|Capt. R. Miller||Capt. S. Harrington|
|LT. M. Dietz||Lt. J. Turgeson|
|MPO R. Reitan||MPO D. Nivarel|
|MPO J. Zimmer||MPO J. Cich|
|FF B. Vesper||FF J. Jasicki|
|FF M. Anderson||FF S. Burns|
After May 1998, the platoons were as follows:
Miller Harrington Dietz Turgeson Zimmer Reitan Jasicki Cich Vesper Anderson Burns Putnam
On May 11, 1998, the Association submitted to the Chair of the City's Personnel and Negotiating Committee a formal written grievance which read in part as follows:
This grievance is about having choice of crews in the event of crew changes. With the hiring of a new member, the members of the two crews have to move to properly fill in the positions. In this move the Chief has asked all of the senior people in each position which crew they would prefer to work on except for Scott Burns who is senior to the new Fire Fighter. Scott has been notified by a letter in his station mailbox as to which crew he will be working with. Local 1793 feels Scott should have been given a choice of crews.
. . .
Local 1793 contends that any senior man on crews has the right to choose which crew to work on when switches are being made.
POSITIONS OF THE PARTIES
In support of its argument that the grievance should be sustained, the Association asserts and avers as follows:
The collective bargaining agreement clearly provides that no working condition in place and not changed shall remain in full force. There has been a working condition here that prior Fire Chiefs have discussed with senior fire fighters whether they had a platoon preference, which was not done in the current instance. Here, the Chief talked to each senior firefighter except the grievant, asking how scheduling would affect their lives; each preference was honored. This continuation of a long standing policy was extended to everyone senior in a position except Burns, who had seniority over firefighter Putnam and by position of Senior Second Private. Although platoon re-alignments made in mid-year have not occurred often, when they have, the senior fire fighter in each position was asked for platoon preference. The Chief's own testimony supports that this is a long standing practice; denying this grievance would deviate from this policy. The long standing practice of soliciting the input of each senior fire fighter holding a position should be continued, and the grievance sustained.
In support of its argument that the grievance should be denied, the City asserts and avers as follows:
The transfer of the grievant was consistent with the employer's well-established management rights, made explicit in the collective bargaining agreement. The parties have agreed that the employer has the right to transfer employes to an alternate shift, and to otherwise direct and assign. The Chief's right to determine shift assignments to ensure trained and competent staff is clear, as was the legitimate justification: to give the grievant the experience of working with another platoon, and to assign a new hire to the shift with the Department's training officer.
For the Association to prevail, it must establish that there are asserted or implied restrictions within the collective bargaining agreement, or a binding past practice affecting ambiguous language, which require the employer to seek, on a seniority basis, shift preferences. The Association cannot meet this test.
The collective bargaining agreement does not restrict the employer's right to transfer the grievant. The seniority language provides how seniority is earned; it does not create any entitlement or seniority-based right, nor allow shift selection on its basis. The work week language defines how the unit is organized, and places no restrictions on transfers. That the Chief reassigned some more senior fire fighters consistent with their preferences was entirely within his discretion, and did not create a contractual right for the grievant.
The Association has not established any past practice which restricts the employer's authority to transfer the grievant. That the Chief has in the past asked about preferences or input shows that he is a nice guy who cares about his employes; it does not rise to the level of an unequivocal, clearly enunciated and firmly established practice accepted by both parties, such as is necessary to establish an enforceable past practice.
The Association's remedy is beyond the scope of the arbitrator's authority, in that it requests that all shift transfers be made voluntary. The employer has the express contractual right to transfer and to reassign; for the arbitrator to sustain the grievance would be to improperly amend the collective bargaining agreement beyond rightful authority.
The Association contends the parties "have and have had a long standing practice" whereby management solicits and honors employe preferences in platoon assignments. Consistent with that purported past practice, it asserts, the grievance should be sustained and senior personnel be given the "right to choose" which crew to work on "when switches are being made."
In support of its past practice argument, the Association cites testimony that such opportunities have been given to unit personnel, as far back as twenty years ago. The Association further notes that, in the transactions before me, personnel other than the grievant were indeed offered the opportunity of accepting or declining transfer.
The Association's past practice argument, however, falls on two accounts. The first is that the evidence does not satisfy the accepted standard for establishing past practice. As the employer correctly notes, a past practice is not established as binding on both parties unless it is unequivocal, clearly enunciated and acted upon, readily
ascertainable and accepted by both parties. 1/ The fact that a different Fire Chief may have offered personnel the right to accept or decline a transfer twenty years ago, or even that this Fire Chief made such an offer in the current round of transactions, does not meet that test.
1/ Celanese Corporation of America (Justin, 1954), 24 LA 168, 172.
Such evidence especially fails in light of clear and unambiguous language in the collective bargaining agreement which explicitly authorizes management to take the very act which the Association complains of. As the employer correctly notes, among the management rights which the collective bargaining agreement recognizes are those of transferring employes within the department, directing employes in their duties, and determining the means and personnel to conduct its operations.
This collective bargaining agreement has a savings clause which explicitly preserves the wages, hours and conditions of employment unless changed by mutual written agreement. The Association contends this provides another justification for its grievance.
It does not. The reference to "hours" in this phrase is to the hours of work for all unit personnel; it is not to the specific platoon that one individual is assigned to. And the phrase "conditions of employment" is not so broad as to include "the condition of the Fire Chief consulting with personnel as to their shift preference," especially given the explicit management rights to transfer and assign.
To preserve and improve employe morale, it is always a good idea for management to consult with employes on matters with a direct impact on their personal lives, such as their shift assignment. The Fire Chief did just that for almost all affected personnel, allowing some to shift and others to remain on their platoons. Ultimately, however, he determined that it was necessary to assign the new recruit to the platoon headed by the department's training officer, B platoon. This was certainly a legitimate management decision. In order to make such assignment, however, he had to create an opening on B platoon. The least senior member of B platoon was the grievant, who was involuntarily moved to the A platoon. This action was contrary to the grievant's wishes, but it was not contrary to the collective bargaining agreement.
Accordingly, on the basis of the record evidence and the arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 15th day of January, 1999.
Stuart Levitan /s/
Stuart Levitan, Arbitrator