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City of Urbana
and
Urbana Firefighters Assn.
I.A.F.F. Local 1823
119 LA (BNA) 1078
FMCS Case No. 041202/01725/6
February 29, 2004
Louis V. Imundo Jr.,
Arbitrator, selected by parties through procedures of the Federal Mediation and
Conciliation Service
Nature of the
Case
This case pertains to a dispute regarding the
interpretation and application of language in the Agreement. The event that gave
rise to the instant grievance was the Chief’s decision to transfer a less
senior employee than the Grievant to fill a vacancy in another Unit.
It was the Union’s position that seniority is significant
in many of the provisions in the Agreement. It was the Union’s position that
historically the senior employee who sought a transfer to a shift where a
vacancy existed always got the transfer, and Mr. Massie’s situation was the
first where a junior employee was given the transfer over a senior employee when
both individuals wanted to be transferred to the vacant position.
It was the Union’s position that the Chief’s unilateral
decision contravened well-established past practice, and was harmful to the
Grievant because he lost out on many more opportunities to work overtime,
schedule time off, and get additional experience as an acting Captain. It was
the Union’s position that the Chief’s decision was arbitrary and that there was
no observable benefit from it to the Division, the City, or the community.
It was Management’s position that there is nothing in the
Agreement that delimits the Chief’s authority to make decisions on transfers
from shifts to fill vacancies.
It was Management’s position that past practice does not support the Union’s
position, and that the Chief’s decisions have always been based on what he
determines to be in the best interests of the Fire Division. It was
Management’s position that the Chief harbored no animus toward the
Grievant.
Applicable
Articles and Sections of the Agreement
Article 3-Management Rights
Except as specifically limited herein, the Employer shall
have the exclusive right to manage the operations, control the premises, direct
the working forces, and maintain efficiency of operations. Specifically, the
Employer’s exclusive management rights include, but are not limited to, the
sole right to hire, discipline and discharge for just causes, lay off, and
promote; to promulgate and enforce reasonable employment rules and regulations;
to reorganize, discontinue or enlarge any department or division; to transfer
employees, including the assignment and allocation of work methods; to
determine the size and duties of the work force, the number of shifts required,
and work schedules; to establish modify, consolidate or abolish jobs (or
classifications); and to determine staffing patterns, including but not limited
to, assignment of employees, duties to be performed, qualification required and
areas worked, subject to the restrictions and regulation governing exercise of
these rights as are expressly provide herein and as permitted by law.
* * *
Article 27-Grievance Procedure (in part)
The expenses of the arbitrator shall be borne equally by
the Employer and the Union, unless such are paid by the State of Ohio or any
other party.
The findings and determination of the arbitrator shall be
binding upon all parties concerned for grievances brought before it in the
above described manner and for grievances or disputes falling within the scope
of the provision.
The Parties
agreed to a joint stipulation of the Issues to be decided by the
Arbitrator.
The Issues
are:
• Did Management violate the Agreement when
they denied the Grievant’s request for transfer to a Unit?
• If Management violated the Agreement what
is the appropriate remedy?
The following has
been taken from the Arbitrator’s notes, recording of the Hearing, testimony of
witnesses, and documentary evidence.
In his opening
statement Mr. Dale made the following points to support the Union’s
position:
• The
Chief’s decision did not result in any observable benefit for the Fire
Division, the community, or the City.
• The Chief’s decision caused the Grievant to suffer financial harm.
• The Chief unilaterally decided to transfer
someone from C Unit to A Unit. Two Firefighters requested to be transferred.
The chief picked the junior Firefighter. That is the root of the dispute.
• The Agreement clearly outlines the
significance of seniority for overtime opportunities and scheduling
vacation.
• The Grievant’s opportunities for overtime and scheduling of vacation
time off have been so grievously affected that fairness dictates that some
overwhelming organizational existed that would have necessitated that Mr.
Massie not be given the transfer he sought.
• The Chief has not, or cannot offer any explanation for his arbitrary
exercising of Management’s rights.
• In the five months
since he was denied the transfer Mr. Massie has been offered overtime 46 times
instead of the 81 times such would have been offered to him had he been
transferred. One hundred forty seven hours of overtime were offered instead of
355 hours. This amounted to over $7,000.00 in lost overtime opportunities.
• Minimum staffing of 12 hours or more were offered to Mr. Massie zero
times. If he had been transferred he would have been offered such six times for
a total of 108 hours of overtime. This amounted to another $3,700.00 of
potential overtime that he lost.
• Mr. Massie has zero hours as acting
Captain. If he had been transferred he would have had 326 hours as acting
Captain. The monetary benefit for him would have amounted to $262.00. However, he
lost 326 hours of supervisory experience.
• On C Unit Mr. Massie had to get approval
from two senior personnel to schedule time off. As the senior Firefighter in A
Unit Mr. Massie would have had carte blanc on getting time off.
• In his August 20th memo denying the
transfer the Chief gave as a reason that presently A Unit runs very efficiently
whether Captain Evans is there or not. He further wrote that Mr. Massie would
do an excellent job as an acting Captain.
• At the September 17th grievance meeting the
Chief offered as the compelling reason not to move Mr. Massie that he was the C
Unit Fire Safety Inspector and he needed to stay on C Unit because A Unit had a
Fire Safety Inspector. However, subsequent to that meeting he moved Mr. Massie
to B Unit, which has a Fire Safety Inspector, assigned to it.
In his opening
statement Mr. Blaugrund made the following points to support Management’s
position:
• The crux of the dispute is whether or not Management has the right to
make transfers/assignments.
• Management has historically had the unfettered right to transfer
employees.
• The Chief harbors no animus toward the
Grievant.
• Mr. Blaugrund submitted a comprehensive
written statement of Management’s position into the record.
Mr. Dale called himself as the Union’s first
witness. Mr. Dale testified about the various documents he reviewed in arriving
at the determination of how much potential income the Grievant lost as a result
of being denied the transfer to C Unit. Mr. Dale submitted into the record,
copies of the compilations he prepared.
Mr. Blaugrund cross-examined. Mr. Blaugrund
pointed out to Mr. Dale that offered overtime is not the same as worked
overtime. The witness concurred. Mr. Blaugrund asserted that it is unknown how
many hours of offered overtime Mr. Massie would have worked. The witness
concurred, but made the point that in the relief requested Mr. Massie is
seeking payment for the percentage of hours that he would have worked.
Mr. Dale called Mr. Christopher Massie as the
Union’s second witness. Mr. Massie testified that he was assigned to the A
Unit. Mr. Massie testified that with respect to seniority there was a Captain
and two Firefighters above him. Mr. Massie said he was in the fourth position
with respect to minimum staffing, recall, overtime, vacation, and compensatory
time. The Grievant testified that if he had been transferred to A Unit (shift)
he would have been the senior Firefighter second only to the Captain. Mr.
Massie testified that he was involuntarily re-assigned to the B Unit.
Mr. Massie testified that the only reason he
was given for not being transferred to A Unit was because he was a shift
Inspector on C shift. Mr. Massie testified about why he worked only a small
percentage of the overtime that had been offered to him during the time he was
assigned to C Unit.
Mr. Blaugrund cross-examined and Mr. Dale
redirected a number of times. The witness’s testimony was not significant with
respect to the disposition of the matter at issue.
The Arbitrator questioned Mr. Massie. Mr.
Massie testified that in his 15 years of experience the senior Firefighter on
the shift who asked to be transferred was the person who was transferred. The
Arbitrator asked Mr. Massie what provision(s) of the Agreement does he believe
that the Chief violated in awarding the transfer to a less senior Firefighter
than himself? Mr. Massie’s answer was that seniority is controlling in many
sections of the Agreement. The
witness said he realizes that seniority is not controlling in transfer
situations as per the Agreement, but that past practice has always been to
recognize seniority. Mr. Massie further testified that he believes that
the Chief’s not transferring him to A Unit was personal.
Mr. Massie testified that the past practice in the
Division has been to ask Firefighters by seniority if they wanted to transfer
and if no one wanted to be transferred the junior Firefighter was forced to
transfer. Mr. Massie testified that in his 15 years of service no senior
Firefighter who wanted to transfer to be the senior Firefighter on another
shift was denied the transfer.
The Arbitrator asked the Grievant what he meant when he said he thought that
the Chief’s denying his request was personal? The Grievant’s answer was vague
and non-specific. The Grievant said there was no animus between the Chief and
him before the event that gave rise to the instant grievance occurred.
Mr. Blaugrund
recross-examined. Mr. Massie reiterated that he believed that the Chief’s
decision was personal because he was subsequently involuntarily transferred to
B shift. Mr. Blaugrund pointed out to Mr. Massie that a few years ago Mr. Lyons
was in a similar situation and his request to be transferred was denied. The
witness said he knew about this situation.
Mr. Dale
redirected. Mr. Massie said that he does not have first hand knowledge about
all transfers within the Fire Division. Mr. Dale said to the witness that in
Mr. Lyons’ situation no transfer occurred. The witness agreed.
The Arbitrator
requestioned Mr. Massie. Mr. Massie testified that in the 15 years he has been
with the Fire Division whenever a vacancy existed on a shift the manner in
which it has been filled has been to go to the shift where the transfer is to
occur from and by seniority ask Firefighters who wants to be transferred. If no
one has asked to be transferred, or if everyone declines the offer of transfer,
the least senior Firefighter is transferred.
Mr. Blaugrund
recross-examined. Mr. Blaugrund, noting Mr. Massie’s answer to the Arbitrator’s
question, asked him if what he claims is the practice is correct, something
Management disagrees with, where in the Agreement does it require that
seniority controls transfers? Mr. Massie answered: “The contract, as we stated
at the beginning is silent on some issues regarding that, and then eludes to
seniority in other instances.”
The Union
rested.
Mr. Blaugrund
called Mr. James McIntosh as Management’s only witness. Chief McIntosh
testified that he has been employed at the Fire Division since 1974 and has
been the Chief since 1991. Chief McIntosh testified that before he became the
Chief the practice with respect to transferring employees was that the former
Chief transferred employees whenever he got mad at them. The witness testified
that his practice with respect to transferring employees is to consult with the
shift Captains before deciding whom to transfer and that seniority has nothing
to do with the decision. Mr. Blaugrund asked the witness what factors he takes
into consideration in making shift transfer decision? Mr. McIntosh answered:
“Basically who gets along with who, who can do what the best. We got
specialties that are spread around.” Mr. Massie said there was nothing personal
about his decision not to transfer Mr. Massie, and that they have always gotten
along well.
Mr. Blaugrund asked Chief McIntosh if there is anything
in the Agreement that limits his authority in making assignments or transfers
based on his judgment? The witness answered no. Mr. Blaugrund asked the witness
if the Management’s Rights clause gives Management the authority to make
transfers and assignments? The witness answered yes. Mr. Blaugrund asked the
witness if there is anything in the Agreement, which says that seniority must
be used in making transfers and assignments? The witness answered no.
Mr. Blaugrund
directed Chief McIntosh to the document titled: “Duties Of The Fire Chief”. Mr.
Blaugrund asked the witness if there is anything in the document that addresses
the ability to assign or transfer employees? The witness answered yes, and
referred to Article 7- “The Chief of the department shall have exclusive
control of the assigning and transferring of all officers, firefighters, and
employees in the department.” The witness said that he has done such without
regard for seniority for tenure as the Chief. The witness then said that did
make an exception to this practice in Mr. Massie’s case for the following
reason: “A Unit, the shift he wanted to go to was running exceptionally well,
fantastic. Chris, with his seniority, would become senior Firefighter on that
Unit. And I didn’t want to take that chance of him not working out as well as
the shift was now. In other words I’d be taking a chance I didn’t want to
take.” Mr. Blaugrund asked
the witness if, in Mr. Massie’s case seniority was something of a reverse
factor? The witness answered yes. Mr. Blaugrund asked Chief McIntosh if the
manner in which he decided Mr. Massie’s request was consistent with the way he
has done it over the years in terms of looking at all of the various factors to
determine was the best mix of Firefighters would be on a particular shift? The
witness answered yes.
Mr. Dale
cross-examined. Mr. Dale asked Chief McIntosh if there have been other
occasions where, except for Mr. Massie, he had not always transferred the
senior Firefighter who had asked to be transferred to fill a vacancy? The
witness answered yes, and named Mr. Lyons. Mr. Dale asked the witness who was
transferred instead of Mr. Lyons? The witness answered that no one was
transferred.
The following
verbal exchange occurred between Mr. Dale and Chief McIntosh. Mr. Dale: “Is
there any other situation where someone was transferred instead of the senior
person who wanted to transfer?” Chief McIntosh answered: “Sorry, John I
couldn’t answer that.” Mr. Dale: “You can’t recall.” Chief Massie: “1 can’t
recall.” Mr. Dale: “So you can’t recall any event where you transferred the
junior person over the senior person.” Chief McIntosh: “There, as you know
there have not been many people who have asked for transfers. And hardly ever
do two people recall of such an instance.” Mr. Dale: “Okay, so that does make
this somewhat different. Here you transferred a junior over a senior person
which, to your recollection, has not occurred in the past.” Chief McIntosh: “1
can’t remember running into this situation before if that’s what you’re
asking.”
The Arbitrator
questioned Chief McIntosh. Chief McIntosh testified that there have been other
occasions when someone other than the senior Firefighter was transferred to
fill a vacancy. The Arbitrator directed Chief McIntosh to his August 20, 2003
letter, and after pointing out to him that apparent inconsistency with his
testimony and what is contained in the letter asked him what he meant when he
wrote in the second paragraph? The witness reiterated his prior testimony that
the Unit was running very smoothly and he did not want someone else, be it Mr.
Massie or someone else, to serve as the acting Captain when Captain Evans was
not there. The Arbitrator asked the witness if he always relies on the same
factors when considering people for transfers to fill vacancies? The witness’s
answer was essentially that he does not.
Mr. Blaugrund
redirected. The witness testified that Mr. Keller who was on A shift serves as
the acting Captain whenever Captain Evans is not there. Mr. Blaugrund if the
guiding principle he follows in making transfer decision is what is in the best
interests of the Department? The witness answered yes.
Mr. Dale
recross-examined. The witness’s testimony did not add to, or subtract from what
was already in the record.
Management
rested.
The Parties
rested and presented oral closing arguments.
In his closing argument
Mr. Dale made the following points to show that the Union had proved their
case:
• The Chief is very firm in his opinion that
Mr. Massie would do well if he were transferred to A Unit. However, he
contradicted himself when he said that he couldn’t take the chance of upsetting
the apple cart, despite the fact that Mr. Massie has no history of upsetting
apple carts.
• The Chief claims that seniority is not a
factor in transfers to fill vacancies. However, in this instance Mr. Massie’s
seniority was considered, and it worked against him.
• The Chief cannot recall ever transferring a junior Firefighter over a
senior Firefighter to fill a vacancy. However, he did so in this case.
• Mr. Massie was treated unfairly. Mr. Massie
is a good employee with an excellent work record.
In his closing argument Mr. Blaugrund made
the following points to show that the Union had failed to prove their
case:
• To quote Mr. Spock from Star Trek: “The
needs of the many outweigh the needs of the few.” The Chief got a
recommendation from the Captain of A Unit and this was one of the factors that
influenced his decision. The Chief honored the request.
• The Agreement was not violated. There is no language that restricts the
Chief to making transfers based solely on seniority.
• There is no past practice to support the
Union’s position. The situation at issue was unique.
• The Chief had the proper authority to do
what he did.
• There was no personal or anti-union
animus.
• There was nothing arbitrary or capricious
about the decision.
• The instant grievance lacks merit and
should be denied in its entirety.
Opinion
Issue No.
1
Did management
violate the agreement when they denied the grievant’s request for transfers to
a unit?
Article 3 of the
Agreement provides Management with certain rights and these rights are
delimited by other provisions of the Agreement. The Arbitrator finds that the
Agreement is silent with respect to seniority being the controlling factor in
requested transfers to fill vacancies. This finding would appear to render the
instant grievance moot. However, this is the matter of past practice to
consider, and whether the Chief’s decision was arbitrary and/or
capricious.
It is well
established that under certain circumstances custom and past practice may rise
to the level of importance that it is deemed to be shadow language in a parties
negotiated labor agreement. These customs and past practices would have to be
viewed as being part of the conditions of employment in order to warrant
consideration as being a part of the parties’ whole agreement. It is also a
well-established tenet of labor-management relations that in order for a past
practice to be binding on the parties it must satisfy certain requirements.
They are:
• It must be of personal benefit to a
significant number of employees.
• It must be unequivocal, i.e., clear,
unambiguous.
• It must be well recognized and totally
accepted as evidenced by it having been consistently applied or followed over a
lengthy period of time.
These requirements are not necessarily all
inclusive, nor are they precise. Whenever it is argued that a past practice is
an implied part of the parties’ agreement arbitrators must not only consider
the practice on its face they must also consider the environment within which
it exists or existed.
In the Arbitrator’s opinion seniority rights
are among the most, and arguably the most important rights to bargaining unit
employees. These cherished rights are often found to be controlling, or at a
minimum significantly influencing in the treatment of employees by employees.
The arguments favoring and disfavoring the application of employee seniority to
the many facets of the employment relationship are endless. Unions favor the
application of seniority to most matters affecting employees because it
severely limits, or even prohibits managements from exercising discretionary
judgment. Managements generally disfavor the application of seniority to
personnel decisions because it restricts their ability to make what they view
as being the best decision and/or course of action under ever changing
circumstances and conditions. In general, it can be said that the more
employees trust Management the more willing they are to accept their exercising
of discretionary judgment. Conversely, the less employees trust Management the
less willing they are to accept their exercising of discretionary judgment. Two
excellent examples of where employees do not generally trust Management to
always be fair and objective in decision making is in judging employee
performance for raises and promotions. When seniority governs wage increases
and/or promotions there is little if any room for discrimination based on
anything and everything but job performance.
It was the Union’s position that a well
established, consistently followed past practice of transferring the senior
Firefighter who requested to be transferred to fill a vacancy in another Unit
exists in the Fire Division. Mr. Massie testified that in his first 15 years of
service with the Division his was the first case where, when two or more
Firefighters had asked to be transferred to fill a vacancy on another shift,
that the senior Firefighter was not given the transfer. The record establishes
that although Chief McIntosh claimed that he did not consider employee
seniority in making voluntary transfer decisions to fill vacancies on other
shifts, except for the situation involving Mr. Lyons which the Arbitrator views
as an anomaly because the vacancy was not filled, the senior Firefighter was
the person who always got the transfer. The record further establishes that in
the Grievant’s case his seniority was considered, and it worked against him
because he would have been first in line to be the acting Captain something
Captain Evans, the A Unit Captain, did not want.
Chief McIntosh’s
August 20, 2003 letter to the Grievant notifying him of the decision to deny
his request for a transfer reads as follows:
“On August 16,
2003, I received your correspondence asking for a transfer to A unit. It is
commendable that you are looking to the future with the thought that being in a
position whereby you would be in an Acting Captain position would help with a
promotion. While I’m positive that you, as well as several others would do an
excellent job as an Acting Captain, this has never been taken into
consideration or helped when there has been a promotional test.
At the present
time, A unit runs very efficiently whether Captain Evans is here or not. He is
impressed with the operation. Therefore, Captain Evans has asked that his
second in command remain in that position. I agree with his position.
This in no way
should be construed in such a manner to suggest that you could not handle the
responsibility or would not do an excellent job as an Acting Captain. As
stated, I’m sure you would fit in very well and make a unit run smoothly.
However, at the present time, you will not be transferred.”
The record
establishes that the above cited is consistent with Chief McIntosh’s testimony
at the Hearing. In the Arbitrator’s opinion, Chief McIntosh had one, and only
one reason for denying the Grievant’s request and that was he did not want to
risk harming Unit cohesiveness by transferring Mr. Massie despite the fact that
Mr. Massie, in all respects is a good employee who gets along well with
coworkers and supervision including the Chief. In the Arbitrator’s opinion
Chief McIntosh’s reason is specious. In the Arbitrator’s opinion, Management
offered no substantive evidence whatsoever to support Chief McIntosh’s belief
that transferring the Grievant would have been overly burdensome, or would have
adversely affected Unit cohesiveness.
In the Arbitrator’s opinion Chief McIntosh’s inconsistent
and at times contradictory testimony served to diminish his credibility as a
witness. Chief McIntosh testified that seniority is never considered in
voluntary transfer decisions to fill vacancies, but he concurred with the
Union’s contention that Mr. Massie was the first senior employee who did not
get a requested transfer to another unit where a vacancy existed and the
position was filled. The
record establishes that since 1991 when Chief McIntosh was given the Chief’s
job there have been other instances where employees have been voluntarily
transferred to fill vacancies on other shifts and, as stated, the senior
employee always got the transfers when the vacancy was filled. As stated, Chief
McIntosh could not recall one instance in the 13 + years he has been the Chief
when a junior Firefighter was selected over a senior Firefighter to fill a
vacancy in another Unit and the vacancy was filled. This fact leads the Arbitrator to conclude that
seniority has been a defacto considered criterion. In the Arbitrator’s
opinion, Chief McIntosh’s claim that seniority has not been a criterion was
further discredited when he testified that Mr. Massie’s seniority was not only
considered, it was the only reason he did not get the position because if he
had he would have been first in line to be the acting Captain, something
Captain Evans did not want to see happen.
In the
Arbitrator’s opinion seniority rights are sacred to unions and their members.
Employee seniority rights are a major condition of employment and are of
personal benefit to nearly all, if not all bargaining unit employees. In the
Arbitrator’s opinion, the Division, until Mr. Massie was bypassed for the
transfer to fill a vacancy in A Unit, had a well established consistently
followed past practice of awarding voluntary shift/unit transfers to the senior
employee. In the Arbitrator’s opinion this past practice rises to the level of
being shadow language in the Agreement.
In conclusion,
for all the aforementioned reasons it is the Arbitrator’s opinion that
Management violated what was tantamount to shadow language in the Agreement
when Mr. Massie was denied his request for a transfer to fill the vacancy in A
Unit.
In the Arbitrator’s opinion Chief McIntosh’s decision was
arbitrary, but it was not based on any animus toward Mr. Massie.
Issue No.
2
If management
violated the agreement what is the appropriate remedy?
The appropriate
remedy is for Mr. Massie, if he still so desires, to be transferred to A Unit.
Mr. Massie is to be paid $262.96 for the hours he would have worked as the
acting Captain in A Unit. The record establishes that Mr. Massie had a history
of working only six (6) percent of the overtime hours offered to him when he
worked in C Unit. In the Arbitrator’s opinion it is pure conjecture to say how
much more of the offered overtime he would have worked had he been transferred
to A Unit. In the Arbitrator’s opinion, the six (6) percent should be applied
to calculating monies owed to him for missed overtime opportunities in A Unit.
Mr. Massie is entitled to be paid for six (6) percent of the difference between
the overtime offered to him and the overtime that he would have been offered in
A Unit from the date the transfer should have occurred to the date this Award
is implemented.
Award
The instant grievance is sustained. Without undue delay
Mr. Massie, if he still so desires, is to be transferred from B Unit where he
is currently assigned to A Unit. Mr. Massie is to be paid $262.96 for the hours
he would have worked as the acting Captain in A Unit. In addition he is to be
paid for six (6) percent of the difference between the overtime offered to him
and the overtime that he would have been offered in A Unit from the date the
transfer should have occurred to the date that this Award is implemented.