Holding: Management
did not violate the bargaining agreement when it declined to pay overtime to a
firefighter who took a medical exam during his off-duty hours, where the
agreement lists nine categories of events for which employees shall receive
overtime pay, and medical exams are not among those.
|
In re
City of Cincinnati
and
Local 48, IAFF
119 LA (BNA) 421
AAA Case No. 52-390-00601-03
January 22, 2004
Lawrence I.
Donnelly, Arbitrator*
Background
Mark
Brickweg is a Lieutenant in the Fire Division of the City of Cincinnati, Ohio
(which City is hereafter referred to as the Employer in this case). He has been
employed some eighteen years in the Fire Division; he was worked as a
Lieutenant for some six years. He is a member of the Cincinnati Firefighters
Union, Local 48 of the International Association of Fire Fighters, AFL-CIO
(hereafter referred to as the Union). This Union serves as exclusive bargaining
agent for Lt. Brickweg and the other Cincinnati fire fighters. The two Parties
had renegotiated a labor-management agreement, effective June 10, 2001 and due
to expire on June 7, 2003. This Agreement covered wages, hours, and other terms
and conditions of employment for the referenced time period for members of the
firefighter bargaining unit. In particular, the Agreement covers the case at
hand.
In April 2003, Lt. Brickweg was assigned to Engine
Co. 17 and worked tours of twenty-four hours on and forty-eight hours off. He
was assigned to duty on Monday, April 7, 2003. However, he called in sick for
that tour with flu-like symptoms. There is no contest that he followed the proper Fire Department
procedures in connection with excusing this absence in line with the Sick With
Pay provisions (i.e., SWP). Then, again on April 10, 2003, he called in sick
for this tour as stipulated in the Department regulations. In the meantime he
visited his personal physician on Tuesday, April 8; he received approval to
return to work on April 13 from this physician. When he contacted the Employee Health
Service (i.e. EHS) later on April 10th to return to duty on April 13th, he was
instructed to go to EHS on April 11th for an exam. He did this at 8:45 am; Dr.
William Kelley, M.D. certified Lt. Brickweg’s approval to return to work. He
reported as scheduled on his tour for April 13, 2003. Subsequently, Lt. Brickweg submitted a request
for overtime/comp time because “While off duty, ordered to report to Employee
Health Service to be placed back on track by City Physician”. This request for
overtime/comp time was denied on April 22, 2003. Lt. Brickweg then grieved this
denial on April 30, 2003.
The Parties
stipulate that this Grievance properly passed through the Grievance Procedure
of the Parties within their Agreement without resolution. Further, they agree
that it has properly passed to arbitration before this Arbitrator. In Article
VI, Step Four, the Parties provide for the Arbitrator’s authority as
follows:
The
arbitrator shall have no authority to amend, modify, nullify, ignore, add to,
or subtract from the specific provision of this Agreement. He shall only
consider and make a decision with respect to the specific issue submitted to
him by the parties, and shall have no authority to make a decision on any other
issue not so submitted. To the extent that the arbitrator’s decision is in
accordance with the provisions of this Section, it shall be final and binding
on all parties...
Issue and
Remedy
The Parties
acknowledged at the hearing that they did not have a joint written statement of
issue and remedy. Accordingly, the Arbitrator suggested that they come to some
statement of these at the hearing. As he noted above, their Agreement provides
that the Arbitrator “shall only consider and make a decision with respect to
the specific issue submitted to him by the parties, and shall have no authority
to make a decision on any other issue not so submitted.” With the Grievance as
the basis for a statement of Issue and Remedy, the Parties did come to an
agreement of these. The Issue may be stated as follows:
Did the city violate the agreement for failure to pay overtime on April
11, 2003 in connection with the visit by the grievant to the medical examiner
on that date?
As remedy,
the Union seeks the payment for four hours of overtime or comp time according
to Article XI, Section 2, B in consideration of this visit by Lt. Brickweg, the
Grievant. The Employer seeks that the Grievance be denied and dismissed.
Relevant
Clauses
During the
proceedings, two separate segments of the Parties’ Agreement stood out as
central to the Parties’ cases. These are:
Article XI Overtime and compensatory time
Section 2. Overtime and Compensatory Time for Official Off-time
Duties.
A. All members of the Cincinnati Fire Division shall receive
overtime or compensatory time for official duties performed on their scheduled
off-time, vacation or holidays when they:
* * *
iv. Are required to attend any Fire Division meeting, seminar, or
training session.
Note: this is one of a list of nine situations; the Union adduces
this situation as support for the overtime/comp time claim.
Article XXVIII Sick leave with pay
Section 4. Members reporting a SWP incident are not required to
report such an incident to EHS. Furthermore, members returning from SWP are not
required to report to or be evaluated by EHS. Members returning from a serious
injury/illness may be required by the Fire Division to be evaluated by EHS
prior to return to duty.
Positions of
the Parties
The Parties
represented their positions in the case through their brief opening statements
at the hearing. They then elaborated on these during the hearing. Finally, they
expanded on these with their written post-hearing Briefs.
The positions of each Party center around two sets
of arguments; namely, the application of the Agreement to the situation of Lt.
Brickweg and also the applicability of the Fair Labor Standard Act to the case
of Lt. Brickweg. The Union
points out that the Grievant was required to report to EHS on April 11, 2003,
for a medical meeting. He would have been subject to discipline had he failed
to do this before returning to work on his tour of April 13, 2003. This medical
meeting was outside of his regular hours on a tour of duty; so, under Article
XI, the Grievant should have received overtime or compensatory time. The
Employer disputes this. Nothing in the Agreement requires payment for a medical
exam before an employee on SWP may return to his regular tour. Article XXVIII
requires such an exam. But, the Parties have not listed this activity among the
explicit list of nine categories in Article XI which warrant overtime pay. The
Arbitrator has no authority to add this as a new category to Article XI.
On the
second set of arguments, the Union claims that determinations of the Department
of Labor as well as of federal Courts would cover the duty to report for a
medical meeting during non-scheduled hours as hours worked under FLSA. So, Lt.
Brickweg should have been compensated with either overtime or comp time under
FLSA. The Employer contends that the Arbitrator has no authority nor
jurisdiction to render such a decision under the FLSA either under his
authority in the Agreement nor under the statement of the Grievance. The
Parties have agreed to the Issue as being a dispute under the Agreement and not
under FLSA. In such cases, Arbitrators are not to extend their opinion to a
determination under the FLSA.
Analysis and
Opinion
The
Arbitrator begins his analysis with materials about which the Parties agree. As
stated in their Briefs, the Parties concur that there really are no differences
about the factual background of Lt. Brickweg’s illness. The Employer does not
claim that Lt. Brickweg improperly handled requirements during his illness.
Upon Lt. Brickweg’s desire to return to duty, the Employer does not claim that
Lt. Brickweg failed to follow proper procedures. He called in on April 10 to
EHS about his return to duty.
He made
arrangements with Vickie (last name unknown) to report to EHS the next day at
8:45 a.m. for an examination with Dr. Kelley. Although Lt. Brickweg expressed
his opinion that such an examination was not needed because he had already
received medical clearance from his own physician, he complied and visited Dr.
Kelly for clearance. The Parties agree that such a visit was needed and
complied with Article XXVIII, Section 4, sentence 3. In fact the Parties’
dispute did not surface until after Lt. Brickweg returned to his normally
scheduled tour of duty on Sunday, April 13, 2003. On April 15, 2003, Lt.
Brickweg filed for “Overtime/Comp. Time for reporting to E.H.S. on April 11,
2003”. The Employer disputed the validity of this claim and accordingly denied
the request for overtime pay on April 22, 2003. With this, Lt. Brickweg
grieved.
In
particular, he claimed that Article XI, Section 2, A was violated by the
Employer. To quote the language of the Agreement, he judged that he should “receive
overtime or compensatory time for official duties performed on (his) scheduled
off-time ...when (he) ... was required to attend any Fire Division meeting...”in
the form of a mandatory EHS meeting under Article XXVIII, Section 4, sentence
3. Under the application of Article XXVIII, Section 4, he was “required by the
Fire Division to be evaluated by EHS prior to return to duty.”
As the
Parties stipulated at the hearing, Lt. Brickweg’s Grievance properly passed
through the Parties’ Grievance Procedure in Article VI of the Agreement to be
heard by this Arbitrator. As the Employer noted in its Brief, the Parties
specify within Article VI that a “grievance is an allegation by an employee
covered by this Agreement or the Union that a term or terms of this Agreement
have been violated or misrepresented by the City of Cincinnati, the Cincinnati
Fire Division or their respective agents or officers.” It was pointed out at
the hearing that EHS is not a component of the Fire Division. Still, it is
clear and not a matter of dispute that Vickie was acting as an agent for the
Fire Division and arranging the Grievant’s appointment with Dr. Kelley.
Further, the Parties clearly provide in Article VI that the Arbitrator “shall
have no authority to amend, modify, nullify, ignore, add to, or abstract from
the specific provisions of the Agreement.”
Further, in
the same paragraph the Parties direct that the Arbitrator “shall only consider
and make a decision with respect to the specific issue submitted to him by the
parties, and shall have no authority to make a decision on any other issue not
so submitted.” At the hearing the Parties did agree upon the issue before the
Arbitrator (as noted above in the segment on issue and remedy).
To
emphasize, the Parties empower the Arbitrator to rule whether or not the City
violated the Agreement for failure to pay overtime on April 11, 2003 in
connection with Lt. Brickweg’s visit to the Medical Examiner at EHS on that
date. This coincides with the Grievant’s claims on his Grievance. On the
Grievance, the Union and the Grievant claim that “The member is to be made
whole by payment of overtime or compensatory time in accordance with Article
XI, Section 2 (A) (iv) and (B) for official duties performed on scheduled
off-time.”
The
Arbitrator agrees with the Employer that he has no authority to make a specific
determination under the Fair Labor Standards Act. His authority flows from the
Agreement between both Parties and not from the Fair Labor Standards Act. The
Parties could have conferred to the Arbitrator the authority to make a judgment
in terms of provisions of the FLSA, where the applicability of the statute is
not clear (as in this case); but, they did not. Rather, they have established
their agreements for implementing provisions of FLSA about matters of wages,
hours, and conditions within their own labor-management Agreement in Article
XI, Section 2, A.
They
explicitly make numerous applications to situations which govern
overtime/compensatory time “for official duties performed on their scheduled
off-time.” Hence, the Arbitrator judges that he does not have the authority to
add a specific guideline or definition under FLSA to cover medical examinations
during non-working time for members who return from two or more tours on SWP.
Instead, the Arbitrator judges that his authority involves the particular
application of Article XI, (2), (A) and Article XXVIII, (4) to the facts of Lt.
Brickweg’s case. Both Parties do address this matter.
First off, both Parties address the character of
the medical exam on April 11, 2003. Lt. Brickweg testified that he judged this
was an official duty of his because he would be subject to discipline if he
failed to attend this examination; the Union supports this through the
testimony of its Vice-President and the testimony of Capt. Uhlhorn. Ass’t Chief
Domisi agreed that this appointment could be considered official. He further
testified that the Parties in the 2001 negotiations added to Article XXVIII,
Section 4 the last sentence, which reads “Members returning from a serious
injury/illness may be required by the Fire Division to be evaluated by EHS
prior to return to duty.”
He indicated
that the meaning of this sentence became a matter of discussion between the
Parties soon after it was adopted in 2001. The Parties, however, did agree that
“serious” would involve an injury/illness of two or more tours of duty. Neither
Party entered any testimony or evidence about any prior cases under this
sentence in the twenty or so previous months during the 2001-2003 Agreement.
So, as far as practice under Joint Exhibit 1, this case can be considered a
pioneer case. Both Parties do agree that the Grievant was properly required “to
be evaluated by EHS prior to return to duty.” The Agreement does not specify
whether this examination should occur on the employee’s time or on the Employer’s
time.
But, if the required evaluation occurs during
off-duty hours, should the employee receive overtime/compensatory time payment
according to Article XI, Section 2A and B, as the Union and Lt. Brickweg
contend? As the
Employer notes, the Parties have covered in Article XI, Section 2, A nine
categories wherein an employee “shall receive overtime or compensatory time for
official duties performed on their scheduled off-time...”There is no indication
that this is simply an illustrative list. Nor is the requirement to have a
medical examination by EHS before a return to duty from SWP under Article
XXVIII, Section 4 listed.
The Parties
could have added this in 2001 because they did deal with a modification to the SWP
provisions in 2001; but, they did not. Lt. Brickweg stated that the fire
fighters did not have to go to EHS under such circumstances in the past. In
fact, he got a medical certification for return to duty from his own physician,
which he judged to be adequate under common practice. Parenthetically, the
Arbitrator notes that the Grievant did not claim that this medical examination
by his physician should have been covered by overtime. On the issue, the
Employer notes without dispute from the Union that certain other physical
examinations are required by EHS without overtime/comp time. So, the
arrangement for an examination by EHS under Article XXVIII is not novel; and it
does not automatically require overtime/comp time.
On his Grievance and thereafter Lt. Brickweg
claims that the required examination by EHS is covered under the fourth
category; namely, “Are required to attend any Fire Division meeting, seminar,
or training session.” The Grievant does not claim that the examination was a
seminar or training session. Rather, on his Grievance, he claims that he “should
be compensated with four (4) hours of overtime for attendance at required
meeting on scheduled off time.”
Neither the
Union nor the Grievant presented any evidence of any prior application of
Article XI, Section 2, A, iv, wherein the Parties agree that a medical
examination is a “Fire Division meeting.” Nor did they provide any prior
instance wherein the Parties understood that a required medical examination is “a
Fire Division meeting.” As the Arbitrator reads his authority from the Parties
under their Agreement, he has no authority to interpret their Agreement in a
way which would “amend, nullify, ignore, add to, or subtract from the specific
provision of this Agreement.” Assistant Chief Domisi testified on redirect that
before the matter was raised by the Grievant a meeting with EHS was not
considered as a meeting under Article XI, Section 2, A, iv. In the Arbitrator’s
judgment, for him to adopt the interpretation advanced by the Grievant would
amend or modify the specific provision of a “Fire Division meeting.”
A medical examination to attest to the ability of
a fire fighter to return to duty to be sure, involves a type of meeting between
a person as patient and a person as medical examiner like a physician. Such a
meeting between a fire fighter and an EHS physician, even if required, could
hardly be construed as a “Fire Division meeting.” If the Parties would have
wished such a meeting to be covered under the categories in Article XI, Section
2, A, it makes more sense that they would have explicitly added this as a
category when they modified Article XXVIII, Section 4 during their previous
negotiations. As a final
note, the Arbitrator notices in their now current Agreement that they did
rework the third sentence in Article XXVIII, Section 4 and have effectively
dropped the requirement from the 2001 Agreement.
But, as the
Employer noted at the hearing, this case is governed by Joint Exhibit 1, not by
Union Exhibit 1. Under the Agreement in force at the time of the dispute in
April, 2003, the Parties do explicitly require an examination by EHS for a
return from a serious injury/illness (interpreted as two or more tours of duty)
because of a modification agreed to in 2001. However, they do not cover this in
the explicit list of categories for overtime or compensatory time for official
duties performed on their scheduled off-time during a valid sick leave. Because
the Parties have explicitly dealt with issues under FLSA in their Agreement and
because the Arbitrator’s authority flows from this same Agreement, the
Arbitrator has reached his decision under terms of Article XI and Article
XXVIII of their Agreement.
Award
1. The city did not violate the agreement for
failure to pay overtime on April 11, 2003 in connection with the visit by the
grievant to the medical examiner on that date.
2. Grievance
is denied and dismissed.
* Selected by parties through procedures of the Federal Mediation
and Conciliation Service