BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 400
CITY OF FOND DU LAC
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks and Domer, Attorneys at
Law, by Mr. John B. Kiel, on behalf of International Association of
Fire Fighters, Local 400.
Davis & Kuelthau, S.C., Attorneys at Law, by Mr. William G.
Bracken, Coordinator of Collective Bargaining Services, on behalf of the City of
Fond du Lac.
International Association of Fire Fighters, Local 400, hereinafter the Union,
Wisconsin Employment Relations Commission appoint a staff arbitrator to hear and decide
disputes between the Union and the City of Fond du Lac, hereinafter the City, in accordance
grievance and arbitration procedures contained in the parties' labor agreement. The City
subsequently concurred in the requests and the undersigned, David E. Shaw, of the
staff, was designated to arbitrate in the disputes. A hearing was held before the undersigned
September 14, 1999, in Fond du Lac, Wisconsin. At hearing,
the parties agreed to combine the grievances for the purposes of hearing and decision
and waived the
thirty (30) day time limit for issuance of an award. A stenographic transcript was made of
and the parties submitted post-hearing briefs in the matter by January 10, 2000. Based
evidence and the arguments of the parties, the undersigned makes and issues the following
The parties agreed there are no procedural issues, but were unable to agree on
the substantive issues.
In Case 150 (Paramedic Captain Fill-In Grievance), the Union would frame the issue
Does the City of Fond du Lac violate the agreement when it
allocates a portion of a 24 hour
shift work opportunity to the off-shift position of paramedic captains? If so, what is the
The City would frame the issues as being:
Did the City violate Article XXVII, rights of employer, when
assigned the paramedic
captain to fill in for a vacancy created on March 19th, 1999? If so, what
is the remedy?
The Arbitrator frames the issues as:
Did the City violate the parties' Agreement when it assigned
Paramedic Captain to fill part
of a 24-hour vacancy in a 56 hour per week position during his normal work hours on March
1999? If so, what is the appropriate remedy?
In Case 151 (Fire Prevention Officer Fill-In Grievance), the Union would frame the
Does the City of Fond du Lac violate the agreement when it
allocates a portion of a 24 hour shift
work opportunity to the off-shift position of fire inspector? If so, what is the appropriate
The City would state the issues as being:
Did the City violate Article V, Section 3, paragraph 3, when
assigned the fire prevention
officer to engine 3 between the hours of approximately 0800 to 1330 on March
19th, 1999? If so,
what is the remedy?
The Arbitrator frames the issues as follows:
Did the City violate the parties' Agreement when it assigned a
Fire Prevention Officer to fill part
of a 24-hour vacancy in a 56 hour per week position during his normal work hours on
1999? If so, what is the appropriate remedy?
The following provisions of the parties' Agreement are cited:
Purpose of Agreement
It is the intent and purpose of the parties hereto that this
Agreement shall promote and
improve working conditions between the City and the Fire Fighters, and to set forth herein
pay and other terms and conditions of employment to be observed by the parties hereto.
. . .
. . .
3) Definition of a work week. The normal
work week for employees working on the
platoon system shall consist of fifty-six (56) hours of duty and shall be on the following
Each twenty-four (24) hour period on duty shall be followed by a twenty-four (24) hour
rest, except that after the third twenty-four (24) hour period of rest there shall be three (3)
consecutive twenty-four (24) hour periods of rest, it being the intent that each man's schedule
be a continuation of the schedule in effect from January 1, 1967.
The normal work week for Fire Prevention Officers shall be
forty (40) hours of duty and shall
consist of five consecutive eight (8) hour work days beginning on Monday and ending on
Administration of these schedules and resultant assignments
be the responsibility of the
Fire Chief (Chief) or Assistant Fire Chief (Asst. Chief) as may be designated by the Chief.
. . .
Rights of Employer
It is agreed that the rights, functions and authority to manage
operations and functions are
vested in the employer and include, but are not limited to, the following:
1) To prescribe and administer reasonable rules and
reasonable regulations essential to
the accomplishment of the services desired by the City Council.
2) To manage and otherwise supervise all employees in the
3) To hire, promote, transfer, assign and retain employees
and to suspend, demote,
dismiss or take other disciplinary action against employees as circumstances warrant.
4) To relieve employees because of lack of work or for
other legitimate reasons.
5) To maintain the efficiency and economy of the City
operations entrusted to the
6) To determine the methods, means and personnel by
which such operations are to be
7) To take whatever action may be
necessary to carry out the objectives of the City
Council in emergency situations.
8) To exercise discretion in the operation of the City, the
assignment of personnel and the technology of work performance.
Nothing contained in this management rights clause should be
construed to divest Local 400,
Fond du Lac Fire Fighters, of any rights granted by Wisconsin Statutes.
. . .
Maintenance Of Benefits
The City agrees that, as a result of this contract, no benefits
previously granted employees by
the City shall be either withdrawn or reduced unless specifically stated in the collective
The City maintains and operates the Fond du Lac Fire Department, which provides a
of services to its citizens, including emergency medical services and fire suppression
Personnel in the Department are assigned to either forty hours per week or fifty-six hours per
schedules. The classifications that work on the forty hours per week schedule are Fire
Assistant Fire Chief, Fire Prevention Officer (FPO), Training-Safety Officer (TSO),
Captain, Coordinator of Administrative Services and Fire Records Clerk. They work 7:00
4:00 p.m., Monday through Friday. The "line" or "platoon" positions include the
Shift Commander, Captain, Lieutenant, Motor Pump Operator, Firefighter/Paramedic, and
Firefighter, which work fifty-six hour per week duty schedules consisting of 24 hours on
a.m. 8:00 a.m.) followed by a 24 hour rest period, except that after the third 24
hour period of rest,
there are three additional consecutive 24 hour periods of rest.
Line personnel are assigned to one of three platoons and staff three fire engines, three
ambulances, one tower car and one command car, and operate out of three fire stations in the
There are normally 20 line personnel assigned to a platoon and the Department tries to
minimum staffing level of 17 line personnel. Minimum staffing vacancies are generally
filled from a
24-hour call list if the vacancy is 18 hours or more and from a short-term call list if the
vacancy is less
than 18 hours. Each shift maintains separate call lists. Personnel on the 40 hours per week
are not on the call lists.
A second FPO position was created approximately 10 years ago and the work
the FPO's was changed to the 40 hours per week schedule. Their schedules are altered at
accommodate inspections. The primary functions of the FPO's are to perform state fire
fire prevention work and public relations activities. In the past, the FPO's had not remained
in their training and were used very little as firefighters. There was some discussion in 1997
making the FPO positions civilian positions, and this along with the Union's concerns about
trying to take overtime opportunities from line personnel, led to discussions between the
the Chief regarding the FPO position. These discussions led to the following memorandum
Understanding of Conditions of Employment
For Fire Prevention Officer
Promotions: 24 month promotional list
will be established. Appointed employees must remain
FPO for a minimum of two years unless promoted to another position. FPO may return to
position/rank after 2 year requirement when opening exists, FPO has priority over
Training: FPO shall keep current of
fire fighting/EMT training/duties as determined by
the Chief. All training will be on duty or under existing training agreement.
Overtime: FPO may be used during
normal hours (depending on their daily schedules)
for fires/emergencies and out of City ambulance transfers. FPO's are not eligible for 24
backs and may not occupy a partial 24 hour call in need. FPO returning to line work will
position on 24 hour list in same ratio as when departed.
Ex. Departed @#20, shift total
(minus departing FPO) @ 360
Returning @#31 new shift total (minus
returning FPO) @560
(20 x 560)/360 =
31.111 rounded to nearest whole
FPO may be called in on over-time for fire inspection duties, also
major fires/disasters as all fire
department employee's (sic) can be.
We hereby agree to the above additional conditions of
employment for the Fire Prevention
Thomas Kania /s/ 7-7-97
David Flagstad /s/ 7-7-97
President L-400 Dated
Fire Chief Dated
The Paramedic Captain position was created effective March of 1999 and is a
week position. The main duty of the position is to oversee the Emergency Medical Services
and the Paramedics. The work schedules of both the FPO's and the Paramedic Captain may
altered based upon their workload and duties. Both positions are in the bargaining unit and
by the parties' Agreement.
At issue in these cases are the Department's use of FPO Vermeulen and Paramedic
Peterson on March 19, 1999, when the illness of one of the line personnel reduced line
staffing to 16.
Rather than calling in someone on overtime to fill the vacancy, Vermeulen was assigned to
as Lieutenant on Engine 3 between 8:00 a.m. and 1:30 p.m. and Peterson from 1:30 p.m. to
p.m. A 56-hour employe, Paramedic Bergen, was called in on overtime from 10:00 p.m. to
the next morning.
The Union filed the instant grievances alleging that the use of FPO Vermeulen on
1999, to fill the line staffing vacancy violated the 1997 FPO Understanding and the
Benefits provision in the Agreement, and that the use of Paramedic Captain Peterson in that
on that date also violated the Maintenance of Benefits provision of the parties' Agreement.
grievances were processed through the parties' grievance procedure and ultimately to
before the undersigned.
POSITIONS OF THE PARTIES
The Union first asserts that the City's decision to regularly assign 40 hour per week
to fill vacancies in 56 hour per week positions represents a reduction in benefits in violation
XXIX, Maintenance of Benefits. Arbitrators have long recognized that overtime
represent a special benefit prized by employes and the Commission has recognized that
dealing with the assignment of overtime opportunities concern mandatory subjects of
Here, the parties agreed to contract language specifically preserving the level of benefits
bargaining unit members at the contract's execution. The level of benefits enjoyed by
assigned to a 56 hour week included the opportunity to fill 56 hour per week vacancies
restore the minimum staffing of the
Department. The decision to regularly use 40 hour per week personnel to fill 56 hour
vacancies represents a sudden reduction in such benefits. Nothing in the Agreement gives
the specific right to reduce overtime exposure by assigning 40 hour per week personnel to
that have historically been held by 56 hour per week employes.
The decision to assign the FPO's to fill vacancies in the 56 hour per week positions
represents a violation of the "Understanding of Conditions of Employment for Fire
Officer." That mutually agreed-to understanding limits the use of FPO's in the 56-hour per
"Overtime: FPO may be used during normal hours (depending on
their daily schedules) for
fires/emergencies and out of City ambulance transfers. FPO's are not eligible for 24 hour
and may not occupy a partial 24 hour call in need." (Jt. Ex. 18).
. . .
"FPO may be called in on over-time for fire inspection duties,
also major fires/disasters as all fire
department employee's (sic) can be." (Jt. Ex. 18).
The Union made it clear that language was intended to prevent the use of FPO's in 56
hour per week
capacities in Kania's e-mail to Chief Flagstad:
"Attached is a copy of what I intend on iforming (sic) the
membership/interested applicants on
the defined conditions of employment for the FPO position. Look it over, we can change
needed, I believe the idea's are what our discussions (sic) and were our intent. Look at the
underlined item. We didn't disscuss (sic) specifically FPO's shortening another employee's
OT, but I don't think it was your/our intent. Any problems let me know." (Jt. Ex. 19).
The Chief's e-mail response was, "Looks good."
In this case, the assignment of Vermeulen to the 56 hour position between
8:00 a.m. and 1:30
p.m. and of Petersen between 1:30 p.m. and 10:00 p.m. on March 19th
shortened the overtime
available to a 56 hour per week employe, Bergen. Even the Chief agreed on
was the case. Bergen did not receive the full 24 hours of overtime because Vermeulen and
occupied "a partial 24 hour call-in need", violating the Understanding regarding FPO's.
The Understanding regarding FPO's prevents their use as a resource to reduce
cross-examination, the Chief conceded that on March 19th, Vermeulen was
not assigned to respond
to a fire, emergency or out of City ambulance transfer; rather, he was simply assigned to
as a crew member on Engine 3. While the City's Director of Human Resources, Ben
that the parties reached an understanding that permits the use of FPO's to "man" apparatus
"stand by" basis as part of its ability to use those people to "respond to" a fire or an
Mercer also recognized that there is a distinction between those scenarios and responding to
fire. The City, however, never bothered to incorporate a right to use FPO's to man
apparatus on a
stand by basis into the Understanding regarding FPO's. Since Vermeulen was not used to
to a fire, emergency or out-of-town ambulance transfer, he was obviously assigned to Engine
March 19th to reduce overtime, and the Chief conceded as much (Tr. at
167; 184). Thus, the City
expanded the terms of that Understanding beyond its intended scope. Arbitrators have
employer efforts to unilaterally change scheduling practices to avoid payment of overtime.
Carnegie v. Illinois Steel, 5 LA 402, 406 (1946).
The parties' intent is clear and according to the Understanding, the use of FPO's
normal hours is limited to "fires/emergencies and out-of-town City ambulance transfers."
language does not give the City the right to reduce overtime opportunities available to 56
week employes by using FPO's to man or staff apparatus on standby. The Understanding
unambiguously prevents the use of FPO's as a source of reducing overtime in providing that
"may not occupy a partial 24-hour call in need."
The Union concludes that on March 19, 1999, the City began a new program of
40-hour per week personnel to stand by and man vacancies on apparatus previously filled by
per week employes, and thereby reduced overtime opportunities available to 56-hour per
employes, reducing their wages earned. That overtime opportunity benefit is so important to
Union that it negotiated the Understanding regarding FPO's in order to emphasize a
already enjoyed under the Maintenance of Benefits clause in the Agreement.
In its reply brief, the Union notes that the City agrees that it would be a violation of
agreement if it had utilized the FPO or Paramedic Captain after their normal eight hours, but
over whether the use of FPO's and the Paramedic Captain to reduce overtime of regular
even when the former do not earn overtime, violates the agreement. While the City claims
Management Rights clause and past practice vest it with the authority to schedule work,
assigning regular firefighter and paramedic duties to the FPO and the Paramedic Captain, the
failed to satisfy the burden of proof necessary to establish the existence of such a practice.
asserts on one hand that in the past FPO's did not stay current in their training and therefore
utilized very little as firefighters, or that because they had let their training lapse the City
precluded from using them as
firefighters, however, in the next breath it asserts the opposite; that FPO's work
so that at times they may be able to fill in for a regular firefighter after having completed
duties and that they previously have been utilized in this capacity. The City cannot
that there exists an unequivocal, clearly enunciated and readily accepted practice of using
fill in and reduce overtime opportunities for 56 hour per week personnel. If the City had
such a right in the past, why would it have entered into the side letter of understanding
issue? Further, if FPO's had been regularly used in the past to fill in for 56-hour per week
why did the Chief concede that FPO's lacked the training to be regularly used as firefighters?
The record also does not support the existence of the past practice of using FPO's to
overtime opportunities. Lieutenant Duffy, an eight-year veteran of the Department, testified
reviewed the Department's daily report forms for the period April 18, 1993 to March
18, 1999. The
forms are used to record the names of individuals on duty in the Department on any given
daily report for March 19, 1999 shows that Vermeulen was assigned as a Lieutenant on
between the hours of 8:00 a.m. to 1:30 p.m. and that Peterson was assigned as
the hours of 1:30 p.m. and 10:00 p.m., and that thereafter Bergen was assigned on an
as Lieutenant. Duffy testified that the daily records showed that the City fell below
level approximately 50 to 60 times per year during the period April 18, 1993 to March 18,
During that period which reflected approximately 350 overtime opportunities, only once did
use a 40-hour employe to fill a 56-hour position overtime opportunity (May 16, 1994).
that one instance, the City called back overtime to meet the minimum staffing. The City
to rebut Duffy's testimony with incident reports that showed that an FPO responded to four
emergency calls. Unlike the daily reports, the incident reports do not indicate the
staffing on a given day, and thus do not indicate whether a 40-hour per week employe
deprived a 56-hour per week employe of an overtime opportunity, and are therefore
irrelevant. In three of the
incident reports offered by the City, the FPO did not fill a vacancy that would have resulted
overtime, but instead filled in for a paramedic student who would not have been released to
school had the release created overtime. Thus, the use of an FPO to substitute for a
student did not represent a lost overtime opportunity. In the fourth exhibit, the FPO did not
by in place of a 56-hour per week employe, but instead responded to an actual emergency.
Chief acknowledged that the use of the FPO in that capacity did not represent a lost overtime
opportunity for a 56-hour per week employe. Thus, the examples offered by the City are not
sufficient to establish a practice of using 40-hour per week employes to reduce overtime
for the 56-hour per week employes.
The City attempts to rewrite the Understanding regarding the FPO's. It argues that
Understanding was intended to permit the City to reduce its overtime exposure by using
fill in for line personnel, and cites the Chief's testimony that in order to justify keeping the
FPO's in the Department, it would have to be agreed that there would be a benefit to
the City above
and beyond what an ordinary civilian would have. The Union asserts that the benefit
the Understanding was agreed to was that FPO's could be used for "fires/emergencies and
out of City
ambulance transfers." The City did not negotiate, nor did the Union agree, that the City
overtime opportunities for 56-hour per week employes by assigning FPO's to stand by in
of "fires/emergencies". Kania's e-mail of May 22, 1997, made clear that the Union did not
FPO's could be used to shrink another employe's overtime opportunity to something less than
hours, the Chief responded to that e-mail that it "looks good". The City now attempts,
years after the Understanding was signed, to assert the right to assign FPO's to fill a part of
shift for the purpose of reducing overtime opportunities for 56-hour per week employes. If
wishes to use FPO's to shorten overtime opportunities of line personnel, it should make the
appropriate proposals in bargaining.
The City suggests that it would be deprived of any benefit from the Understanding
FPO's if the Union prevails. That is not true. To the extent that a quid pro
quo was an essential
element to keeping FPO's in the bargaining unit, the benefit to the City is its ability to use
"fires/emergencies and out of City ambulance transfers". As a result of the Understanding,
who were previously not able to engage in fire suppression due to the lack of training, are
trained and used when an actual fire occurs, and are even eligible for overtime when doing
However, the Understanding also limits the use of FPO's. Further, if the existence of FPO's
only be justified by reducing overtime, the Union questions why it took nearly three years to
using FPO's in that capacity.
The City's argument that there was no 24-hour call-in on March
because eight hours of
the 24 were already assigned to the FPO or Paramedic Captain is an unpersuasive attempt to
around the limitation in the Understanding. The City's contention actually recognizes that
but for the
use of the FPO and the Paramedic Captain on March 19th, a firefighter
would have worked the full
24 hours overtime. The reason there was not a 24 hour call is because the FPO occupied a
24-hour call in need" in violation of the Understanding.
The Union asserts that it does not dispute that the City gained the right to utilize
firefighters in the event of an actual fire, and that they can be recalled to duty to suppress
Thus, the City gets exactly what it bargained for, dual-trained employes who can be engaged
fire inspection and fire suppression.
The Union disputes the claim that the Management Rights clause permits the City to
use 40-hour personnel to deprive 56-hour per week personnel of overtime opportunities. The
that assertion even though the duties that have historically been performed by line
personnel are outside the duties of the normal job classification of FPO's and
Paramedic Captain, and
asserts the right to make such assignments on a regular, rather than on an emergency basis in
to avoid overtime. Any rights that the City might enjoy to make assignments that deprive
personnel of overtime opportunities must give way to the Maintenance of Benefits clause in
Agreement and the Understanding regarding FPO's. The Union asserts the City must have
recognized that its right to unilaterally determine the assignment and use of FPO's was
the Maintenance of Benefits clause, or else why did it bother to negotiate the Understanding
regarding the use of FPO's. The same limitations that moved the City to negotiate over the
FPO's also apply to the use of Paramedic Captain. While the Management Rights clause is
without meaning, in the exercise of those rights the City cannot adversely affect the
opportunities previously enjoyed by employes covered by the Agreement and guaranteed by
Maintenance of Benefits clause. The Union concludes that the record supports the conclusion
in the past, vacancy in line positions needed to meet the minimum staffing requirements of
Department were filled by other employes assigned to 56-hour per week schedule, even if
called back to work on overtime, that the Management Rights clause in the Agreement is
the Maintenance of Benefits clause and the Understanding regarding FPO's, and that the
use Vermeulen to fill a partial 24-hour vacancy violated the Understanding regarding FPO's,
as the Maintenance of Benefits clause in the Agreement, and that the decision to use Peterson
a partial 24-hour vacancy similarly violated the Maintenance of Benefits provision in the
Therefore, the grievances should be upheld and the appropriate remedy awarded.
The City first asserts that its rights under Article XXVII, Rights of Employer, give it
to assign the FPO and Paramedic Captain to regular firefighter duties during their normal
The assignment of such employes during their work hours are proper functions explicitly
the City pursuant to Article XXVII, paragraphs 2, 3, 5, 6 and 8. Also, the Chief, Peterson,
Assistant Chief Hahn all testified that 40-hour employes have been used to fill in for 56-hour
firefighters, with the Chief testifying that the FPO's have in the past even responded to a fire
their inspection duties in their inspection vehicle when the Department was short-staffed.
further testified that the Department had lost that capability because the FPO's had lost their
and so the Department was reestablishing that it had the right to use them (FPO's) in that
(Tr., p. 107-108).
Article XXVII, paragraph 5 explicitly grants the City the right to "maintain the
economy of City operation entrusted to the Administration," meaning that the City can
efficiency by using employes during their regular work hours when they are trained as
firefighters, so as to provide work for the FPO and Paramedic
Captain and save on overtime costs. There is no specific clause that restricts the City's
schedule and assign employes during their regular work hours and without such limiting
the argument that the City has violated the Agreement must fail.
Further proof the parties have agreed to the City's ability to administer work
resultant assignments is found in the explicit language under Article V, Section 3 of the
Administration of these schedules and resultant assignments shall
be the responsibility of the Fire
Chief (Chief) or Assistant Fire Chief (Asst. Chief) as may be designated by the Chief.
Next, the City asserts that there is an established binding past practice of utilizing the
and by extension, the Paramedic Captain, as a regular firefighter during his/her regular work
Chief Flagstad testified that as long as he has been in the Department, they have used the
Chief to fill in many, many times over the past 10 years, as well as the Training/Safety
a now-retired FPO, Jack Mohr, used to carry his helmet, coat and hat in his car and would
at times even from his inspecting duties as the third individual on a responding engine, and
he and another now-retired FPO, Brian Fox, were sometimes called back to the station to put
ambulance in service or when a firefighter had to leave for an emergency. The TSO, Peter
testified that he has filled in for firefighters a number of different times since 1991, although
an eight-hour shift. Hahn also testified about the past use of Fox and Mohr to fill in on the
and for firefighting and MPO duties as well. Peterson testified that he fills in for regular
if his schedule permits, at times working from 8:00 a.m. to 4:00 p.m. or for short periods of
related to an ambulance transfer, or if someone has to leave on emergency family leave, or
been a fire call and extra staffing is needed. City Exhibits 1 through 4, 7 and 8 prove that
been used to fill in for either a part of a 24-hour call back or for short-term manpower
Thus, it is clear that the City has established an existing practice of using 40-hour employes
to fill in
for 56-hour employes; that the Union knew of the practice, and that both parties accepted it
was part of the normal operation of the Department.
The City also asserts that it had the right to utilize the FPO during his normal
pursuant to the parties' Understanding regarding the FPO's working conditions. It is
understand the reason why and how the Understanding came into existence. Concerned over
the City Manager directed the Chief to consider making the FPO's civilians and removing
the bargaining unit. This prompted discussions between the City and Union over how the
could be utilized. At the same time, one of the FPO's was entering his last years of
was looking for additional overtime to enhance his retirement pension. While the Chief and
were in agreement to try and retain the FPO's in the bargaining unit, the Chief testified that:
. . . there had to be an agreed effort that these individuals [FPOs]
would have a benefit to the city
above and beyond of what an ordinary civilian would have or we could not justify the
in the fire department or the union.
The training of the FPO's had lapsed so that the City was precluded from using them
firefighters. Under the Understanding, the FPO's would become trained so that they could
as firefighters or EMT's. The City thereby gained the right to train and use them as
the Union kept two positions in the unit. The Union drafted the Understanding and the Chief
to it because,
. . . we needed to have the ability to use them [FPOs] during the
day, during their normal hours,
to justify their existence.
. . .
"we would be able to use these individuals [FPOs], if needed,
during their normal hours.
(Tr. pp. 107-109).
The Understanding prevented FPO's from working overtime
after their regular 8:00 a.m. to
4:00 p.m. shift, however, it gave the City the freedom to utilize them during their regular
According to the Chief, one of the repercussions of the Understanding was that overtime of
"would be restricted". They would not be allowed to work overtime and partially fill a call
(Tr., p. 109). Mercer was also in attendance at the discussions with the Union and echoed
testimony of the Chief, testifying:
One, the fire department was looking to keep the positions [FPO]
within the fire department
rather than to have them go outside the fire department for services, and the city would be
able to use
fire prevention officers during the normal hours that they worked to respond to fires and
(Tr. p. 182)
Mercer further testified that it was the Union's goal to keep the FPO's in the
and that in the discussions involved in the development of the Understanding, the City made
the Union that in using the FPO's during their normal working hours to respond to fires and
emergencies and to man the apparatus, included manning the apparatus on stand by so as to
to respond to a fire or to an emergency, and it was not the intention just to keep them in
duties until there was an actual fire. With regard to the second sentence of the
Mercer testified that in the discussions, the City stated that it
would not use the FPO's beyond their normal schedules and thereby would not
decrease the ability
of other firefighters for overtime, but that for the first part of the regular schedule, they
effect deprive the regular firefighters of some overtime. (Tr., p. 183-184). With regard to
"partial 24-hour call in need" the Chief testified that:
That to us meant that we could not no longer allow the
fire prevention officers to work the 16
hours they were requesting from the end of their regular 8 hour cycle till the next morning,
could not break that out and pay them regular time for the first eight and pay them overtime
(Tr. p. 111).
Thus, an FPO would have his overtime opportunities restricted as far as working as a
firefighter to only major fires and disasters. It is the Chief's belief that the Understanding
City the right to utilize FPO's during their normal hours, but not give them overtime by
inroads into the next 16 hours. Here, however, there was no 24-hour call in because eight
the 24 were already assigned to the FPO or Paramedic Captain and thus there was no
violation of the
partial call-in need provision. The Chief also testified that the Understanding did not change
practice that existed as to utilizing the FPO's during their normal work hours, rather it stated
assurances that the City would be able to use them while they were on duty, as the City had
away a little bit from that practice because of the lapse in their training. With regard to the
situation, the Chief testified that he did not believe that the Understanding or the Agreement
violated because the overtime opportunity for a 56-hour employe was not available until
as the Department had adequate staffing up until that time. Thus, on that day, an FPO was
a portion of the shift, the Paramedic Captain for another portion, and a regular firefighter for
portion of the 24-hour shift. The Chief concluded that a 24-hour opportunity never exists
is a need for it, and because of the adequate staffing available, that never occurred on March
Thus, there was no violation of the Agreement.
The City asserts that Union President Kania was coy regarding the background of the
development of the Understanding regarding FPO's. While he first testified that the City's
to lower the pay of FPO's, he then testified that the City did discuss pulling the FPO's out of
bargaining unit. He also testified that the phrase in the Understanding dealing with the
call in need was unilaterally altered by the Union, and not discussed between the parties.
there is any ambiguity in the second sentence of the Understanding over the overtime section,
should be resolved against the drafter of the language, i.e., the Union. Further, the City's
the history and intent of the FPO Understanding is more credible. Not only were the two
positions to be maintained in the unit, they would be trained and utilized as firefighters.
This was the
entire foundation upon
which the Understanding came into existence. Therefore, when FPO's were not in
perform their regular duties, they could be utilized during their regular work hours to fill in
firefighters, and that is what the City got out of the deal, and it also confirmed the practice.
restriction on overtime is significant because it specifically addressed the need at the time
FPO was trying to obtain more overtime at the expense of the 56-hour employes. The
"overtime" in the FPO Understanding is important, as it emphasizes that it sought to restrict
overtime of the FPO beyond his normal schedule. The first sentence of the Understanding,
clearly and expressly permits the City to assign an FPO to regular firefighter duties. In this
City only utilized the FPO and Paramedic Captain during their regular work hours and had
to utilize staff in that manner and had done so in the past on numerous occasions.
The argument that FPO's could be used during normal work hours for actual
"fires/emergencies" and not in "stand by" mode does not make sense, since the City has
the right to utilize all Department personnel to fight major fires and to respond to actual
The issue is the ability to use FPO's to fill in for regular firefighters in the "stand by" mode,
be prepared to respond to fires and emergencies, during the regular work schedule of the
With regard to the allegation that the City's action violated the Maintenance of
provision in the Agreement, the City asserts that it has not withdrawn or reduced any benefit
previously granted to Department employes. When there is a full 24-hour overtime
City utilizes the procedures established in the Department guidelines, as it also does with
short time overtime opportunities. Employes are not always assured of a 24-hour call in as it
modified by the City's staffing needs. In this case, the Department utilized the FPO and the
Paramedic Captain to remain fully staffed, and there was no 24-hour overtime available.
Union does not have the right to determine the length of time available for a firefighter to
fill, as that
is the City's right pursuant to Article XXVII. As this situation has occurred previously, and
has a practice of utilizing 40-hour employes to fill 56-hour vacancies, the Union cannot
violation of Article XXIX.
In its reply brief, the City asserts that the Union has mischaracterized the testimony
Flagstad and Peterson. The Union argues that the Chief understood that FPO's would not be
to deprive line personnel of overtime opportunities. That mischaracterizes the Chief's
indicated that in this case there was no 24-hour overtime opportunity for the line personnel
of the right to utilize FPO and the Paramedic Captain during their regular work hours to fill
in for the
56-hour firefighter, and that therefore the regular firefighter did not lose any overtime
The Chief also testified that the intention of preventing overtime for the FPO was to restrict
from extending overtime past their normal workday when performing regular firefighter
testimony supports the
City's case by noting the exceptions to using a regular firefighter on an
overtime 24-hour call back,
which exceptions are exactly what occurred in this case. The testimony of the Chief cited by
Union supports this interpretation:
Q: Isn't it true that in the past you have gone to the
overtime call-in procedure and called back
a 56 hour employee to fill that 56 hour vacancy?
A: Most of the
time you're correct.
(Tr. p. 134)
That answer is accurate because those are the exceptions that occurred in this case,
City utilized other staff to avoid a 24-hour overtime situation. The Union's claim that
testimony supports its position is also not true. When asked if the events of March 19,
represented a change in practice, Peterson responded that he had seen other people used in
capacity for that type of situation. This proves that other non-56-hour employes were used
firefighter capacity to avoid overtime and meet minimum staffing requirements. Kania's
that 40-hour employes have never been used to fill in for 56-hour employes is not credible
overall testimony of the Chief, Peterson and Hahn, as well as the incident reports submitted
The City also asserts that contrary to the Union's view of its rights under the
of Benefits provision, the City has the right to determine if overtime is needed and to
to temporary vacancies pursuant to its rights under Article XXVII. One right that the City
which has a bearing in this case, is the right to determine if overtime is needed, as there is
provision in the Agreement restricting that right. This important right goes to the heart of
operation and has significant financial implications. The City obviously has an interest in
overtime costs at a reasonable level. A second important and relevant right in this case,
City retains, is the right to reassign staff to temporary vacancies. Again, there is no
restriction in the
Agreement on the City's ability in that regard. In fact, the Agreement explicitly provides the
with the ability for such administration and assignments to work schedules in Article V,
as well as Article XXVII. In the latter, the Union has also agreed that the City can
"methods, means and personnel by which operations are conducted." Utilizing 40-hour
substitute for 56-hour employes is certainly within the rights granted to the City by those
provisions. Further, the City had a long-standing practice of doing so. While the Union
the 1997 FPO Understanding and the Call Back Guidelines are the exclusive means of
this case, that view ignores the strong evidence presented of the City's practice of
to fill vacant positions in order to avoid overtime. There is nothing in either of those
which require overtime; rather, they become operative only after the City determines
needed. While arbitrators have recognized employes may be desirous of receiving more
to supplement their incomes, arbitrators have also upheld the employer's right to determine
overtime work will be available in the first place, especially where, as here, the Agreement
guarantee overtime to employes. The City then cites a number of arbitration awards where
have upheld the discretion of the employer as to how it will fill shift shortages, including the
discretion to make temporary transfers in order to avoid overtime, the right to change
schedules to avoid overtime, and the right to schedule work in such a manner as to avoid the
The Union's argument that the actions of March 19th represented an attempt by the
begin regular use of 40-hour per week personnel to fill 56-hour per week vacancies,
sudden reduction in benefits protected by the Maintenance of Benefits provision, is not true.
is not "regularly" using 40-hour employes to fill in; rather, the Chief testified that such
only happen when the 40-hour per week employe's schedule permits it. Secondly, this was
"sudden reduction in benefits", but rather a confirmation of a long-standing practice. The
the concept of management rights backwards. The City does not need to cite a specific
the Agreement in order for it to have the right to transfer or reassign employes, rather, it
rights to manage all operations pursuant to Article XXVII, including the right to assign
and nothing in the Agreement prohibits it from doing so, as it did on March
Next, the City asserts that the understanding regarding the FPO's has not been
the City utilized its long-standing practice of reassigning staff to cover vacancies, and in that
avoid overtime. The Union's interpretation of the Understanding completely ignores the first
sentence, which states, "FPO may be used during normal hours (depending on their
for fires/emergencies and out of City ambulance transfers." (Emphasis added). That is
the City did in this case. Further, the Chief did not violate Kania's e-mail, as he understood
Union's concern that FPO's would not be used to cut into the firefighter's 24-hour overtime,
that the first sentence gave him the right to utilize the FPO during their regular work hours.
It is the
overtime after the FPO's regular workday that the FPO could not "take" from a regular
pursuant to the Understanding. The City reiterates that it believes that there is no 24-hour
call back involved in this case because it averted that situation through its right to assign staff
a temporary vacancy. When the City elects to assign an FPO to a regular firefighter's duties
the FPO's regular work hours, as is permitted under the Understanding, this has an
on the overtime opportunities for firefighters. However, the second sentence of the disputed
provision in the Understanding is subservient to the first sentence, as to find otherwise would
a nullity of the first sentence.
The City also asserts that the Union's interpretation of the FPO Understanding is
not supported by the record. The argument that the first sentence of the Understanding
City's ability to utilize FPO's in 56-hour positions, except when there is an
actual fire/emergency or
out of City ambulance transfer, is not credible or supported by the evidence. The City has
the right to call in employes for a major fire or emergency and stating it in a special
does not make sense as it would be redundant. It is important that the Arbitrator understand
background as to how the Understanding came to be. The joint concern of both parties was
the FPO position in the bargaining unit and yet make sure that it could be utilized as a
firefighter during the FPO's regular work hours and prevent the FPO from "gobbling up" the
overtime of a regular firefighter once the FPO's regular workday ended. The
argument that the City
is prevented from assigning an FPO on "stand by" status is not persuasive. The first
sentence of the
understanding does not say "respond to a fire/emergencies." In the language of the
assignment to a firefighter position means standing by and, if necessary, responding to an
or fire. The Union's interpretation is not credible and does not reflect the intent as testified
to by the
Chief and Mercer, both of whom testified that it was the intent to use the FPO during their
work hours in the same capacity as a regular firefighter. No distinction was made as to
or "responding" to an actual fire or emergency, and it was only raised after the grievance
The City has not attempted to expand the terms of the Understanding beyond its intended
rather, it is upholding the intent and express provisions, along with the underlying rationale
to the Understanding in the first place. The City had a chance to use FPO's in the regular
of a firefighter and this had not been done before as their licenses and training had lapsed.
Understanding allowed the FPO's to receive the training and it would not make sense for
them to do
so if the City could not utilize it. The Union kept the FPO's in the bargaining unit and also
the assurance that they would not be used to deprive overtime opportunities for regular
with the exception that FPO's could be used during their regular work hours to
fill in for a regular
firefighter. That is what both parties got out of this deal, and what is spelled out in the
Understanding. The reason for the Understanding in the first place was to prevent the FPO
taking overtime from a regular firefighter after the FPO's regular workday ends and that is
by the second sentence of the Understanding. The Union's interpretation would deprive the
any benefit in agreeing to the Understanding and that it's why its version simply does not
Lastly, the City asserts that contrary to the Union's argument, arbitrators have upheld
management's ability to control overtime costs. The City asserts that where, as here, the
is silent, arbitrators have consistently upheld the employer's right to change work schedules
reassign staff to avoid overtime. The City concludes that there is no restriction on its right
employes to firefighter positions to minimize overtime, and that the Union cannot determine
length of overtime that is needed. The City has acted pursuant to
its rights under Article XXVII and Article V, Section 3 and has not violated the
overtime call back or the Understanding regarding FPO's working conditions. Thus, the
should be denied.
There are two distinct situations involved in these cases. The parties have a
of understanding regarding the FPO position that includes certain rights and restrictions on
of the FPO's. There is no such memorandum of understanding regarding the Paramedic
position and the parties' rights and obligations with regard to that position must be
their labor agreement and practice, if any is found to exist.
Fire Prevention Officer
In early July of 1997, the parties reached agreement on an "Understanding of
Employment for Fire Prevention Officer" which, in relevant part, reads as follows:
Overtime: FPO may be used during normal
hours (depending on their daily schedules) for
fires/emergencies and out of City ambulance transfers. FPO's are not eligible for 24 hour
and may not occupy a partial 24 hour call in need. FPO returning to line work
will retain position on
24 hour list in same ratio as when departed.
. . .
FPO may be called in on over-time for fire inspection duties, and
also major fires/disasters as all
fire department employee's (sic) can be.
. . .
The underlined portion was included in a May, 1997 draft of the Understanding that
Kania e-mailed to the Chief along with his cover memo which read:
Attached is a copy of what I intend on iforming (sic) the
membership/interested applicants on the
defined conditions of employment for the FPO position. Look it over, we can change parts
I believe the idea's are what our
discussions (sic) and were our intent. Look at the underlined
item. We didn't disscuss (sic)
specifically FPO's shortening another employee's 24 hour OT, but I don't think it was
intent. Any problems let me know.
The "underlined item" referred to in Kania's e-mail is the underscored wording that
ended up in the
The underscored wording in the Understanding is not ambiguous, and even if it were,
bargaining history in the form of Kania's e-mail makes clear it was the Union's intent that
could not be used to shorten what would otherwise be a 24-hour call in overtime opportunity
56-hour employes. Although this additional wording was not discussed face-to-face, the
acknowledged the receipt of Kania's e-mail the same day with an e-mail responding, "Looks
This overcomes Mercer's testimony that the City made known to the Union in their
it intended to utilize FPO's during their regular work hours to fill a vacancy in a line
position on a
stand-by basis rather than calling in a 56-hour employe on overtime to fill the vacancy.
the Understanding states FPO's may be used for fires/emergencies and out of City ambulance
transfers during their normal hours, the next sentence qualifies the first by precluding FPO's
occupying a partial 24-hour call in need, whether or not it is during their normal work hours.
Contrary to the City's assertion, that does not make the first sentence a nullity. The FPO's
utilized during their normal work hours for the stated purposes as long as it is not in lieu of
56 hour employe in a 24-hour call in need situation.
While the City is correct that it has the right under Article XXVII, Rights of
assign employes, maintain efficiency and to determine the personnel by which the operation
Department is to be conducted, those rights have been modified by the express language of
parties' Understanding regarding the FPO's. The City asserts that there was no "24-hour
need" in this case "because of its use of FPO Vermeulen and Paramedic Captain Peterson on
19th during their regular work hours. There was, however, a 24-hour
vacancy in a line position and
the City, as was its right, determined that it would fill all 24 hours of that vacancy in order
its minimum staffing level. Vermeulen did in fact occupy part of a 24-hour call in need by
5½ hours of that 24 hour vacancy on a stand-by basis during his regular work hours.
otherwise would render the language that an FPO may not occupy a partial 24-hour call in
meaningless, as any time an FPO occupied part of a 24-hour vacancy, it would no longer be
call in under the City's interpretation. With regard to the assertion that the City would not
obtained any benefit from the Understanding under such an interpretation, by keeping the
the bargaining unit and keeping up their training, they are available to use in line positions in
"fires/emergencies and out of City ambulance transfers" or for "major fires/disasters".
if the FPO's had been made civilian positions and taken out of the bargaining unit, that
would not be
As to the City's alleged practice of using FPO's to fill in for 56 hour employes for
part of a
24-hour call in during their regular hours, such a practice, even if proved, does not
express prohibition in the Understanding on FPO's occupying part of a 24-hour call in need.
as discussed below, the evidence in that regard shows that 40-hour personnel have been used
short-time vacancies, rather than parts of 24-hour vacancies. The prohibition on utilizing
fill a part of a 24-hour call in need enhances overtime opportunities for 56-hour personnel
also constitutes a "benefit" for overtime purposes for 56-hour employes within the meaning
XXIX, Maintenance of Benefits.
Based upon the foregoing, it is concluded that the City violated the Understanding of
Conditions of Employment for Fire Prevention Officer and, as discussed below, Article
Maintenance of Benefits, of the parties' Agreement, by assigning FPO Vermeulen part of the
call in on March 19, 1999.
As noted previously, there is not a written understanding or side agreement regarding
Paramedic Captain position. The Understanding regarding the FPO's is specific to that
cannot be expanded beyond its terms to include the Paramedic Captain position. That being
in order to prevail the Union must establish that it previously enjoyed the benefit it now
that 40-hour employes may not be used to avoid overtime by filling part of a 24-hour
vacancy in a
56-hour position in order to meet minimum staffing requirements. This case involves the use
of a 40-hour employe, the Paramedic Captain, to fill part of what would otherwise be a
24-hour call in on
overtime for a 56-hour employe, and it is not necessary or appropriate to determine the
beyond these circumstances.
Union President Kania and Union Executive Board member Duffy testified that they
aware of any instances in their tenure in the Department where 40-hour personnel were used
to this to fill in for 56-hour personnel in order to maintain a minimum staffing level. In
Duffy testified he had reviewed all of the "daily reports" for the Department from April 18,
March 18, 1999, and found only one instance of a 40-hour employe filling a vacancy in a
position, which occurred in May of 1994. Duffy further testified that falling below the
staffing level occurred 50 to 60 times per year, and that 24-hour call ins were used and filled
by 56-hour personnel in those instances (Tr. 85). Duffy conceded it was possible that the
might not show transfers of personnel and that it was possible that 40-hour personnel filled in
for 56-hour personnel without it being indicated on the daily report. Duffy also conceded
that whether the
form is filled out accurately varies with who is filling it out. The Chief testified that since
chief 10 years ago, 40-hour personnel have filled in many times for 56-hour personnel to
cover short-time manpower shortages due to emergency leave, testing procedures, doctor
ambulance transfers, or to respond to a fire, and that the duration varied from an hour to
or four hours (Tr. 117-18, 120, 134). Training/Safety Officer Hahn testified that since
1991 he has
filled in for 56-hour positions, but only for short periods of time, "nothing extended, never
hour shift." (Tr. 204). Paramedic Captain Peterson testified he has filled in for Paramedics
of times since taking his position in March of 1999 mostly for short periods of time, though
eight hours on occasion. (Tr. 194). However, he conceded that the Union has grieved some
instances. The City also submitted incident reports which indicate that on three occasions in
an FPO, Brian Fox, filled in for Paramedics who were attending Paramedic school and could
a 56-hour employe to work for them. Students are told they must find someone to work for
while they are attending paramedic school, as the City is not liable for paying overtime, and
cannot find someone, 40-hour personnel are at times assigned to fill in for them. The
finish the last 16 hours of their shift when they return from the school. A fourth incident
indicated that Fox responded to a fire when three line personnel were absent, but there is no
indication that he worked any longer than that fire call. None of those instances involved
vacancies in a 56-hour position.
It must again be noted that this case involves a 40-hour position (Paramedic Captain)
worked part of what would otherwise have been a 24-hour call in, i.e. to fill a 56-hour
was vacant for the full 24 hours and which management decided would be filled for the full
(albeit by three different individuals covering three portions of the 24 hours). That situation
distinguishable from the situations where the 56-hour employe is gone for a short time or for
hours at Paramedic school and then returns to complete his/her 24-hour shift. Those are not
call in situations. Beyond demonstrating that 40-hour personnel have been used at times
normal work hours to fill in for 56-hour personnel on a short time basis, the City's evidence
what has occurred in the past does not address the instant situation. The evidence is,
sufficient to establish that 24-hour call ins are utilized, and that 56-hour personnel are used to
them, when there is a 24-hour vacancy in a 56-hour position and it is determined that it is
to fill the vacancy for the full 24 hours. The Chief conceded that was the case at least "most
time." (Tr. 134). To that extent, there is a "benefit" within the meaning of Article XXIX.
the City retains under Article XXVII, Rights of Employer, and Article V, Hours, paragraph
qualified to the extent the Union has been able to establish the existence of such a benefit
by Article XXIX, Maintenance of Benefits.
It is concluded that by using Paramedic Captain Peterson during his normal work
hours to fill
part of what would otherwise have been a 24-hour call in on March 19, 1999, the City
benefit previously granted to the 56-hour employes in violation of Article XXIX of the
For the same reasons, that would also be the case as to the City's use of FPO Vermeulen in
manner on March 19, 1999.
Had the City followed the normal procedure and utilized a 56-hour employe on a
in on March 19, 1999, the employe then on the top of the 24-hour call list for the
would have had the opportunity to work 24 hours of overtime. Presumably, that individual
eventually have that opportunity; nevertheless, 14 hours of overtime work was lost due to the
actions. As the only individual identified in this case as being injured by the City's actions
Paramedic Bergen, who worked the last 10 hours of the 24 hour shift as overtime, the 14
overtime have been awarded to Bergen.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
As to the Fire Prevention Officer Fill-In grievance, the grievance is sustained.
As to the Paramedic Captain Fill-In grievance, the grievance is sustained.
Therefore, the City is directed to immediately pay to Paramedic Timothy Bergen
hours of wages at the contractual overtime rate in effect on March 19, 1999.
Dated at Madison, Wisconsin this 5th day of April, 2000.