BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF FIRE
LOCAL 407, WAUKESHA
CITY OF WAUKESHA
(Berghoefer Promotional Grievance No. 2)
Mr. John B. Kiel, Shneidman, Myers, Dowling, Blumenfield,
Ehlke, Hawks & Domer, Attorneys
at Law, 700 West Michigan Street, P.O. Box 442, Milwaukee, Wisconsin 53201-0442,
on behalf of International Association of Firefighters, Local 407.
Mr. Vincent D. Moschella, Assistant City Attorney, City of
Waukesha, 201 Delafield Street,
Waukesha, Wisconsin, appearing on behalf of the City of Waukesha.
The International Association of Fire Fighters Local 407 ("the Association") and the
Waukesha ("the City") are parties to a collective bargaining agreement that provides for final
binding arbitration of disputes arising thereunder. On January 26, 1999 the Association
request, in which the City concurred, for the Wisconsin Employment Relations Commission
provide a panel of five of its staff members from which the parties could choose an arbitrator
and decide two grievances over the interpretation and application of the terms of the
relating to promotions. The parties chose the undersigned to serve as the impartial
Hearing in the matter was held in Waukesha, Wisconsin on April 7, 1999, with the parties
written arguments and replies by September 2, 1999.
On November 24, 1999, I issued an Award in which I held, in part, as follows:
. . .
2. That the grievance in Case 135, MA-10734, is sustained,
in that the city violated
Article 21, Section 2 by returning Berghoefer to the paramedic program on January 12,
he was not included among the qualified applicants on the appropriate Eligibility List for the
of Paramedic which the department published on December 2, 1999.
. . .
4. That as remedy in Case 135, the City shall make whole
the firefighter who would have
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 until January
12, 2000, unless prior to that time either party requests my further participation .
Prior to January 12, 2000, the parties informed me that they had agreed to ask that I
jurisdiction over this matter for purposes of the remedy until January 26, 2000, which date
lifted, leaving me with full jurisdiction regarding remedy. 1/ At my request, the parties on
21 reached a stipulation of supplemental facts to complete the record, as follows:
correspondence, dated January 12, 2000 was received in this office on January 13,
1. The first four firefighters on
the paramedic eligibility list which was established on December
2, 1998 were (in descending order): Andrew VanHaag, Aaron Wilke, Joseph Coffey and
2. VanHaag, Wilke and Coffey began paramedic
training in Janesville on or about January 11,
1999. Berghoefer returned to the paramedic program on or about January 12, 1999.
VanHaag, Wilke and Coffey completed their training on or about June 18, 1999. Pursuant to
long-standing practice, VanHaag, Wilke and Coffey did not receive any paramedic pay until
they had completed training and passed the State Emergency Medical Technician-Paramedic
3. Kanter began paramedic
training in Brookfield on July 21, 1999. He will complete that
training on or about April 18, 2000, and, pursuant to long-standing practice, will not receive
paramedic pay until he has completed training and passed the State Emergency Medical
Technician-Paramedic licensure exam.
4. Prior to the present time,
the Waukesha Fire Department never had more than three
firefighters in a paramedic training program at any one time other than when the program
began in 1975.
5. In January 2000, the
Waukesha Fire Department had five firefighters in a paramedic training
program. Three Waukesha firefighters were enrolled in the Janesville paramedic training
program that began in January 2000 and two enrolled in the City of Brookfield paramedic
6. The number of paramedics
sent for training each year is determined by the Chief.
The parties thereafter filed Supplemental Briefs and Reply
Briefs, the last of which was received on
March 28, 2000.
POSITIONS OF THE
The parties stipulated that I was to base my Supplemental Award on the
remedies they proposed, which condition I accepted.
The Association proposes as remedy the following:
1. Award paramedic premium pay and benefits
retroactive to June 18, 1999 to Michael Kanter.
2. Order Berghoefer removed
from the paramedic program so that other bargaining unit members can
fairly compete for the paramedic opportunity that Berghoefer wrongfully occupies.
The City proposes a remedy that states that no member of the bargaining unit has been
harmed by the City's
actions and that no further remedy is necessary.
In support of its proposed remedy, the Association asserts and avers as follows:
Michael Kanter is entitled to premium pay
for the period between June 18, 1999 and April 18, 2000 to
make him whole for the City's violation of the collective bargaining agreement. There is no
was the fourth candidate on the eligibility list of December 2, 1998; but for Berghoefer's
return to the
program Kanter would have filled the paramedic vacancy by attending training with the
others. Had the City
sent Kanter to training rather than fill the vacancy with Berghoefer, Kanter would have
become eligible for
paramedic premium pay on June 18. The wrongful decision to return Berghoefer to
the program, rather than
train Kanter, cost Kanter $8,134.61 in premium pay; the City should be ordered to make him
In order to provide all bargaining unit
members with the fair opportunity to participate in the competitive
process for promotion to paramedic Berghoefer must be removed from the paramedic
program. By restoring
Berghoefer to the program after his resignation the City denied some other firefighter the
training and promotion to paramedic. Initially that firefighter was Kanter; now that the list
Berghoefer's continuation in the program deprives others of the chance to compete.
continuation in the paramedic program represents a continuing and ongoing violation of the
bargaining agreement, and perpetually deprives other bargaining unit members of the chance
to compete for
a paramedic opportunity. Removal of Berghoefer from the program is a critical element of
make whole relief
for the bargaining unit.
In support of its proposed remedy, the City asserts and avers as follows:
No additional remedy is required because the record proves that
no firefighter was harmed by
Berghoefer's return to the paramedic program. As the parties stipulated, the City had never
sent more than
three firefighters to training at any one time; Kanter was fourth on the list in January 1999,
and had no
expectation of receiving training at that time. Kanter lost nothing by Berghoefer's return; as
firefighters on the eligibility list of December 1998 are in or have
completed training, no other firefighter lost anything either.
Further, the sole discretion of how many
firefighters to send to training rests with the Chief; in the exercise of that discretion, the
Chief had as of
January 1999 never sent more than three firefighters to paramedic training at any time.
Kanter and all other
members of the bargaining unit received their training no later than they would have had
returned to the program. As no one lost anything by Berghoefer's return, no one needs to be
and no further remedy is required.
In further support of its proposed remedy, the Association replies as follows:
There are several problems with the City's argument that no
members of the bargaining unit were harmed
by Berghoefer's return to the paramedic program. First, the City has sent, and is sending,
more than three
students to paramedic training at a time. There is nothing in the record to suggest that the
City could not
send more than three to training at the same time in January 1999. Second, the dispute is
not about the
number of students sent to training at one time; the crux is about how candidates are selected
to the program. Berghoefer was not on the eligibility list; Kanter was. In January 1999 there
was a paramedic
program vacancy to which the City should have appointed Kanter. Nothing prevented the
City from sending
four students to training at that time; indeed, the City sent five students to training just a few
Kanter should have been trained and appointed to the paramedic program ahead of
Berghoefer, and should
be made whole by a back pay award.
The City's opposition to setting aside Berghoefer's appointment
defied arbitral precedent. Arbitrators
have long held it appropriate to set aside a promotion which is obtained in violation of the
bargaining agreement. The back pay to Kanter and the removal of Berghoefer from the
are appropriate and essential elements of relief.
In further support of its proposed remedy, the City replies as follows:
The Association's argument rests on a false premise which
invalidates its entire argument. The
Association errs when it incorrectly states there were four vacancies in the paramedic
program in January
1999; the record shows this is not true. The Department does not have a fixed number of
the stipulated facts state, the number of paramedics sent to training each year is
determined by the Chief. The Chief makes
this determination primarily on the basis of funds for training
being available, and not in relation to any fixed number of paramedics. Kanter lost nothing
returned to the program in January 1999 because the Department's practice at that time was
to send only
three firefighters to training at one time; there was no "vacancy" which was filled by
Berghoefer rather than
Kanter. Nor does Berghoefer hold a position that could be filled by someone else.
Berghoefer's absence from
the December eligibility list was irrelevant because he had already received his training and
become a licensed
Because there was no harm to anyone, there
is no need for further remedy. However, there has already
been a remedy, namely the award which found that the Chief had violated the collective
agreement. The opprobrium which the Chief experienced as a result of that award certainly
is a palpable
consequence for the violation. Yet the Association now asks the Arbitrator to impose an
which does not punish the Chief but rather punishes one of its own members when his
in the program harms no other bargaining unit member. The logic behind this is
questionable at best, is unjust
and should not be granted. Nor is backpay for Kanter appropriate. Kanter had no back pay
to receive back pay would be a windfall and not just a remedy.
Any fair comparison of the two positions
leads to the inescapable result that justice is better served by
a finding that no further remedy is necessary, and the arbitrator should so find.
In Case 135, No. 57738, I found that the City violated Article 21, Section 2 by
to the paramedic program on January 12 1999, when he was not included among the
qualified applicants on
the appropriate Eligibility List for the Position of Paramedic which the department published
A problem arose in framing the remedy the absence from the record of any
as to who, if anyone, had been denied a training or promotional opportunity by the City's
violation. Therefore, all I could do was to direct the City to make whole the firefighter who
would have received the paramedic promotion on or about January 12, 1999 but for
Berghoefer's return to the paramedic program. I reserved jurisdiction in the event the parties
were unable to implement the remedy.
The parties were unable to reach an understanding on a mutually acceptable remedy,
requested that I issue this Supplemental Award.
There are two elements at issue in considering an appropriate remedy -- Berghoefer's
status in the
paramedic program, and the make-whole remedy for the firefighter (since identified as
Kanter), who was
purportedly harmed by Berghoefer's return to the paramedic program on January 12, 1999.
The City has three reasons to oppose any further remedy. It asserts that Kanter had
entitlement because the City had never sent more than three firefighters at a time, part of the
of his ultimate managerial discretion. It notes that all firefighters on the January, 1999
Eligibility List have
since been accepted into training and or promoted. And it says the shame it and Chief
Steadman already feel
is punishment enough.
The City may well be correct that due to established practice and the Chief's
to set the number of firefighters accepted into training and promoted into pay status, Kanter
reasonable expectation of or entitlement to promotion. The City might also be correct that
there are no
current or future individuals harmed by Berghoefer's continuing presence in the program.
That would not
mean, though, the end of this matter.
The facts show that the practice as of January 11 1999 was for
Chief Steadman, in his managerial
discretion, to set at three the maximum number of firefighters sent for paramedic training at
Indeed, on that date Steadman could have sent as many as all 11 on the eligibility list or as
few as none. That
the City had since expanded the group to five should be seen as a positive development, not
be interpreted adversely.
As the fourth firefighter on the eligibility list that hitherto had only had three, Kanter
reasonable expectation or entitlement that that he would be given the opportunity at that time
for training as
a paramedic. Accordingly, I reject any financial remedy as proposed by the Association.
Finding for the City as to claimed remedy for Kanter does not, however, affect the
Berghoefer's status in the paramedic program. Nor does the fact that the City is correct that
presence in the paramedic program holds no harm to any individual now or to become in the
Despite the City's moving reference to the "opprobrium that the Chief has
experienced in the eyes
of the Union as a result" of my Award, I believe full remedy does require further arbitral
involvement in the
staffing of the department. I regret that this is so, and take seriously the responsibility for
The City, through Chief Steadman, acknowledged at hearing that promotions to the
paramedic are not taken to the Police and Fire Commission. Accordingly, the Association
asserts, I have the
authority to direct the City to take the necessary steps to affect Berghoefer's paramedic
status. I agree.
The record evidence establishes that while training and certification as a paramedic
prerequisites to appointment in the paramedic program, they are not sufficient for such status
additional steps as application, designation as a qualified applicant, and appointment by the
is trained and qualified but neither he nor any other firefighter could attain pay status
as a paramedic
without undergoing the process pursuant to the collective bargaining agreement.
That is why my Award of November 24 1999 explicitly held that Berghoefer's
promotion back into
the program without being listed as a qualified applicant on the appropriate Eligibility List
21, Section 2 of the collective bargaining agreement. And because there was a violation
continues there must be a remedy.
As noted earlier, I concur with the City that there's no direct harm to anyone from
maintaining his status as a paramedic. But there is still harm to the collective
bargaining agreement itself.
Berghoefer's presence in the program at this time offends the collective bargaining
must be removed from the program, pending his return under a process consistent with that
Because of the critical nature of protective services, I will not issue an award which
compromise public safety. While the record is silent on the need for paramedic services in
the City of
Waukesha, the City has shown it wishes to employ a full complement of paramedics, in a
spirit of aggressive
training and promotion for public health and safety. Berghoefer is a trained and qualified
paramedic, and the
Chief obviously has confidence in his abilities. I am not going to prevent the City from
using his services
That process for appointing paramedics begins with the publication of a Notice to
Eligibility List for Promotion to the Position of Paramedic. It is from that list of qualified
applicants that the
Chief draws the next round of trainees and paramedics. The Chief has the discretion to set
the number of
trainings and promotions, but has no discretion to exempt anyone from the full application
Chief Steadman may, at his discretion, maintain Berghoefer in the paramedic
until such time
as are the first promotions made under the next Notice to Develop Eligibility List for
Promotion to Paramedic
issued after May 24, 2000. Berghoefer is eligible to apply for that List, with the further
conditions that he
must test competitively but is exempt from any training requirements.
Therefore, on the basis of the collective bargaining agreement, the record evidence
and the arguments
of the parties, it is my Award that the grievances is sustained in part and denied in part, as
1. Berghoefer is removed from the paramedic
program on a date at the discretion of the Chief of Police
but no later than the time of the first promotions made under the next Notice to Develop
List for Promotion to Paramedic which is issued after May 24, 2000.
2. Berghoefer is eligible to apply for that List, with
the further conditions that he must test competitively
but is exempt from any training requirements.
3. The remedy of back pay for Kanter is denied.
Dated at Madison, Wisconsin this 22nd of May, 2000.
Stuart Levitan, Arbitrator