BEFORE THE ARBITRATOR
In the Matter of an Arbitration Between
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS LOCAL 407
CITY OF WAUKESHA
(Berghoefer Promotional Grievances)
Mr. John Kiel, Shneidman, Myers, Dowling, Blumenfield,
Ehlke, Hawks & Domer, Attorneys at
Law, 700 West Michigan Street, P.O. Box 442, Milwaukee, Wisconsin 53201-0442, for the
Mr. Vince Moschella, Assistant City Attorney, City of
Waukesha, Waukesha City Hall,
201 Delafield Street, Waukesha, Wisconsin 53188, for the municipal employer.
The International Association of Fire Fighters Local 407 ("the Association,") and the
Waukesha ("the City,') are parties to a collective bargaining agreement which provides for
binding arbitration of disputes arising thereunder. The Association made a request, in which
concurred, for the Wisconsin Employment Relations Commission to appoint a member of its
hear and decide two grievances over the interpretation and application of the terms of the
relating to promotions. The Commission designated Stuart D. Levitan to serve as the
arbitrator. Hearing in the matter was held in
Waukesha, Wisconsin on April 7, 1999. A
stenographic transcript was prepared and available to the
parties as of May 6, 1999. The Association filed written arguments on July 23 and
September 2; the
City filed briefs on July 6 and August 30, 1999.
The parties stipulated to the following statements of the issues:
Case 132: Did the city
violate the collective bargaining agreement when it promoted
Daniel Berghoefer to equipment operator on or about May 14, 1998? If so, what is the
135: Did the city violate the collective bargaining agreement when it
Daniel Berghoefer to paramedic on or about January 12, 1999? If so, what is the
ARTICLE 1 RECOGNITION
The City hereby recognizes the Association as the exclusive
bargaining agent for the ranks
of Firefighter, Equipment Operator, Paramedic, Shift E.M.S. Coordinator, Lieutenant,
Lieutenant-Inspector, but excluding the Chief and Assistant Chiefs, and Deputy Chiefs.
. . .
ARTICLE 3 RIGHTS OF EMPLOYER
Section 1: It is agreed that the rights, functions and authority to
manage all operations and
functions are vested in the Employer and include, but are not limited to the following:
a. To prescribe and
administer rules and regulations essential to the accomplishment of
the services desired by the City.
b. To manage and
otherwise supervise all employees.
c. To hire, promote, transfer, assign and
retain employees and to suspend, demote,
dismiss or take other disciplinary action against employees as circumstances warrant.
d. To relieve employees
of duties because of lack of work or for other legitimate
e. To maintain the
efficiency and economy of the City operations entrusted to the
f. To determine the
methods, means and personnel by which such operations are to be
g. To take whatever
action may be necessary to carry out the objectives of the City
Council in emergency situations.
h. To exercise
discretion in the operation of the City, the budget, organization,
assignment of personnel and the technology of work performance.
Section 2: Nothing in this clause shall
derogate from or alter the responsibilities of the Fire and
Police Commission or change the application of other specific provisions of this Agreement.
. . .
ARTICLE 20 SALARY SCHEDULE
. . .
Section 2: The City shall be relieved of paramedic pay in the
event that any employee so qualified
is granted, per such employee's requests, a leave from such program for a period in excess
(30) duty days.
Section 3: E.M.T. or Paramedic trainees
required to attend classes on off-duty time will be paid
at a rate of time and one-half their hourly rate for all actual class time.
EMT-DA State certification will be maintained by all firefighters.
All certifications will be on file
at the fire department on or before November 1st of the renewal year. All
employees will comply with
all management directive to allow recertification at the earliest opportunity.
Section 4: A "regular" equipment operator
shall continue in such position and receive such
premium thereafter until promoted, retired, or removed from the position for just cause. A
equipment operator shall be appointed to operate each first line engine or ladder truck. In
of a "regular" equipment operator's absence, a "relief" operator shall be designated as a
Employees retained on the eligibility list
shall first be utilized as relief operators provided they
are on the same shift as the absent regular driver and are not otherwise needed as paramedics
Paramedics who are promoted to equipment
operator or lieutenant shall have the option to
maintain their paramedic license. These individuals will be utilized as Equipment
Operator/Paramedics or Lieutenant/Paramedics and will be paid based upon the current
Section 5: Longevity is $10.00 per month
after five (5) years of service, then an additional $2.00
per month for each year of service thereafter up to a maximum of 20 years for a maximum
$40.00 per month.
ARTICLE 21 - PROMOTIONS
When a vacancy in the ranks of Equipment Operator, Paramedic,
Shift E.M.S. Coordinator,
Inspector, Lieutenant, or Lieutenant Inspector should exist, such vacancy shall be filled
the following method:
Section 1. A notice of examination to establish an eligibility list
shall be posted on the
Department bulletin board at least thirty (30) days prior to the last day on which applications
acceptable. The notice shall state the date, time and place of written examination. It shall
the eligibility requirements, the type and nature of the test or tests to be conducted, the
manuals or other materials, if any, which will to some extent be included, the general subject
to be covered, the weight to be given each specific test, the graded needed to be qualified
manner of grading to be used.
Section 2. The promotional process as
posted shall be adhered to. The selection shall be made
from those applicants who have qualified, if any. All other qualified applicants shall be
ranked in order
of employer preference. All qualified applicants shall be notified in writing of their ranking.
qualified applicants not selected shall constitute an eligibility list to remain in effect for two
provided the applicant remains capable of fulfilling the position, and subsequent promotions
that period to the same job classification shall be made therefrom according to the highest
subject to Section 4 below. The complete list of those qualified, his/her scores per test and
scores, and his/her ultimate ranking shall be made available to each applicant.
Section 3. The next qualified applicant on
the eligibility list shall be appointed as soon as possible
but not later than 60 days after the vacancy was created unless the City has abolished the
resolution prior to that time, or can establish reasonable justification that the outside
a qualified applicant was necessary. If the position is abolished, no employee will be
assigned to the
Section 4. A vacancy shall not be deemed
to exist unless a new or additional position is created
or an existing position is available due to the death, termination for just cause, or promotion,
resignation or retirement of the employee previously appointed to such position. Actors, per
9 may be utilized by the City to temporarily fill all appointed positions during the absence of
Section 5. The promotional application
forms shall be provided by the Chief.
Three (3) association members are to be
selected by the association per constitution and bylaws
Three (3) management members are to be
selected by the Chief.
On July 27, 1985, the Waukesha Fire Department hired Dan Berghoefer as a fire
grievance concerns two promotions Berghoefer received in 1998 and 1999 which the
claims were wrongfully granted, to the detriment of other unit members.
In descending order, the organizational chain of command for the Department
Chief, an assistant chief, three deputy chiefs, lieutenants, paramedics, equipment operators
On or about March 9 1995, Berghoefer was promoted to the position of Equipment
On October 23, 1995, the Department published a Notice to Develop an Eligibility List for
Promotion to the Position of Paramedic, which included, inter
alia, the following requirements:
1. Applicant shall have a minimum of two (2) years
of seniority on the City of Waukesha Fire
Department as of December 1, 1995. Applicant must have, and maintain, a current
and Wisconsin State Fire Fighter Level II Certification.
2. Applicants must make a four
(4) year commitment of service to the Paramedic Program, and
must be willing to postpone vacations prior to the completion of training.
Pursuant to the provisions of the collective bargaining agreement, a joint committee
the Association and the Department reviewed and approved this posting before it was
Pursuant to that posting, Berghoefer applied and was ranked first on a seven-person
list that was to remain valid for two years from its publication on December 13, 1995. In
1996, Berghoefer stepped down from his position as equipment operator and began
school; after completing his training and passing his state certification examination, he began
as a paramedic on or about June 24, 1996.
On July 17, 1996 the Department published a Notice to Develop an Eligibility List
Promotion to the Position of Equipment Operator, which included, inter
alia, the folowing
1. Applicant shall have a minimum of five (5) years
of seniority as of Monday, September 16,
1996; Applicant must have, and maintain, a current EMT-DA Certification, Wisconsin State
Fire Fighter Level II Certification, and Waukesha Fire Department Certified Equipment
Operator Status. In addition, Paramedics shall have a minimum of two (2) years as a
Waukesha Fire Department Certified Paramedic prior to being promoted to the position of
As before, the joint promotions committee reviewed and approved the elements of this
before it was published.
On August 7, 1996, Berghoefer wrote to Fire Chief Robert Stedman as follows:
This letter is to inform you that I would like to participate in the
upcoming EO exam. I am
aware that since I am a new Paramedic that I cannot be promoted for two years but I feel
would be in my best interest to become a REO for the promotional point value in the future.
have any questions feel free to contact me.
On September 13, 1996, the Department published an eligibility list for promotion to
equipment operator, to remain in effect for two years. Berghoefer ranked third, following
Brewer and Kevin Johnson, and immediately ahead of Jesse Alba and George Behrens.
Brewer and Johnson were promoted to operator in December 1996 and April 1997
respectively. When another vacancy arose for appointment later in 1997, the department
Berghoefer if he would be willing to give up his paramedic position to take the operator
which he was not. The department thereupon promoted Alba on or about September 1,
Another vacancy arose in the early spring of 1998, with the retirement of operator
Poulson. It was just a few months until the expiration of the 1996-98 eligibility list, and
no stationhouse rumors of other retirements coming soon. By this time the department had
concluded that it would not honor the two-year service requirement for paramedics applying
become equipment operators because it felt that provision in the posting to be in conflict with
third paragraph of Article 20, Section 4 of the collective bargaining agreement.
On April 8, 1998, Assistant Chief Allen LaConte distributed the following
Due to the recent retirement of Equipment Operator Duane
Paulson, the name of Fire Fighter/Paramedic
Dan Berghoefer will be recommended for promotion to the position of Equipment Operator
to the Police & Fire
Commission for their approval. The next scheduled meeting of the Police & Fire
Commission is Thursday, May
Dan Berghoefer has become eligible for this promotion due to the
fact that he is the next person
on the eligibility list to be promoted, and he has requested that he be taken out of the
Program, in order to be eligible for this promotion.
On May 7, 1998, Berghoefer wrote to LaConte as follows:
I am writing this to you as a clarification for my reasoning to
request my resignation from the
paramedic program. In the past few weeks there have been many rumors and inaccurate
regarding my resignation that have circulated this department. It has also been mentioned
407 has assumed that I have made some sort of business deal. This is a blatant lie!
After much discussion with my wife, we
have decide (sic) that I should leave the paramedic
program. The reasons are personal in nature and I would prefer not to disclose them at this
Everyone has some difficult decisions to make in life and this was one of those decisions but
time I feel it is the best decision for my family, the fire department and myself. I hope that
enough without going into further detail and please disregard the vicious rumors that seem to
surround this issue.
At no time relevant did Berghoefer exhibit any difficulties at
work. The department at no time
inquired as to the nature of the personal reasons Berghoefer cited for wanting to leave the
program. The department continued Berghoefer in the position of paramedic until May 15,
formally promoted him to equipment operator.
On May 26, 1998, La Conte wrote to the Local 407 Executive Board as follows:
On May 19, 1998 you filed with me Step
No. 2 of a grievance concerning the promotion of "FF/Paramedic
Dan Berghoefer to Equipment Operator". You stated during the delivery of your memo, that
dealt with Article 21 Section 2 specifically the first sentence. The first sentence states "The
process as posted shall be adhered to."
In reviewing Article 21, Section 2, and the
posting for "Notice to Develop an Eligibility List For The
Position of Paramedic" dated Monday, October 23, 1995, I believe we have adhered to the
appears to be an emphasis put on Item 2 of that posting, by Local 407 regarding the (4) year
commitment of service as a paramedic. The City of Waukesha
Fire Department adheres to this item, but
has "in the past", allowed paramedics to break this commitment for personal reasons.
Daniel Berghoefer has forwarded a memo to Chief Stedman requesting to be released from
the 4 year
commitment for personal reasons. Both Chief Stedman and I feel a responsibility to the
community as well
as the members of the department and Equipment Operator Daniel Berghoefer to honor his
In reviewing "Notice to Develop an Eligibility List For Promotion
To The Position of Equipment
Operator" dated July 17, 1996, I feel we have adhered to the posting as well as Article 21
Section 3 by
promoting Firefighter Daniel Berghoefer to Equipment Operator.
With this, I consider Local 407's grievance
regarding the promotion of Firefighter Daniel Berghoefer to
Equipment Operator not justifiable.
There were no further promotions to equipment operator
off the list that was published on
September 13, 1996. Accordingly, Behrens did not get appointed off that list, and at the
time of hearing still
held the rank of firefighter.
On July 17, 1998, the Department published a Notice to
Develop an Eligibility List for
Promotion to the Position of Equipment Operator/Equipment Operator-Paramedic, which
inter alia, the requirement that paramedic applicants "shall have
a minimum of one (1) year as a
Waukesha Fire Department Certified Paramedic prior to being promoted" to the equipment
operator or equipment operator-paramedic position. As before, this posting was reviewed
approved by the joint promotions committee before its publication. On September 11, 1998,
department published the resulting eligibility list for the position of equipment operator, to
effect for a period of two years. The list included eleven qualified applicants, and did not
Berghoefer among its number.
On October 13, 1998, the Department published a Notice to Develop an Eligibility
Promotion to the Position of Paramedic, which included the requirement that applicants
a minimum of 18 months of seniority" with the Department, hold the relevant certifications,
willing to postpone vacations during training. As before, this posting was reviewed and
by the joint promotions committee before its publication. On December 2, 1998, the
published its Eligibility List for the Position of Paramedic, to be in effect for period of two
The list included eight qualified applicants, and did not include Berghoefer among its
On October 30,1998, Stedman wrote to Berghoefer as follows:
To: Firefighter Daniel Berghoefer
From: Chief Robert Stedman
Date: October 30, 1998
Re: Answer to 3rd
This letter is in regards to the
3rd step of the grievance you filed concerning the contradiction of
the Equipment Operator posting dated July 17, 1996 that stated "Paramedics shall have a
of two years as a WFD Certified Paramedic prior to being promoted", and the contract
which states "Paramedics who are promoted to equipment operator or lieutenant shall have
to maintain their paramedic license."
We agree that the language is contradictory.
The fact is the contract language was agreed to in
the new contract that was signed on March 13, 1996 and the intent of the language in the
was to allow paramedics that were promoted the option to maintain their paramedic licenses.
When the posting for equipment operator
was posted on July 17, 1996 we (management) simply
failed to change the language in the posting about paramedics having two years in the
being promoted. The Association promotion committee reviewed the posting and did not see
mistake of the language not being eliminated from the posting even though it violated the
The language in the all promotional postings
prior to the new contract language was there,
because we did not want to lose paramedics from the program because of a promotion after
time and money into their training. The purpose of eliminating the contract language to
paramedics to maintain their license upon being promoted was to eliminate the problem.
In answer to your grievance, we agree the
language in the Equipment Operator posting of July
17, 1996 and the labor agreement Article 20, Section 4 contradicted each other. Our
position is that
paramedics that are promoted to equipment operator and/or lieutenant have the option to
their paramedic license as stated in the labor agreement contract under Article 20, Section 4.
I am anticipating that this reply will end the
grievance process for this situation, but please
contact me if you have any questions.
On December 7, 1998, Personnel Director Thomas Wisniewski wrote to Local 407
Dean Brewer as follows:
Step Grievance Answer Promotion of D. Berghoefer, filed by J.
The above stated grievance was heard at
Step 4 of the grievance procedure, by the Personnel
Committee, during their regularly scheduled meeting on August 10, 1998.
The grievance states the following alleged
"The promotion of Firefighter
Paramedic Berghoefer to Equipment Operator is in violation of
Article 21, Section 2 specifically the first sentence that states, "the promotional process as
shall be adhered to."
The remedy sought is:
"The promotion shall not
Dean Brewer, President of Local 417, argued that Mr. Berghoefer
should not be allowed to
remain in the closed session of the grievance procedure for fourth step. He stated that the
was not about the individual involved but the process. The grievance was filed by Local
407, not an
individual. The stance the Association is taking is on the contract language. Mr. Berghoefer
file the grievance and should therefore not be allowed to stay in the grievance hearing.
Chief Stedman stated that Mr. Berghoefer is
the subject of the grievance and, therefore, should
be allowed to stay.
Mr. Wisniewski stated that, in the past,
when the subject of the grievance is not the grievant, the
subject has been allowed to stay.
It was the decision of Ald. Ripplinger,
without objection from the Personnel Committee, to allow
Mr. Berghoefer to stay for the grievance proceedings.
Dean Brewer stated that during the previous
negotiation process for the 1995-1997 Labor
Agreement, the promotional process was changed. Management has the right to post the
process putting on the posting the qualifications of what is wanted. About every two years
small changes. For example, the equipment operator posting of July, 1996, requires two
years as a
paramedic prior to being promoted to equipment operator. The posting of October 23, 1995
under item 2 stated "Applicants must make a four (4) year commitment of service to the
Program, and must be willing to postpone vacations prior to the completion of training."" In
the person promoted did not fulfill this commitment. Mr. Brewer stated that July 1, of this
would have been two years as a paramedic for Mr. Berghoefer. He was promoted before the
completion of the four year period. This is the basis for the grievance. The Association
acknowledges and understands that there was a mistake in the posting, however, it is not the
Association's fault that the posting was in error. Mr. Brewer stated that the association
there was a mistake, but that the language of the labor agreement (Article 21, Section 2)
needs to be
Chef Stedman stated that the facts of this
case are that in late June of 1996, Firefighter
Berghoefer was promoted to the position of paramedic. He started paramedic training
ending such training in June of that same year. He has served on a daily basis as a
early April, 1998, when Firefighter Berghoefer requested that he be removed from paramedic
for personal reasons. To leave an
individual on paramedic duty after having requested to be
taken off that duty is not an effective way to operate such a vital service. He granted the
The Chief stated that he recommended the
promotion of Firefighter Berghoefer to Equipment
Operator to the Police and Fire Commission, based on revised contract language. He told us
Commission deliberated in closed session and approved the promotion. Subsequently, on
1998, Firefighter Berghoefer was promoted to the position of Equipment Operator, the
currently holds. Since that promotion, Berghoefer continues to maintain his paramedic
allowed by the Labor Agreement.
Chief Stedman stated that the information
the Association presented is correct; that the notice
for promotion to paramedic, as listed in the 1995 posting, requested applicants to make a
commitment to the Paramedic Program. As well, the July, 1996, posting for Equipment
states that applicants shall have two years as a paramedic prior to being promoted.
However, these postings are in error in that
the 1995-1997 Labor Agreement changed the way
paramedics are utilized. The 1995-1997 contract created the actual positions of Paramedic,
Equipment Operator and Lieutenant Paramedic. New language, negotiated into that Labor
Agreement as Article 20, Section 4, made keeping the paramedic license an option.
two year paramedic minimum as listed in the 1996 posting, was no longer necessary and in
Labor Agreement certainly supersedes the erroneous posting.
The Chief stated that management has
promoted other department employees in the past and not
held them to the four year commitment when it involved personal reasons. Shawn Merath
promoted off the same list and attended paramedic training, but requested to be released from
paramedic program for personal reasons. His request was granted and the Association did
The Committee deliberated the facts and
circumstances presented at the hearing and has
determined that there is no contract violation. First, both the association and management
the posting is in error. The intent regarding the language of the Labor Agreement was not in
correctly embodied in the posting. Second, the history of the department shows that this type
consideration and a subsequent promotional action has been done before under the same
contract language without the filing of a grievance, and as such, was mutually acceptable.
contract must be read as a whole. The Committee cannot let stand a posting that is in error,
when weighted against the negotiated Labor
Agreement. Articles 21, Section 2, and Article 20,
Section 4, must be applied together to derive a harmonized meaning of the language.
sections of the contract cannot be isolated from the rest of the agreement and given meaning
independently of the purpose intended by the parties. The grievance is denied.
On December 9, 1998, Berghoefer wrote to Stedman and LaConte as follows:
In April of this year I requested my removal from the paramedic
program for some personal reasons. I
appreciate the fact that you granted my request and by doing so I was able to work through
problems without the added stress. Since then my problems have been rectified and I would
like to return to
the paramedic program if possible. Thank you for your understanding.
On January 12,1998, Stedman wrote to Berghoefer as follows:
This letter is to reply to your request to return to the Paramedic
Program. In April 1998, you requested
to be taken out of the Paramedic program for personal reasons, and we granted that request.
The City of Waukesha Fire Department and
the taxpayers have a substantial investment in the
training you received to become a Paramedic, and therefore we are going to grant your
return to the Paramedic Program, effective immediately. You will need to coordinate with
Chief LaConte training you will need to complete in order to assure that your Paramedic
up to date.
Stedman testified that he had the authority to make
to the paramedic program
without further action by the Police and Fire Commission.
On that same date, Stedman wrote to Local 407 President Brewer as follows:
In April 1998, Dan Berghoefer requested to be removed from the
Paramedic Program for
personal reasons, and the request was approved.
Dan Berghoefer has now requested to return
to the Paramedic Program as his personal problems
have been rectified, and the Department is going to approve his request and place him back
The grievance that was filed by Jeff Sment
in May 1998 regarding the promotion of Dan
Berghoefer was in regards to the fact that Dan Berghoefer had been allowed out of the
Program before he had completed a four year period.
It appears as though the fact that Dan
Berghoefer has requested to return to the Paramedic
Program, and his request is being granted that the Jeff Sment grievance will not be a settled
We are therefore requesting that the Association withdraw your request for arbitration as
on December 23, 1998.
It costs the city between approximately
$30,000 and $60,000 to put someone through a full
paramedic training program, considering salary for time not providing firefighting services,
to maintain staffing levels, registration, mileage, room and board.
POSITIONS OF THE PARTIES
In support of its position that the grievances should be sustained, the Association
avers as follows:
The collective bargaining agreement establishes an unambiguous
promotional procedure which, if followed,
would have barred Berghoefer's promotion to equipment operator. Article 21, Section 2
plainly requires that
the promotional process shall be followed without exception. But while the paramedic
posting of October 23
1995 required a four-year commitment, Berghoefer was allowed to resign after less than two
paramedic service. By accepting Berghoefer's resignation without which he would
not have been eligible for
promotion to equipment operator -- the city violated the collective bargaining agreement.
The City acted in blatant contradiction of
the plain and unambiguous language of the
paramedic posting when it allowed Berghoefer to resign from the paramedic service. But for
violation of the collective bargaining agreement, Berghoefer would not have been promoted
equipment operator. Denying the grievance
challenging Berghoefer's promotion to equipment operator allows
the city to violate the
collective bargaining agreement, it grants Berghoefer a windfall and it deprives Behrens of
economic benefit he would have received but for the City's failure to comply with the
The City places inordinate emphasis on a
single phrase and argues that the requirement for two
years of paramedic service in the equipment operator posting was somehow a mistake. But
collective bargaining agreement and the posting are easily harmonized, and both provisions
satisfied when a paramedic is promoted to the position of equipment operator after
years as a paramedic. It must be concluded that the city violated the collective bargaining
by promotion Berghoefer to equipment operator before he had completed two years as a
paramedic. The city should not be encouraged to violate the promotional process as posted
disregard provisions of the contract as it did when it promoted Berghoefer. The grievances
be sustained and a make whole relief ordered.
The City's claim of mistake does not
provide a basis on which to deny the grievance regarding
Berghoefer's promotion to equipment operator. The city's argument that the qualification
two years as a paramedic prior to appointment as an equipment operator conflicts with the
contractual provision allowing concurrent status as a paramedic and equipment operator must
The city's claim of mistake in the posting is absurd, a transparent and bold attempt to justify
violation of the agreement. The city should be admonished for its blatant attempt to
terms of the agreement, and the grievance over Berghoefer's promotion to equipment
Accepting the city's position would, in
effect, rewrite the agreement and eliminate the sentence
requiring that the promotional process shall be adhered to. But the arbitrator has no authority
delete select provisions from the contract, and is obligated to interpret the contract in a way
give meaning to all its provisions.
The promotion of Berghoefer to equipment
operator before he fulfilled his commitment to the
paramedic program, which was a posted requirement, violated the posting language of the
bargaining agreement. The arbitrator should not allow the city to rewrite the collective
agreement to eliminate the provisions regarding adherence to the posting.
The claim that Berghoefer's removal from the paramedic program
was a temporary leave due to
personal reasons is a transparent attempt to avoid the two-year qualification period for
equipment operator and an obvious effort to avoid compliance with the paramedic
procedure held after Berghoefer's resignation. Berghoefer did not ask for a leave from the
program; he resigned from the program. The city's claim that it was a leave, and its denial
effort to prematurely qualify Berghoefer for promotion to equipment operator have several
problems. Since Berghoefer resigned from the paramedic service, his request to return to the
should not be used as a substitute for the promotional process set by the earlier posting.
The city's refusal to live up to its
contractual obligations set off a chain of successive contract
violations. The City tries to justify each and every violation with wanting and untenable
The first violation was when the City
allowed Berghoefer to escape his four year commitment
to the paramedic program, in an effort to quality for promotion to equipment operator. Then
promoted Berghoefer even though he had not completed the two-year qualification period as
certified paramedic. Then it allowed Berghoefer to return to the paramedic program from
resigned, without competition, claiming he had merely been on leave.
This series of extensive and far-reaching
violations have harmed several bargaining unit members,
especially one (George Behrens) who would have been promoted to equipment operator had
required Berghoefer to fulfill his qualification period,
Ordering the return of Berghoefer to the
rank of firefighter/paramedic and the promotion of
Behrens raises questions regarding the role of the Police and Fire Commission. Another
would be to order the City to make the appropriate premium pay adjustments already
a way to make the affected bargaining unit members whole. Regardless of remedy, the City's
of the contract should not be tolerated.
In support of its position that the grievances should be denied, the City asserts and
The Association errs in asking that the equipment operator posting
be followed because the
posting itself violates the plan language of the collective bargaining agreement by its
two years of service as a paramedic before promotion. By allowing paramedics who have
promoted to equipment operator to maintain their paramedic license, Article 20, Section 4
the previous provision and abolished the requirement of two years of service as a paramedic
becoming an equipment operator. The issue for the arbitrator is whether the contractual
of adherence to the posting can negate the language of Article 20, Section 4, which is
contrary to the
posting. The City's position is that the job posting cannot negate a provision of the
bargaining agreement. Thus, Article 21, Section 1, which requires adherence to the posting,
be understood to mean that the posting shall be adhered to, unless it violates the collective
The Association also errs in alleging the collective bargaining
agreement was violated when the City
allowed Berghoefer to return to the paramedic program in January 1999. Because he
continued to be licensed
as a paramedic, and because the City wanted to protect its investment in Berghoefer's
paramedic training, his
action to step down as a paramedic should properly be understood as taking a leave, rather
than a resignation.
Thus, his return to the program was not a violation of the collective bargaining agreement
because the Chief
has the right under Article 20, Section 2 to grant such leaves. The Association's proposed
construction of the
collective bargaining agreement would elevate Article 21, Section 1, requiring adherence to
the job posting, to
a position superior to that of the leave provision, violating the cardinal rule of contract
construction that all
provisions must be harmonized whenever possible. Here the fair and reasonable
harmonization is that
"promotions shall follow the job posting unless someone is returning from a leave."
The Association also errs in seeking
remedies that are unjust and not permitted by the collective bargaining
agreement. The Arbitrator cannot demote Berghoefer from his position, as such authority
rests only with the
Police and Fire Commission. And the Association's bid to have George Behrens receive
premium pay without
performing the duties of the higher position would be an injustice which the contract does not
It would also be an injustice to use the authority of the Arbitrator
to settle a dispute which is
internal to the Association, where the real dispute is between Association brothers Behrens
Berghoefer. The practice of allowing an individual association member and the Association
two grievances over the same issue should not be allowed to succeed. It is an abuse of the
procedure to take conflicting positions to gain that which the contract does not allow, namely
equipment operator pay for a person not performing that job.
The Association's remedy regarding the
paramedic position, payment of premium pay to the next
person on the list, shares the "higher pay for no work" injustice with the equipment operator
promotion. It creates a pay position where one does not now exist, which the contract does
for. The most prudent route is to deny the grievance as inconsistent with the plain language
contract, which allowed for Berghoefer's right to return from "leave" prior to the next
person on the
list becoming a paramedic.
Accordingly, because the express terms of
Article 21, Section 4 allow a paramedic to be
promoted to paramedic/equipment operator, and because the express terms of Article 20,
allow a paramedic to take a leave from the program and return, the City did not violate the
bargaining agreement in any regard and the grievances should be dismissed.
In its reply brief, the Association argues further as follows:
The claim that the equipment operator posting mistakenly included
an eligibility requirement of
two years of paramedic service is not persuasive. The City has the burden of proving that
requirement was a mistake, but only makes a series of arguments that raise more questions
answer. If the inclusion of an eligibility requirement was a mistake, isn't it reasonable to
at least one of the six people who reviewed it would have so noticed before the posting was
distributed? And even after the posting, no one objected to the service requirement; in fact,
Berghoefer and Stedman even validated its inclusion. The claim of mistake is not even
is plainly an eleventh hour effort to justify the City's violation of the contract. Further, the
requirement should be enforced even if it is assumed that it was mistakenly included in the
operator posting. Any mistake that might have occurred was the fault of the City, which
with its consequences.
Contrary to the City's claims, the Association's position does not
leave any contract provision
without meaning, in that it is easy to reconcile adherence to the posting and the provision
paramedics to serve as equipment operators. Once a bargaining member has completed two
paramedic service they are eligible for promotion to equipment operator.
The suggestion that an award to the
Association leaves the City free to change wages, hours or
working conditions via a job posting is illogical. And the issue of Berghoefer's licensure as a
paramedic is irrelevant.
Contrary to the claim of the City,
Berghoefer did not seek nor was he granted a leave from the
paramedic program; rather, as all the evidence clearly shows, he quit the program. Neither
the City treated his resignation as a request for leave until it was convenient for them to do
arbitrator should resist their effort to rewrite history.
The remedy which the Association has
recommended is both fair and legal. Because Behrens was
harmed by Berghoefer's promotion to equipment operator, he should receive the premium
pay he was
unjustly denied until such time as he is promoted. And because Berghoefer's return to the
program unjustly denied another bargaining unit member the opportunity for training and
the next individual who would have been sent to paramedic school and received promotion
receive paramedic premium pay until such time as that individual becomes a paramedic.
whole remedies are consistent with well-established principles of labor law. They are narrow
reasonable means of rectifying the results of the City's wrongdoing.
The grievances should be sustained and the
In its reply brief, the City argues further as follows:
There are two major irrelevancies in the Association's brief that
the arbitrator should ignore. The fatal
flaw in the Association's brief is its complete and utter failure to make more than a minimal
mention of the
obvious conflict between the two job postings and the other language of the collective
By ignoring the importance of Article 20, Section 4, the Association brief is exposed in its
true nature a
blatant attempt to distract the Arbitrator with two red herrings.
The Association's proposed construction of the contract violates
the rules of contract
construction because it would negate the language of Article 20, Section 4 which,
contrary to the
Association's construction, eliminates the two-year deferral of equipment operator/paramedic
That deferral is directly contrary to the express language and history of this provision.
The Association's construction would also
negate the language of Article 20, Section 2, which
allows for leaves from the paramedic program. It also violates Articles 23 and 25, in that its
argument that there was a joint attempt to amend the contract via the job descriptions is
by the contract.
Contrary to the fatal flaws in the
Association's arguments, the City's proposed construction does
not violate any rules of contract construction. The City merely asks that the arbitrator
language in a job posting that is contrary to the contract. Whether that language was inserted
intentional act or mistake is irrelevant; all that matters is that it is directly contrary to
Section 4, (unenumerated) paragraph 3. Acceptance of the City's construction will maintain
primacy of the contract.
Accordingly, the arbitrator should dismiss
This grievance links personnel transactions over a three-year
period, making the association's
case complex and many-layered. Its essential nature is as follows: the contract requires
to the posting process; the 1995 paramedic posting required a four-year commitment; by
this promotion in 1996, Berghoefer agreed to serve as a paramedic at least until 2000; the
operator posting required that paramedics have at least two years of service; in 1998 the city
Berghoefer to void his four-year commitment to the paramedic program, and avoid the
requirement for paramedic applicants, in order to become eligible for the operator
therefore the 1998 promotion of Berghoefer to operator violated the contract. The
analysis of Berghoefer's 1999 promotion to paramedic is more direct, focusing on his direct
readmission to the program and his non-compliance with the paramedic posting of October,
The Association is correct in its central allegation -- Berghoefer accepted a paramedic
in 1996 knowing it entailed a four-year commitment, which he broke in order to avoid the
requirement in the 1998 posting for operator and become eligible for that promotion.
department knew what he was doing and why, and actively participated through its favorable
treatment of Berghoefer throughout the promotional process.
But do the actions by the department and Berghoefer voiding the four-year
direct bearing on the operator promotion? After all, given his overall seniority, Berghoefer
have been eligible for the operator promotion even without being a paramedic. What impact
fact that Berghoefer was a paramedic at the time of his application have on the ultimate
of his application?
Berghoefer began fulfilling his four-year commitment to working as a paramedic on
1996. Seven weeks later, he wrote to Fire Chief Stedman for permission to participate in the
upcoming operator exam. "I am aware that since I am a new Paramedic that I cannot be
for two years," he wrote, "but I feel it would be in my best interest to become (a relief
the promotional point value." Berghoefer took the equipment operator test. In the eligibility
published September 13, 1996, to be effective for two years, Berghoefer ranked third.
At Article 21, the collective bargaining agreement's discussion of the promotional
repeatedly uses the phrase, "qualified applicants." Indeed, it is only "those qualified
are not initially selected who "constitute an eligibility list" that remains in effect for two
Clearly, only "qualified applicants" can be included in the written eligibility list.
The two applicants ahead of Berghoefer, Brewer and Johnson, were promoted in late
and spring 1997 respectively. But when another vacancy arose for appointment later in
1997, the city
didn't promote Berghoefer; instead, it asked Berghoefer if he would be willing to give up his
paramedic position to take the operator promotion, which he was not. The department
promoted Alba on or about September 1, 1997. That is, the department passed over
appointed Alba, explicitly and precisely because Berghoefer was a paramedic
without the stated two
By its actions regarding the September 1997 promotion, the department thus
that Berghoefer was not a qualified applicant even as of that date. The City's problem is that
year prior, in September 1996, the department had published an eligibility list for the
position which included Berghoefer as the third-ranking qualified applicant.
This is could not do.
There were no further promotional opportunities until the early spring of 1998, when
equipment operator Duane Poulson retired. It was just a few months until the expiration of
98 eligibility list. If there were no further retirements, this would be the last
promotion to be taken
off that list; if the city held to its position as of the September 1997 vacancy, Berghoefer
without promotion despite his high ranking.
At that time Berghoefer was still a few months short of the two-year tenure at the
Poulson's retirement. However, being a paramedic is not a requirement for the equipment
promotion the requirement is only that if you are a paramedic, you
have at least two years' service.
And Berghoefer well met the postings' overall seniority requirement of only five years, less
his actual service seniority.
Berghoefer then resigned as a paramedic for reasons that were "personal in nature."
department, which had invested approximately $30,000 in Berghoefer's training and
a paramedic, did not make a single inquiry into the nature of what would cause Berghoefer to
such a drastic act as to "leave the paramedic program."
Consistent with its beliefs as exemplified in the September 1997 promotion, the
even acknowledged at the time that Berghoefer stepped down as a paramedic that he did so
purpose of appointment as an equipment operator. Assistant Chief LaConte's April
8, 1998 memo
announcing Berghoefer's operator appointment explains that Berghoefer "has requested that
taken out of the Paramedic Program in order to be eligible for this
promotion." (emphasis added)
The department says it determined, and so maintained throughout this proceeding,
requirement for two years' service for applicants who were paramedics was a mistake, a
a time when someone could not be both a paramedic and lieutenant. The department contends
requirement in the posting was somehow in conflict with the last paragraph of Section 4,
and that the provision is thus invalid.
The provision upon which the department relies as nullifying the two-year
applicants who were paramedics is as follows:
Paramedics who are promoted to equipment
operator or lieutenant shall have the option to
maintain their paramedic license. These individuals will be utilized as Equipment
Operator/Paramedics of Lieutenant/Paramedics and will be paid based upon the current salary
The city may well be right that the purpose for the two-year requirement was in the
context, and that the reason for the requirement was no longer present. The city is also
the contractual provisions of the collective bargaining agreement would supersede the details
position description or job posting. But the city is wrong is claiming that the language of the
collective bargaining agreement quoted above conflicts with the requirement in the posting;
no longer be a contractual necessity for the provision, but that is far different from saying
provision is contractually barred. By its text, this paragraph is clear
and unambiguous, and has no evident bearing on whether a job posting for equipment
include a qualification that applicants who are paramedics have met certain requirements for
of service in that capacity.
The collective bargaining agreement requires that "the promotional process as posted
be adhered to." The promotional posting for the position of equipment operator included the
requirement that paramedics "shall have a minimum of two years" as a department paramedic
to appointment. This was a valid requirement that the department was required to honor.
The department let Berghoefer take the operator test in September 1996, knowing that
not eligible for appointment. I find no violation or offense in this action. There's nothing
allowing an ambitious employe to take a practice exam provided it stays a
practice exam during
the period of ineligibility,
There are a number of variables and overlapping possibilities which would define the
of such a period of ineligibility; there may well situations where the department may publish
eligibility list which includes parties not eligible for appointment as of the date of the
test. But the
department may not publish their names on the list until the date of eligibility under
the terms of the
But the department did more than just let Berghoefer take a test everyone
was not eligible for. It also included him on the official eligibility list published on
1996, the basis of his May 7, 1998 appointment. In so doing, the city violated the terms of
collective bargaining agreement requiring adherence to the posting process.
The collective bargaining agreement, at Article 21 Section 2, states that, "all qualified
applicants shall be notified in writing of their ranking." At the time the department notified
Berghoefer in writing of his ranking on the operator test, Berghoefer was not in fact
Berghoefer was a paramedic with less than two years' service, who had a continuing
commitment to the paramedic program. As Berghoefer was not a qualified applicant, the
violated the collective bargaining agreement by including him on its published rankings for
operator position, and using that ranking to promote him on May 7, 1998.
Consideration of the second grievance requires a less detailed analysis, because its
nature is conveyed in just four short memos over a six week period.
On December 2 1998, the department published the new eligibility list for paramedic,
in effect for two years. Berghoefer wasn't on the list. A week later, Berghoefer wrote to
and LaCronte saying that his former personal problems "have been rectified," and saying he
like to return to the paramedic program if possible." On January 12, 1999, Stedman wrote
Berghoefer that "we are going to grant your request effective immediately."
That is, the department promoted Berghoefer six weeks after publishing an eligibility
did not include him as a qualified applicant. It is hard to see how this is consistent with the
department's contractual duty to adhere to the posting process.
Oddly, however, the department apparently believed it was doing the Association a
restoring Berghoefer to the paramedic program, because this meant he would once again be
his original four-year commitment. Accordingly, Stedman asked the Association to withdraw
initial grievance, which it understandably declined to do.
In explaining Berghoefer's return to the paramedic program six weeks after it
eligibility list which did not include him as a qualified applicant, the city contends that
original departure from the program was not a resignation, but in fact merely some sort of
The city's claim that Berghoefer never resigned as a paramedic, but instead took a
entirely without support in the record. Not only is there no evidence that Berghoefer took a
there is affirmative and undisputed evidence that Berghoefer himself understood that
The collective bargaining agreement (Article 20, Section 2) provides that the city is
of the pay differential for any paramedic who "is granted, per such employee's request, a
such program for a period" over thirty days. Berghoefer made no such request, and the city
no such leave. His May 7 letter to Chief LaConte twice refers to "my resignation," and
Berghoefer's explanation of why he and his wife decided "that I should leave the paramedic
program." At no point does Berghoefer refer to, or ask for, a leave of any kind.
Moreover, the department's actions are inconsistent with a belief that Berghoefer had
legitimate performance issues justifying a leave for personal reasons. If the department
was cause for Berghoefer to cease performing paramedic duties, it would not have continued
that position until his promotion to operator more than a month later.
Berghoefer did not request and he was not granted a leave, temporary or otherwise,
paramedic program. I find as a fact in this record that Berghoefer resigned from the
program and that the city accepted his resignation.
By its action restoring Berghoefer to the paramedic program on January 2, 1999, the
department denied some other firefighter the opportunity for training and promotion.
record is silent on that individual's identity, thus complicating an already-complicated issue
Having found that both grievances are meritorious and must be sustained, I now
issue. There is some ambiguity in the record as to the relationship of my authority with that
Waukesha Police and Fire Commission. The city states and the Association acknowledges
demotion of Berghoefer from the equipment operator position is under the exclusive
the Waukesha Police and Fire Commission. I decline to issue any award that would
jurisdiction. However, Chief Stedman testified that promotion to the position of paramedic
go to the PFC for its review and approval. For its part, the Association does not seek an
ordering Behrens' appointment as an equipment operator, but that he be made economically
until such an appointment is forthcoming.
Whatever my jurisdiction on appointment and demotion, it
is well-settled I have sufficient
authority to order a remedy which provides economic redress to someone improperly denied
equipment operator promotion.
The record establishes that firefighter George Behrens would have been appointed
operator in the spring of 1998, but for the promotion of Berghoefer. He has thus suffered
harm due to the department's actions, and must be made whole to the extent authorized by
The record does not establish the identity of the firefighter denied the training and
opportunity lost when the department improperly returned Berghoefer to paramedic status on
12, 1999. The parties will have to clarify this in a supplemental proceeding.
Accordingly, on the basis of the collective bargaining
agreement, the sworn testimony and
record evidence and the arguments of the parties, it is my
1. That the grievance in Case 132, MA-10555 is sustained, in that the city
Article 21, Section 2 by including Dan Berghoefer on its published rankings for the
operator position and using that ranking to promote him to equipment operator on May 7,
2. That the grievance in Case 135, MA-10734 is sustained, in that the city
Article 21, Section 2 by returning Berghoefer to the paramedic program on January 12,
he was not included among the qualified applicants on appropriate the Eligibility List for the
of Paramedic which the department published on December 2, 1998.
3. That as remedy in Case 132, the city shall make George Behrens whole as to
and other benefits, as though had been promoted to the position of equipment operator on
1998, and continuing until such time as he is promoted to such position.
4. That as remedy in Case 135, the City shall make whole the firefighter who
received the paramedic promotion on or about January 12, 1999 but for Berghoefer's return
5. For the purpose of implementing these remedies, I shall retain jurisdiction
12, 2000, unless prior to that time either party requests my further participation in a
proceeding, or both parties release me.
Dated at Madison, Wisconsin this 24th day of November, 1999.
Stuart Levitan, Arbitrator