annual influenza vaccination for bargaining unit employees and the cost of a
DTP vaccination every ten years, or as directed by a physician. Having EMTs
perform this task is convenient and efficient
5. Opening
statements, testimony of witnesses and the eight exhibits (including those to
which the Association objected).
6. It is
unknown when the CBA was signed. The Maintenance of Conditions clause governs
those conditions in place on the execution date of the CBA. This being a later
date than the effective date, the terms and conditions for employees in the
affected classification were established.