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In re
City of Lauderhill
and
Metro Broward Professional Firefighters
Local 3080
121 LA (BNA) 1035
AAA Case No. 32-390-00887-04
September 18, 2005
Nicholas Duda Jr., Arbitrator.
Nature of the Case
The City Manager of the City of Lauderhill terminated the employment of S__, a Lauderhill Firefighter for alleged violation on September 3, 2004 of specified sections of the Lauderhill Civil Service Rules, Lauderhill Fire Rescue Operating Standard #031 and Lauderhill Fire Rescue Department Rules and Regulations, which are excerpted below.
On behalf of S__ and the Union, Attorney Steven Warm filed the subject grievance protesting Grievant’s termination in the grievance procedure of the Collective Bargaining Agreement between the City of Lauderhill, Florida and Metro Broward Professional Firefighters (Local 3080). The Union waived a Step 3 grievance hearing and requested “this matter proceed directly” to arbitration under the terms of the existing Labor Agreement.
The Arbitration Hearing
Before the hearing began certain procedural problems and objections presented by the parties to the Arbitrator were discussed and resolved to the satisfaction of both parties. The parties then agreed there were no procedural or timeliness problems and that the Arbitrator has authority to decide the issues in dispute.
After a discussion, the parties stipulated the issue to be decided by the Arbitrator as follows:
Was the grievant discharged for proper cause under the terms of the existing Labor Agreement, and, if not, what shall the remedy be?
In regard to that issue Attorney Warm stated his contention that Grievant’s discharge violated Articles 1, 5, 9, 28 and 33 of the Collective Bargaining Agreement.
Positions of Parties
The Employer’s position
A. The grievant freely admitted he violated the hurricane preparedness policy which resulted in his discharge and such an admission must be given significant weight by the arbitrator.
B. The truthfulness and veracity of the respective testimonies of the city witnesses far exceeded that offered by the grievant who admitted under oath that he lied to the fire chief in a subsequent telephone conversation the day after the hearing was first officially closed.
C. All of the witnesses, including the grievant himself, knew the department’s hurricane preparedness policy which prohibits the consumption of alcohol by an employee once a hurricane watch goes into effect and they all know that a disregard of that obligation would constitute a willful breach of the policy itself.
D. The hurricane preparedness policy is a sound, well reasoned and highly critiqued policy created to achieve the highest duty the city government has to its citizenry, that being the protection of their health and well-being.
E. The city has met its burden of proof in its discharge of the grievant for cause. As per the labor agreement the arbitrator is bound to render a determination only on the question before him and should not engage in penalty modification absent an arbitrary, capricious or discriminatory reason, none of which are in existence in this instant case.
VI. Conclusion
... the City’s discharge of the Grievant for his willful violation of Fire-Rescue Department Operating Standard No. 031, titled, “Hurricane Preparedness” must be sustained and the instant grievance must be denied in its entirety.
The Grievant’s Position
... Roy Savigliano called S__ at about 10:00 A.M. [September 3, 2004] and said that instead of coming in on the following day at 6:00 (September 4th) he should call at 5:00 P.M. to see if his presence would be required ...
... on ... Friday evening of September 3rd, 2004, [Grievant] had dinner at home with his mother ... Roy [Savigliano] called S__ again at about 6 P.M., fifteen to twenty minutes after he’d finished dinner and asked him if he wanted overtime. S__ said no, he’d just finished dinner and had had a couple of glasses of wine ... Savigliano said ok and hung up.
About two minutes later he received another call from Savigliano who advised that they wanted to “mandatory” him. S__ asked if he could speak to an officer and he said he would call back. Savigliano didn’t call back, but a Lt. Vellico did in two or three minutes. She told him he needed to come in and he said he could be there in an hour ... Then she advised him she would call him back and hung up.
There was yet another telephone call. It was an hour later (an hour during which S__ could obviously have reported in if told to) and was informed by Chief Brinkmann that because he’d failed to report he was put on paid administrative leave and should not report until further notice ...
... weakness is inherent in the essence of real charge, the one litigated. The claim is that S__ consumed alcoholic beverages “on duty”. By the terms of the Department’s own regulation he was “on standby” not on duty ... he did not report for duty, so he certainly did not report for duty under the influence of anything.
... the specific regulations certainly bear scrutiny and analysis. Nowhere in this web of regulations is it set forth with clarity which ones are supreme or exactly how they are to interplay.
Article 1 of the Collective Bargaining Agreement is entitled “Non-Discrimination”.
It says:
There shall be no discrimination against any worker namely by reason of race, national origin, religion, color, sex, residence, disability, or Union membership or non-membership. The City and the Union affirm their joint opposition to any discriminatory practices in connection with employment, promotion, or training: remembering that the public interest is the full utilization of employees’ skill and ability without regard to consideration of race, color, creed, national origin, sex, religion, age or disability.
There is every indication in this case that S__ was treated discriminatorily. Whether the reason is his race, his national origin or his religion is clearly debatable, but the fact that there was anti-S__ literature circulated in the Department is a matter of record, as is the fact that he is the only person receiving this level of discipline even to the memory of the Chief; and even when another member of the Department (the detailed records with respect to whom were curiously unavailable) apparently had accelerated the death of a patient.
Article 5, “Management Rights” reserves to the City the right to “take disciplinary action for proper cause” ... but not to violate the terms and conditions of the Collective Bargaining Agreement.
Article 9, “Discipline” — is highly relevant. It says:
Disciplinary action taken will be fair and uniform with such other action taken by the Department under the same circumstances with consideration also being given to the employee’s past employment record.
The essence of the offense charged against this Grievant was failure to adhere to the policies of the Department. For one glaring example, that would also appear to be the essence of the charge against Savigliano, who was only reduced in rank. It is repeated again, because it is deemed so significant, that the Chief’s testimony indicated that no one had ever been terminated before, at least during his tenure, and this certainly raises a red flag as far as “uniform disciplinary practices”. As far as S__’s past employment record, the excerpts from his evaluation set forth earlier in this memorandum would certainly bespeak a valuable and productive employee.
Article 28, “Hours”, memorializes the “Kelly Day” program for employees. It was the existence and confirmation of this “Kelly Day”, amongst other things, that justifiably led S__ to believe that he would not be required to report at any time prior to September 4th, 2004.
Article 33, deals with “Overtime”...It says that, “The current rotation list/seniority method of selecting people for overtime work will be continued”. It also says that if it should be necessary to go beyond that list the chief or his designee should revert to “those on the list who live within 30 minutes of the city”. The testimony makes it clear that S__ lives more than 30 minutes from the city of Lauderhill. Both of these precepts were summarily ignored.
The “Hurricane Preparedness” regulations are also of relevance. One key provision there is that during a hurricane warning (and it is undisputed that a hurricane warning was in effect on September 3rd, 2004) “all shift personnel shall remain accessible to call-back at their listed fire department contact phone number”. S__ clearly remained accessible and, without contradiction, was ready, willing and able to come in. His sin, if he committed one, was total honesty when called.
... on the same page there is some language which says something similar, but in a slightly different way:
All personnel shall secure their homes and ensure that their families have adequate supplies. They will listen to weather reports and be prepared to report for duty on short notice when a hurricane warning is issued.
Clearly they are not on duty, they just need to be available to report for duty. S__, when all is said and done, did nothing of the contrary.
... In the absence of a clear, distinct any unmistakable proscription somewhere in the book, how can his career be snuffed out? As pointed out in the testimony, all it would have taken is this:
The consumption of alcohol in any amount, during a hurricane warning may result in termination.
That, or its equivalent, will not be found in the record because it isn’t there. But that is exactly what justice and reason required to justify the penalty that was imposed ...
In the final analysis then, whether S__ violated the rules is a question. The extent if he did, is fairly debatable and the penalty a harsh and unremitting one that isn’t what one would glean from the applicable regulations and isn’t what justice, applied with an even hand, would dictate or require.
* * *
Relevant Excerpts from the Submissions
Article 1—“Non-Discrimination”
There shall be no discrimination against any worker namely by reason of race, national origin, religion, color, sex, residence, disability, or Union membership or non- membership. The City and the Union affirm their joint opposition, or training; remembering that the public interest is the full utilization of employees’ skill and ability without regard to consideration of race, color, creed, national origin, sex, religion, age or disability.
Article 5—“Management Rights”
It is the right of the City to determine unilaterally the purpose of its fire department, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the City to direct its employees, take disciplinary action for proper cause, ... The exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequence of violating the terms and conditions of this agreement or any civil service regulation.
* * *
Article 9—“Discipline”
A non-probationary employee shall not be disciplined except for just cause ...
Disciplinary action taken will be fair and uniform with other such action taken by the Department under the same circumstances with consideration also being given to the employee’s past employment record.
From the City of Lauderhill Civil Service Rules, Section 9 (Disciplinary Action), B. Dismissal
... Although dismissals may be based on other causes, any one or more of the following may be sufficient:
4. Violation of any lawful and reasonable regulation, order, or direction made or given by a superior officer where such violation has amounted to insubordination or serious breach of proper discipline or has resulted in loss or injury.
8. Conduct, either while on or off duty, which reflects discredit upon the City (page 16).
9. Hindering the regular operation of the department or division because of absenteeism or tardiness.
11. Being absent without leave or failing to report after leave of absence has expired (page 16).
From Lauderhill Fire-Rescue Department: Operating Standard #031 (Hurricane Preparedness) [in pertinent part]
* Objective: The protection of life, property, public health and the welfare of the citizens and guests of the City of Lauderhill, Florida (page 1).
* Purposes: The purpose of the Hurricane Preparedness Plan is to affect the most efficient mobilization and utilization of the City’s staffing and equipment resources in the event a hurricane threatens or occurs ...
* Definitions:
Hurricane Watch: The Hurricane watch indicates that a hurricane is near and implies dangerous weather conditions may exist within 24 to 48 hours.
Hurricane Warning: The hurricane warning indicates that a hurricane is imminent and could start immediately or, at least within the next 12 to 24 hours. All precautionary measures and actions to protect life and property will be started.
* Phase I—Hurricane Watch: When the National Weather Center issues a hurricane watch the following actions will be initiated. Upon the direction of the Fire-Chief, shift staffing will be maintained at 27 personnel with officers on all units (Appendix “B”). An additional firefighter shall be assigned to communications to answer phones, keep logs, and disseminate information. “Kelly days”, vacations, holidays and other leaves will be cancelled, unless authorized by the Chief (e.g. in the case of personnel already out of the state when the hurricane watch is announced).
All personnel shall secure their homes and ensure that their families have adequate supplies. They will listen to weather reports and be prepared to report for duty on short notice or when a Hurricane Warning is issued. Answering machines will be deactivated and telephones monitored, or a forwarding number left with the EOC (page 4).
* Phase II—Hurricane Warning
All personnel shall remain accessible to call-back at their listed Fire Department contact phone number ...
City Fire-Rescue Department Rules and Regulations (Article II: Administration) (pages 17-18).
M. General
A. Rules of Conduct
* All Personnel shall:
7. Not consume alcoholic beverages or illegal drugs on duty, nor report for duty under the influence of alcohol or illegal drugs.
8. Not be absent from duty or leave on assignment without a superior’s permission.
21. Report for duty when scheduled or ordered, to the correct station, and on time.
Analysis
Findings of Fact
The city of Lauderhill is located in Broward County in Southeastern Florida, close to Ft. Lauderdale and about 25 to 30 miles North of Miami. Although smaller than those cities, Lauderhill has a modern, well equipped fire rescue department to fulfill its obligations in Lauderhill and beyond under Federal and State statutes, the Florida State Emergency Operational Plan, Lauderhill Municipal Ordinances, and Lauderhill’s Mutual Aid Agreements with Broward County and the Florida Emergency Preparedness Council. To aid in fulfilling its obligations the city utilizes a comprehensive manual of the rules of operation, conduct and behavior for personnel of the Lauderhill Fire Rescue Department.
The manual of conduct, rules and regulations have been in effect for over ten years. Portions are amended and supplemented from time to time as determined necessary by the Fire Rescue Department and City. Every firefighter is responsible to be knowledgeable of all contents in the manual.
The Fire Rescue Department issues a copy of the manual to each firefighter hired by the City. To insure that all firefighters know the contents of the manual, each newly hired firefighter is trained in the entire manual during that firefighter’s orientation training. In addition, all firefighters are regularly reminded of important requirements in the manual. In particular, such reminders are given in respect to Standard #031 “Hurricane Preparedness”, of the Lauderhill Fire Rescue Department. That standard was first issued by Lauderhill in 1993.
Lauderhill Operating Standard #031 resulted in part from the involvement of a contingent of Lauderhill Fire Rescue Personnel who aided in the recovery from the disastrous impact in Metro Dade County caused by Hurricane Andrew in 1992. From that experience and involvement, a team assessment was made that Lauderhill had some shortcomings in its existing 1992 procedures and responsibilities for “Hurricane Preparedness”. Extensive changes were made and published in 1993 as Standard #031. A comprehensive document, the Standard was taught to the entire Fire Rescue Staff of Fire Rescue in 1993 and to every subsequent hire. In addition, every firefighter receives “refresher training” in Standard #031 each year just before the beginning of the Florida hurricane season (June-Late October).
Among other things, Standard #031 mandates that during a hurricane watch all Fire Rescue Personnel must “secure their homes, and ensure that their families have adequate supplies. They will listen to weather reports and be prepared to report for duty on short notice or when a hurricane warning is issued.” When a hurricane warning is issued, “all shift personnel shall remain accessible to callback at their contact phone number.”
Every training session given to firefighters on Standard #031 is presented by a Fire Rescue Supervisor. Each of them emphasizes and specifically states that the hurricane policy mandates that each firefighter during a declared hurricane watch maintains him or herself in a state of readiness to be called by the City for emergency hurricane duty on a moment’s notice. The supervisor performing the training always clearly and emphatically orders that no one may drink alcoholic beverages during the hurricane watch or warning; everyone is told that if he/she drinks alcoholic beverages while on standby for callback that firefighter is subject to discharge for not maintaining readiness to return on a moment’s notice.
Grievant was hired as a firefighter in 1999. He received the aforementioned training during his orientation and annually thereafter including in late Spring of 2004. He admits having received that training and the information noted above about not drinking alcoholic beverages during a hurricane watch or warning.
The hurricane policy and procedure was implemented during mid-August 2004 for the “devastating hit” from hurricane Charlie, a category 4 hurricane. Only a few weeks later hurricane Frances also approached Florida; Frances was also predicted to become category 4. On September 1, 2004 the state of Florida declared a State Of Emergency for Frances. Broward County did the same. On Thursday September 2, 2004 Lauderhill City Manager Faranda issued a Declaration of State of Emergency as Frances continued toward South Florida. Within the Lauderhill Fire Rescue Group, the Chief issued a hurricane watch then warning. Firefighters who were not on actual duty arranged their affairs so that they were ready to report for duty on a moment’s notice from their standby status.
Grievant testified in Arbitration that he received a call at 10:00 a.m. on September 3, 2004 in which the Fire Rescue Communicator told him to call later that day at 5:00 p.m. “to see if his presence would be required.” The same Communicator called Grievant at about 6:00 p.m. September 3 and told him he was “mandatoried” to come to duty. In response Grievant stated he would not come to duty because he had been drinking wine. Grievant asked to speak to an officer and he did a few minutes later when an officer called. The officer concluded from their conversation that Grievant was refusing to come to work as ordered because he had been drinking alcoholic beverages.
Coincidentally, another firefighter—Acting Lieutenant H__ — also was told to come to work, but he also said he would not because he had been drinking alcoholic beverages. Supervision called out two other firefighters to replace Grievant and H__.
After an investigation the City terminated Grievant and H__ on identical charges, excerpted above. Grievant filed a grievance about his termination. H__ also grieved. After discussions between the Union and each of the two Grievants, the Service proposed Terms of Resolution for each grievance. H__ accepted the City’s proposal. Grievant did not and proceeded with his grievance to arbitration.
As stated above, the record was closed on this case after the third day of hearing on June 10, 2005.
On June 13, 2005 Lauderhill Fire Chief Curran received an unsolicited telephone call from Grievant. Based on the Chief’s report of that call, the hearing was reopened on July 14, 2005 to receive testimony about a statement by Grievant to the Chief on June 13, 2005 concerning Grievant’s testimony on June 10, 2005.
During his testimony on June 10th, Grievant had testified that a document under consideration for admission had been provided by Firefighter H__. (Ultimately the document was not admitted).
Chief Curran and Grievant were the only witnesses on July 14, 2005. Their testimony was under oath, as all earlier testimony had been.
At the July 14th hearing the Chief quoted Grievant as saying his statement on June 10th about H__ providing the document was a “lie”.
When Grievant was asked whether he had made that statement to the Chief on June 13th, Grievant answered in the affirmative. Then he testified his statement to the Chief on June 13th was a lie, because his statement on June 10th about H__ having provided the document was true. His explanation for lying on June 13th was to avoid causing any “problems” for H__.
From Grievant’s standpoint he had a “reason” to lie on June 13 to his Chief and that was “OK” so long as it was not under oath.
That type of rationale does not give this Arbitrator much confidence about grievant’s unsworn statements to his supervisors about the facts in the September 3, 2004 and his testimony in arbitration.
Frankly, the main factual item in this case is Grievant’s drinking alcoholic beverages while on Hurricane Watch. When called for duty, Grievant said he would not or could not come because he had been drinking wine with someone and he knew he could not report to active duty while under the influence because of some of the rules.
We note that no testimony was offered by his “companion” in wine drinking about the circumstances. In this case what specific alcoholic beverage and how much are not critical. Suffice that his statement when mandatoried [sic] to report was that he had been “drinking wine” (later “two glasses”). Those admissions are sufficient to establish his culpability.
Conclusions of Fact
A hurricane watch under Operating Standard #031 was in effect for the Lauderhill Fire Rescue Department on September 3, 2004. It applied to Grievant and other firefighters. Grievant was under orders to “be prepared to report for duty on short notice or when a hurricane warning is issued.” All firefighters including Grievant had been told they should not drink alcoholic beverages during a hurricane warning or watch because such drinking was a failure to maintain that firefighter in a state of readiness for emergency hurricane duty if and when called.
All firefighters had been told the Fire Rescue Department and City held a Zero Tolerance to drinking alcoholic beverages by a firefighter on standby duty during a hurricane watch. Grievant knew of the aforementioned facts when he admittedly drank alcoholic beverages during the hurricane watch on September 3, 2004. Aside from his own testimony, the only evidence presented about Grievant’s drinking on September 3 was provided by Grievant himself although other persons had been present during that alleged incident. Grievant chose not to present any witness.
Evaluation
As seen most recently with “Katrina” in the Gulf Coast, successful management of “Canes” involves two aspects—thorough planning/advance preparation and then proper execution by First Responders when the Cane appears. The City has responsibilities in both aspects. Lauderhill had honed its Hurricane Preparedness Policy. The execution by Fire Rescue management and the vast majority of the Lauderhill Fire Rescue Staff fulfilled their responsibility.
Grievant (and one other Firefighter/Paramedic) did not. Grievant had been told and knew he was to maintain his readiness and fitness for duty on a moment’s notice but he comprised his fitness to help protect “life, property and the welfare of the citizens” by doing the very thing he was expressly ordered not to do while on watch. Having drunk wine was not a legitimate, acceptable excuse for not maintaining his fitness or for failing to report when ordered. Thus he committed insubordination. The drinking, which Supervision had expressly prohibited during the hurricane watch was a separate and additional basis to find him guilty of insubordination.
Under the circumstances of this case, those violations were proper/just cause for discharge under Articles 5 and 9 of the Collective Bargaining Agreement. Contrary to the Union/Grievant position, removal of Grievant was fair and uniform “with other action taken by the department under the same circumstances.” Only one other employee (H__) was guilty of the same misconduct and he employee received the same discipline as Grievant. During processing of their cases, the City offered both employees the same opportunity for redemption. Only H__ accepted the opportunity. Grievant refused.
Grievant claims his dismissal violated several other provisions in the Collective Bargaining Agreement. We have not been shown any violation of Articles 1, 28 or 33.
Award
Grievant knew his duty under Operating Standard #031 during a hurricane watch was to maintain himself ready to report if called. During the watch for “Frances” on September 3, 2004 grievant was called but said he would not/could not report because he had been drinking alcoholic beverages, conduct he knew was prohibited during a hurricane watch by supervision. The failures to obey the written and oral orders of supervision were just/proper cause to discipline grievant under Articles 5 and 9 of the Labor Agreement.
The City of Lauderhill has made extensive commitments to hurricane preparedness and spelled out the role of each firefighter in Fire Rescue. Recent experience with hurricanes emphasizes the imperative need for each first responder to perform as planned and ordered. Under the circumstances of this case the Arbitrator has not been convinced of any basis for finding the City’s decision to discharge grievant was arbitrary, capricious, unreasonable or discriminatory. The grievance is denied and dismissed.