BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF OSHKOSH
OF FIREFIGHTERS LOCAL 316
Godfrey and Kahn, S.C., by Mr. William G. Bracken,
Coordinator of Collective Bargaining
Services, 219 Washington Street, Oshkosh, Wisconsin 54902-1278, appearing on behalf of
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, by
Mr. John B. Kiel, Attorney
at Law, 700 West Michigan, Suite 200, Milwaukee, Wisconsin 53201-0442, appearing on
the International Association of Firefighters, Local 316.
The City of Oshkosh, hereinafter referred to as the City, and the International
Firefighters, Local 316, hereinafter referred to as the Union, are parties to a collective
agreement which provides for final and binding arbitration of grievances. Pursuant to a
arbitration the Wisconsin Employment Relations Commission appointed Edmond J.
to arbitrate a dispute over nighttime training. Hearing on the matter was held in Oshkosh,
on December 10, 1998. A stenographic transcript of the proceedings was prepared and
the arbitrator on December 22, 1998. Post hearing arguments and reply briefs were received
March 2, 1999. Full consideration has been given to the evidence, testimony and arguments
presented in rendering this Award.
During the course of the hearing the parties agreed upon the following issue:
"Did the City violate the collective bargaining agreement when it
issued the policy ordering
employees to engage in nighttime training at the airport?"
"If so, what is the appropriate
. . .
The City possesses the sole right to operate
City government and all management rights repose
in it, but such rights must be exercised consistently with the other provisions of this
The powers, rights and/or authority herein
claimed by the City are not to be exercised in a manner
that will undermine the union or as an attempt to evade the provisions of this agreement or to
the spirit, intent or purposes of this agreement.
. . .
NORMAL WORK WEEK NORMAL
WORK DAY NORMAL WORK SCHEDULE
The average normal work week for the Fire Department shall be
fifty-six (56) hours to be worked
on a three (3) platoon system, utilizing a duty system of twenty-four (24) hours of duty
7:00 a.m. and a forty-eight (48) hours off duty, with the exception of the following
A. Lieutenant of Instruction
B. Lieutenant of Inspection
The work week for the following classifications shall be forty (40)
hours to be worked in four
(4) consecutive ten (10) hour days from 7:00 a.m. to 5:00 p.m. either Monday, Tuesday,
Thursday or Tuesday, Wednesday, Thursday, Friday:
A. Lieutenant of Instruction
B. Lieutenant of Inspection
In some cases an individual will voluntarily work an extra 24
hour shift and then take 3 days in
a row off instead of time and one half. (Platoon transfer.)
The words platoon transfer in the above
sentence shall mean a transfer of a permanent nature,
not a temporary transfer. A permanent transfer shall consist of no less than five (5) work
Transfers of any nature shall not be used to circumvent Compensatory time and one-half.
employee who volunteers to attend schools during his off-duty time will receive expenses that
cover meals, lodging, mileage and registration fee if approved by the administration. No
compensation for off duty time involved will be paid.
. . .
RULES AND REGULATIONS
The Employer may adopt and publish rules which may be
amended from time to time, provided,
however, that such rules and regulations shall be first submitted to the Union for its
to the effective date.
This article in no way will affect the rules
and regulations falling under the jurisdiction of the
Police and Fire Commission as set forth in state statutes. The employer agrees that any rules
regulations pertaining to wages, hours, conditions of employment whether now in force or
adopted shall be voided by this agreement.
. . .
The parties agree to maintain the present
level of benefits and policies that primarily relate to
mandatory subjects of bargaining, not specifically referred to in this agreement. This
expressly limited to mandatory subjects of bargaining.
The Union and the City have been parties to a number of collective bargaining
govern the wages, hours and working conditions of firefighters employed by the City. The
matter arose when the City's Fire Chief, Stanley Tadych, directed the issuance of a work
required firefighters to perform nighttime training duties at Wittman Airport.
The City employs ninety-seven (97) employes assigned to five (5) stations located
the City. A typical workday for firefighters begins at 7:00 a.m. when they report for duty.
until 11:00 a.m., they perform routine duties of preparing their equipment, training, and
the fire station. From 11:00 a.m. until 1:00 p.m. they are on break for lunch. From 1:00
4:30 p.m. they again perform routine duties. After 4:30 p.m. they normally rest and relax
relieved at 7:00 a.m. the following day. Historically bargaining unit employes have referred
time between 7:00 a.m. and 11:00 a.m., and, 1:00 p.m. and 4:30 p.m. as the duty day. The
between 11:00 a.m. and 1:00 p.m., and 4:30 p.m. and 7:00 a.m. have been referred to as
time. The City has issued a policy that allows employes the use of recreational materials
stand-by time. However, the collective bargaining agreement is silent concerning the typical
schedule, duty day and stand-by time.
In 1990 the City scheduled training on Saturdays and the Union grieved the matter to
arbitration. In denying the grievance the arbitrator noted that assignment of duties is a
subject of bargaining and concluded the City was entitled to schedule Saturday firefighter
training sessions as a part of a firefighters normal job duties.
During bargaining for the 1993 and the 1995 collective bargaining agreements the
proposed language which would explicitly define the duty day and limit the City's ability to
duties after 4:30 p.m. with certain specific exceptions such as nighttime training at the
City rejected the proposals and the collective bargaining agreement remained silent
defined duty day.
In 1998, during a meeting with the Wittman Airport Manager, the manager indicated
Taydych that he was concerned the Fire Department vehicles assigned to the airport were not
exercised on a regular basis. Federal Aviation Administration regulations require
the airport. Pursuant to Chief Taydych's order Captain Stievo issued a directive on July 20,
Engine 14 make one night run per month and Engine 17 to make one night run every other
The training included taking the vehicle out and driving around the airport's access roads and
taxiways and takes approximately (30) thirty to forty-five (45) minutes. The Association
instant grievance alleging the nighttime training constitutes a change in the level of benefits,
violation of Article XV. Thereafter the matter was processed to arbitration in accord with
The Union contends that because the City's work rule pertained to hours of active
work it is
voided by the contract's present benefits clause. The Union asserts the Wisconsin
Relations Commission has long held that the length of a firefighter's duty day is a mandatory
of bargaining and argues that the collective bargaining agreement bars the City's efforts to
extend the duty day. The Union argues that at the time the current agreement was signed the
day ended at 4:30 p.m. Further, that no work rule, policy or practice compelled firefighters
perform routine driver training after 4:30 p.m. The Union asserts the rule ordered by the
violated Article XII and Article XV.
The Union also argues that nighttime driver training is neither essential nor necessary
and efficient response at the airport. The Union argues only Chief Tadych and Assistant Fire
Vincent Straus insist nighttime training is necessary. The Union also points out no federal or
official compels such training and the airport manager did not demand such training. The
claims the Chief's decision that familiarization at night is important because a firefighter
could get lost
or turned around has never occurred. The Union also asserts that familiarization could be
accomplished before 4:30 p.m. and that this is supported by the testimony of firefighters
John C. Gee,
Peter J. Volkman and John G. Searls. The Union concludes the opinion of the Chief and
Chief regarding the importance of nighttime training is speculative, stand alone and
not necessary to safe and efficient response.
The Union also argues that the City's attempt to extend the work day should be
a violation of past practice and as an effort to obtain through unilateral action that which it
in bargaining. The Union argues the record does not support the existence of a practice of
nighttime training at the airport but does establish a clear, unmistakable, long term,
of ending the active work day at 4:30 p.m.
The Union acknowledges that the parties did discuss the issue of nighttime airport
training during bargaining during 1993 and 1995. The Union asserts it offered to alter the
by allowing nighttime training at the airport as an incentive to incorporate the
status quo into the
collective bargaining agreement. The Union points out it withdrew the proposals only on the
assurances of the City's representative Norbert W. Savatos that there would be no major
the duty day practice then in existence. The Union argues to deny the grievance would be
to the bargaining process.
The Union would have the undersigned sustain the grievance and direct the City to
desist nighttime training.
The City contends arbitral precedent supports the City's contention that it has the
managerial prerogative to assign tasks, including training and that the determination as to
are to be assigned to firefighters as part of their normal scope of duties constitutes a
subject of bargaining. In support of its position the City points to the 1990 arbitration award
concerning the assignment of Saturday training. The City asserts that matter is similar to the
matter and asserts the Union is advancing the same arguments rejected by the arbitrator
City also points to a 1994 award wherein the arbitrator held the assignment of terry towel
was within the regular scope of a firefighter's employment and thus did not relate to a
subject of bargaining. The City asserts the assignment of nighttime training is within the
scope of a
firefighter's employment and thus does not relate to a mandatory subject of bargaining.
The City also asserts the right to schedule work, including training, is a normal and
right reserved to management. The City points out nothing in the agreement restricts or
City's right to schedule training. The City also points out Article XII allows the City the
adopt rules and regulations. The City points out the Wisconsin Employment Relations
has held that if an employer is vested with a contractual right it is not required to bargain
union when the employer exercises that right.
The City also points out there is no duty day language in the collective bargaining
and argues the agreement does not restrict or limit the City's right to schedule work,
training, beyond the so-called duty day. The City also argues the Union failed to
ironclad duty day as it uses the term. The City asserts the record demonstrates that there has
been flexibility in the work schedule to accommodate unique situations including training.
also asserts it rejected the Union's proposals concerning duty day language in order to
flexibility in its scheduling. The City argues that there have always been exceptions to the
and it has historically required firefighters to engage in activities outside the duty day. These
included EMS training one night per month and HAZMAT training at night.
The City also argues nighttime training exercises are reasonable. The City points out
purpose is to familiarize firefighters with the layout of Witman Field, would not consume a
amount of time (thirty to forty-five minutes) and would be reduced when firefighters
they were familiar with the layout of the airport. The City also argues in light of the
mission and responsibilities this is not a significant expansion of what is expected and makes
a lot of
sense in the provision of greater protection to potential victims.
The City also argues the right to schedule nighttime training is a permissive subject
bargaining and therefore there is no violation of Article XV. The City also points out the
Employment Relations Commission has held that if a particular duty is fairly within the
responsibilities normally performed by the employes involved the decision to perform such
a permissive subject of bargaining. The City concludes that while a specific duty day may
mandatory subject of bargaining, the Union can cite no such language. The City asserts the
assignment of nighttime training will only enhance effectiveness in performance of regular
The City also argues the remedy sought by the Union is harsh, absurd, nonsensical
contrary to public policy. The City further argues the Union is attempting to obtain through
arbitration what it could not gain through collective bargaining.
The City would have the undersigned deny the grievance.
Union's Reply Brief
In it's reply brief the Union argues the collective bargaining agreement does not
City the right to unilaterally implement a work rule compelling nighttime drive training. The
points out that the City's management rights must be exercised consistently with the other
of the agreement and the spirit, intent and purpose of the agreement. In support of it's
Union points to Article II, XII, XV, and XXII and asserts the City is asking the undersigned
Article XV, Present Benefits and if the grievance is denied because of the absence of duty
language Article XV is rendered meaningless. The Union asserts there has been a clear
terminating driver training at 4:30 p.m. and if the City desires to terminate the practice or
of the collective bargaining agreement it should do so in bargaining.
The Union also argues the City's reliance on Wisconsin Employment Relations
case law is misplaced and can provide no support for the City's position. The Union points
language in the parties' collective bargaining agreement differs from the cases cited by the
Union points out Article XII specifically voids any work rules pertaining to wages, hours and
conditions of employment. The Union concludes the collective bargaining agreement limits
of the City to order nighttime driving training and that it has no vested right to order such
The Union also argues that bargaining history does not provide a sufficient basis on
disregard a well established past practice. The Union points out the duty day historically
4:30 p.m. and that this practice is firmly entrenched as demonstrated by the settlement of the
recreational materials by firefighters. The Union also asserts the 1993 and 1995 proposals to
duty day language into the collective bargaining agreement simply proposed the incorporation
status quo. The Union asserts it withdrew the duty day
proposals when it was assured the status quo
would continue unchanged. The Union argues the City should not be allowed to change
when it gave
assurances the practice would remain unchanged.
The Union also asserts the narrow exceptions of paramedic training and HAZMAT
to the duty day practice should not be allowed to open the door to nighttime training.
The Union also argues the 1990 arbitrator's award determining the scheduling of
activities is not dispositive because the facts herein are significantly different, specifically a
day of the week. The question herein concerns the time at which the routine duty is assigned
duty that was assigned. The Union asserts the firefighters are well trained in airport
though they have not trained at night. The Union also asserts the reasonableness of the
not in dispute because the parties did not put a reasonable standard in the agreement but a
which prohibits rules pertaining to wages, hours and conditions of employment.
City's Reply Brief
The City, in its reply brief, asserts the two previous arbitrator awards on the same
of the collective bargaining agreement are controlling in the instant matter. The City asserts
rationale articulated in the awards support the City's contention it did not violate Article XV
it issued the directive concerning nighttime training. The City stresses there is no duty day
in the collective bargaining agreement and the Union's use of the phrase is the only reference
term. The City also argues the settlement of when firefighters can read recreational material
establish the existence of a duty day. The City also points out that the Union assertion that
in the past
stand-by time has remained free of routine duties ignores the arbitrator award concerning
training and that the City has scheduled training over the lunch period. The City asserts
training at the airport falls within the normal scope of the firefighter's employment and is
for providing fire protection. The City concludes the Union's reliance on Article XV is
and point out that arbitrators have already held that the assignment of duties which fall with
of a firefighter's employment does not violate this provision of the collective bargaining
The City also argues that the record demonstrates the parties have adopted a flexible
to the duty day and undermines the attempt by the Union to have a strict duty day
City also stresses the rejection of the Union's 1993 and 1995 bargaining proposals
day language supports the City. The City also points out that the
Union argument that it only attempted to incorporate the status
quo into the agreement would of
allowed the City to direct employes to have nighttime training at the airport.
The record demonstrates that the instant matter is not the first time that a dispute has
between the parties concerning the duty day and stand-by time. The record also
is not the first time employes represented by the Union have trained during nighttime hours.
1990 award noted that other than the Management Rights provision the only other article on
was the Present Benefits provision, herein Article XV. This provision mandates that the
of benefits not referred to in the agreement that are mandatory subjects of bargaining be
The Union argument is that stand-by is a benefit and must be maintained at the same level it
to entering into the current contract. In order for the Union to be successful it must
stand-by was unequivocal, clearly enunciated and acted upon, and readily ascertainable over
reasonable period of time as fixed and established.
The Union has tried unsuccessfully to bargain into the collective bargaining
provisions which specifically identity the duty day and stand-by. The City has consistently
to incorporate such language into the agreement. The City has even refused to use the
used by the Union as demonstrated by the Policy #123.00 concerning recreational materials:
SUBJECT: USE OF RECREATIONAL MATERIALS, AND OTHER
PURPOSE: The purpose of this policy is to define the time periods for the use of
recreational activities and other associated materials.
The use of recreational materials and other
associated materials shall only be during the
following time periods:
During fire department business days:
Anytime before 7:00 AM
During the hours of 11:00 AM and 1:00
After 4:30 PM
*Recreational materials and other associated materials are defined
Any materials such as newspapers, books, magazines, playing
cards, cross word type puzzles,
computer games, etc. non fire/medical related.
The policy does not use the terms duty day or stand-by but identifies the time frames
department business days." Other employes in the past have been directed to attend training
at night (paramedics and HAZMAT). The Union theory is that this is another inroad into
because the parties have not had nighttime driver training in the past. It is however, another
training and the City has directed firefighters to attend training at night in the past. There is
evidence the Union grieved nighttime paramedic training. There is no evidence the Union
nighttime HAZMAT training. There is evidence the Union grieved new training during
standby and this was rejected by an arbitrator. Thus the undersigned finds there is no
which is unequivocal, clearly enunciated and acted upon, and readily ascertainable over a
of time which prohibits the City from assigning nighttime driver training at the airport.
The Union argument that nighttime driver training is not necessary is also
Nothing in the collective bargaining agreement impedes the City's ability to determine what
is necessary to maintain a safe and efficient work force. While the Union has argued that no
ever gotten lost at the airport, the familiarization sought by the City does not seem
Common sense would dictate that driving at night is different than driving in the daytime.
having found there is not a past practice that prevents the City from assigning nighttime
training at the airport, the undersigned also finds there is no violation of Article XII when
assigned nighttime driver training at the airport.
The Union has also argued that when it withdrew its proposals concerning stand-by
the 1993 and 1995 negotiations it was assured there would be no changes in the duty day.
what the Union thought constituted the duty day and what the City thought constituted the
is clearly in dispute. Reasonably, the City could have concluded that the Union's proposal of
the ability to have nighttime driver training in the Union's stand-by proposal was an
acknowledgement on the Union's behalf that the City already had the right to direct such
Further, the City has steadfastly maintained it did not agree to incorporate stand-by language
to retain flexibility in the assignment of duties. In the City's view there is no change in the
status quo. The undersigned concludes that there was no
meeting of the minds as to what the duty
day status quo was. Therefore, the City's decision to direct
nighttime driver training does not violate
the intent of the parties collective bargaining agreement.
Therefore, based upon the above and foregoing and the testimony, evidence and
presented, the undersigned finds the City did not violate the collective bargaining agreement
it issued the policy ordering employes to engage in nighttime driver training at the airport.
grievance is denied.
The City did not violate the collective bargaining agreement when it issued the policy
employes to engage in nighttime driver training at the airport. The grievance is denied.
Dated at Madison, Wisconsin, this 12th day of August, 1999.
Edmond J. Bielarczyk, Jr., Arbitrator