BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR FIRE FIGHTERS, LOCAL #74,
CITY OF SUPERIOR
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, by
Attorney Timothy E.
Hawks, appearing on behalf of the Union.
Ms. Mary Lou Andresen, Human Resources Director, City of
Superior, appearing on behalf of
Superior Fire Fighters, Local #74, IAFF, hereinafter referred to as the Union, and
of Superior, hereinafter referred to as the City, are parties to a collective bargaining
which provides for the final and binding arbitration of disputes arising thereunder. The
made a request, with the concurrence of the City, that the Wisconsin Employment Relations
Commission designate a member of its staff to act as an arbitrator to hear and decide a
over the meaning and application of the terms of the agreement. The undersigned was so
designated. Hearing was held in Superior, Wisconsin, on July 21, 1998. The hearing
transcribed and the parties filed post-hearing briefs which were exchanged on
September 9, 1998.
The parties reserved the right to file reply briefs and each party indicated that it would not
and the record was closed on October 12, 1998.
The City has three engine companies with one at each station. For many years the
headquarters station had a tanker and a squad. The tanker basically was a 1,000 gallon tank
a vehicle that was driven to certain areas where additional water was needed. The staffing at
headquarters station consisted of a Captain, a Driver or Motor Pump Operator, a Utility
and a Firefighter. The headquarters station also had a four-wheel pick-up truck with a 50
tank and a pump to fight grass fires, which vehicle was called the squad. The Utility Driver
responsible to drive the tanker and squad. Sometime in the recent past, the fire Department
purchased a new fire truck which had a 1,000 gallon water tank and in 1997, the tanker was
decommissioned and refurbished into a special needs vehicle, mainly Haz-Mat equipment. In
past, the squad was used extensively but in the past few years its use has decreased. The
Chief considered eliminating the Utility Driver position because the tanker was gone and the
was used infrequently.
In negotiations for the successor to the 1994-1996 collective bargaining agreement,
City proposed three swing Motor Pump Operators to fill in for vacancies and vacations.
Additionally, the Fire Chief sought two additional positions which would come out of the
by controlling overtime, staffing levels and vacations. In anticipation of an agreement, on
February 12, 1998, the Chief announced these positions and the headquarters staffing would
remain the same except that there would be a swing Motor Pump Operator. The agreement
not ratified and on February 25, 1998, the Fire Chief announced the elimination of the
Driver position but continued the rank of Utility Driver for the two employes who held that
until Motor Pump Operator openings occurred. The third Utility Driver was not continued
because Captain Dale Trolson retired, Bob Swanson was promoted to Captain and the third
Driver position was eliminated and a Fire Fighter position replaced it, which was filled by
Panger. Thereafter three grievances were filed. The first asserted a refusal to post the
MPO vacancy; the second was the elimination of the position; and the third was that it was
by Panger, a junior employe. Panger continued to receive Fire Fighter pay and only was
the MPO rate if he operated equipment to temporarily qualify for the higher rate.
The Union stated the issue as follows:
Did the City violate the collective bargaining agreement when it filled the
MPO position with Steve Panger; when it failed to post the position; and when it
eliminated the position? And if so, what is the appropriate remedy?
The City stated the issue as follows:
Did the City violate the working agreement when it temporarily filled a
driver position with Mr. Panger; when it did not post a driver position upon the
retirement of Dale Trolson; and when it reallocated a driver position to a firefighter
level in February of 1998?
The undersigned frames the issue as follows:
Did the City violate the parties' collective bargaining agreement after
Captain Trolson retired when it downgraded a MPO position to a Firefighter
position? If so, did the City violate the agreement by not posting the MPO position
and by filling it with Steve Panger, a junior employe?
If so, what remedy is appropriate?
PERTINENT CONTRACTUAL PROVISIONS
a) As of the effective date of this Agreement, members of the bargaining unit shall
be paid the salaries set forth in Appendix "A".
b) Whenever a member of the bargaining unit is required to work in a grade
higher than his regular position, he shall be compensated therefore (sic) at the rate
established at the higher grade.
. . .
a) Filling Vacant Positions: Whenever a vacancy occurs
in the bargaining unit,
to fill the position the City will post the position for a
period of fifteen (15) days
during which time written applications will be received by the Chief.
. . .
d) Except as provided in b), all positions shall be filled by the
applicant with the
greatest seniority; provided that, if such position requires specialty training and
skills, such position shall be filled on the basis of ability to perform such skills.
In the even of equal ability, the most senior applicant will be selected.
. . .
The Union contends that the City unilaterally changed the wage rate applicable to the
Utility Driver position on the third platoon without the Union's consent. The Union points
that the job description for the MPO/Driver provides that the MPO operates motor equipment
apparatus and the distinguishing characteristics include the operation of motorized firefighting
vehicles. It submits that the squad is a motorized firefighting vehicle and motor equipment
apparatus and the rescue unit responds to other alarms and operation of these vehicles
MPO's duties, as even firefighters are paid MPO rates when driving them to a scene. The
rejects the Chief's assertion that usage of these vehicles does not justify a full-time MPO, but
observes that there is a full-time MPO on Platoons 1 and 2, but not 3, a change in a
privilege and condition of employment, i.e. the wage rate paid to the Utility Driver on
It submits that if the Chief grandfathered the existing Utility Drivers, it proves the Union's
as grandfathering must be bargained. It claims that the unilateral downgrade of a Utility
to Firefighter is an evasion of bargaining. It insists that the City was not entitled to
the Utility Driver but had to maintain it as an MPO position. It submits that when a vacancy
occurred by Swanson's promotion to Captain, the City had to post and fill the position and
simply assign it to Panger who was junior to others.
The City contends that under its managements rights, the City has the sole right to
determine the methods, means and personnel by which Fire Department operations are to be
conducted. The City argues that it properly decided that the Utility Driver position was
appropriately allocated at the Fire Fighter level and while it did not reduce the pay of
it filled the first vacancy with a Fire Fighter. It notes that filling a Fire Fighter position is
promotion so no posting is required and as new vacancies occur in MPO positions, those
will be filled by a Firefighter until complete through attrition.
The City asserts that Article 3 a) contains the words "to fill the
position" which means the
City has the discretion to fill the position and if it does through promotion, the procedures of
Article 3 must be followed. The City claims that the Union's argument that it failed to
the impact of its decision is erroneous as noted in the Chief's answer to the grievances
It observes that there was no request from the Union to bargain impact after the Chief
them of his actions on February 25, 1998.
The City maintains that there has been no change in practice in the pay
provided by the
parties' agreement and any employe performing MPO duties is paid at the MPO level. The
concludes that it acted properly and no employe was harmed by the change even in the
to the new structure. It contends that there were no violations of the parties' agreement.
Although there were three grievances filed, they all hinge on whether
the City violated the
agreement when it determined that the Utility Driver position should be downgraded to a
Firefighter position. Article 6 c) I grants the City the right to determine the methods,
personnel by which Fire Department operations are to be conducted. The Chief has the right
determine the personnel that make up a platoon and duties assigned to these personnel
their classification based on the job descriptions. The duties presently assigned to the Utility
Driver establishes that there are insufficient motor vehicle equipment and apparatus operation
warrant the position be classified as a MPO. The Union has argued that the squad is used as
the rescue vehicle but this is limited to a few months of the year and to a small number of
such that the provisions of Article 2 b) apply, as it does not require a
classification of the higher
position when the main duties of the position fall within the lower classification.
The Union has argued that the City is required to maintain a position at
the MPO level
because it has a MPO on the first and second platoons. None of the grievances object to the
grandfathering of the MPO on the first and second platoons. Certainly all could be
because they are not performing at the proper level as the classification system is based on
paid for performing at the MPO level. The City is not seeking that these positions be
and will transfer them to MPO vacancies as they occur. The Union certainly is not asking
they be downgraded and their being "red circled" does not mean a Firefighter doing work
the firefighter classification should be promoted merely because others are "red circled."
is no provision in the contract that provides for such a result. Contrary to the Union's
the City is not required to maintain the position as a MPO. Because the downgrade was
the City did not eliminate the position but merely
classified it according to the duties assigned. Thus, the City was not
obligated to post the position
nor award it to the senior applicant but properly assigned it to a Firefighter, in this case, to
Based on the above and foregoing, the record as a whole and the
arguments of counsel,
the undersigned issues the following
The City did not violate the parties' collective bargaining agreement
after Captain Trolson
retired when it downgraded a MPO position to a Firefighter position. Thus, the City was not
required to post any position and filling it with Steve Panger was proper, and therefore, all
grievances are denied.
Dated at Madison, Wisconsin, this 24th day of
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator