BEFORE THE ARBITRATOR
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
AFL-CIO-CLC, LOCAL 257
CITY OF APPLETON
(Investigator Call-In Grievance)
Mr. Paul Jordan Steel, Head Steward, Local 257, P.O. Box
214, Appleton, Wisconsin, appearing
on behalf of International Association of Firefighters, AFL-CIO-CLC, Local 257.
Ms. Ellen Totzke, Deputy City Attorney,City of Appleton, 100 North Appleton Street, Appleton,
Wisconsin, appearing on behalf of the City of Appleton.
International Association of Firefighters, AFL-CIO-CLC, Local 257, hereinafter
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and the City of Appleton, hereinafter
accordance with the grievance and arbitration procedures contained in the parties' labor
Lauri A. Millot, of the Commission's staff, was designated to arbitrate the dispute. The
held before the undersigned on March 21, 2002, in Appleton, Wisconsin. The hearing was
transcribed. The parties submitted post-hearing briefs and reply briefs, the last of which was
on June 10, 2002. Based upon the evidence and the arguments of the parties, the
and issues the following Award.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agreed at hearing that there were no procedural issues in dispute. The
were unable to stipulate to the issue.
The Union frames the issue as:
Does the City have the right to use a Firefighter/Relief
Union member, to conduct
a fire investigation, when the direct result is injury to a Fire Inspector, another Union
member? If not,
the Union requests the payment of wages and benefits for two hours of call time and 45
overtime to the aggrieved Fire Inspector.
The City frames the issue as:
Whether or not management has the right to send a crew to
assist and evaluate
fire scene instead of sending a fire inspector/investigator immediately upon the request of the
officer at the scene?
Based upon the relevant evidence and arguments in the case, I frame the issue as:
Was the collective bargaining agreement violated when the
Inspector at the top of the
call list was not called in on September 10, 2001, at approximately 4:40 p.m. for a fire
so, what is the appropriate remedy?
ARTICLE 4 Hours
A. The Basic workweek for the
following categories of employees (hereinafter called "Fire
Support personnel") shall consist of forty (40) hours. . . .
. . .
1. Fire Inspector
. . .
B. The basic work week for the
following categories of employees (hereinafter called "Fire
Operations personnel") shall consist of fifty-six (56) hours to be worked in twenty-four (24)
hour tours on the basis of one day on one day off one day on one
day off one day on
four days off.
5. Fire fighters
. . .
C. The duty day shall begin at 0700 hours for
Operations Personnel. The coverage period for
Support personnel shall be from 0700 to 1700 hours. The Chief or his designee shall
determine staffing needs during that period and the employees shall select their schedules by
seniority in compliance with those staffing needs.
. . .
E. Whenever necessary because of insufficient staffing to
fill crews, the Chief or his designee may call
in off-duty personnel. Such call-ins shall be first by seniority within the classification and
by seniority among other qualified employees.
. . .
ARTICLE 5 -
A. Subject to the provisions of
sub-paragraphs 1 and 2 of this paragraph, all time worked over forty (40) hours per
week shall be considered overtime and be paid for at the rate of time and one-half such
employee's base rate. When employees are required to work beyond their normal schedule
hours for any reason, they shall be paid overtime at time and one-half for actual time
Fire Support personnel may be compensated for such overtime by either pay or time off, at
their sole discretion subject to the provisions of Paragraph B below. Fire Operations
personnel will be compensated overtime by pay only.
. . .
D. Call Time: Employees
recalled to duty shall receive two (2) hours pay at their regular rate
plus pay for actual hours worked, subject to the overtime provisions of this Agreement, with
a minimum payment of not less than three (3) hours straight time. Employees recalled for a
period of eight (8) hours or less of overtime will not be charged with time worked on the
. . .
G. All overtime will be filled
subject to senior qualified from the call list, except where herein
specifically stated otherwise. All personnel will be numbered according to seniority on the
department. Call lists shall be divided by classifications and overtime call-back of personnel
shall be made on a rotating basis.
Seniority lists shall be posed [sic] at all stations, and shall
indicate the complete account of
the overtime scheduling. The lists must be kept up-to-date so personnel can be aware of
status on the schedule. Outlying stations shall be notified of additions to the schedule. For
purposes of this paragraph, Captains and Lieutenants shall be classified as Officers.
. . .
I. A call list will be created for the purpose of
allocating overtime for all qualified fire
inspectors. Overtime shall be allocated in the following manner:
1. Fire cause investigation and other
emergency call-ins: The call list will be rotated
monthly. The employee at the top of the list will be called first for any such overtime
during that month.
. . .
ARTICLE 30 - Function of
Except as herein otherwise provided, the
Management of the Department and the direction of
the working forces, including the right to hire, promote, demote, layoff, suspend without
discharge for proper cause, transfer, determine the number of employees to be assigned any
classification, and to determine the job classifications needed to operate the Employer's
is vested exclusively in the Employer.
It is further agreed, except as herein
otherwise provided, that the responsibilities of Management
include, but are not limited to those outlined in this Agreement. In addition to any specified
the Employer shall be responsible for fulfilling all normal managerial obligations, such as
changing or developing new methods of work performance, establishing necessary policies,
organizations and procedures, assigning work and establishing work schedules and of
appropriate means of administration and control. Provided
however, that the exercise of the foregoing rights by the City will
not be used for the purpose of
discrimination against any member of the Union or be contrary to any other specific
provision of this
Agreement, and provided that nothing herein shall be construed to abrogate the provisions of
grievance procedure contained in Article 23.
BACKGROUND AND FACTS
The essential facts are not in dispute. On September 10, 2001, Truck 324 responded
automobile engine fire at 4:20 p.m. Upon arrival at the scene, Incident Commander
Palma requested assistance from Truck 341 and then cancelled his request for Truck 341
fire was extinguished. After speaking with a witness, Palma learned that two individuals fled
scene, which prompted him to radio Battalion Chief Ron Hockett. Palma requested that
County 911 send a police officer and that the Fire Department send a Fire
(hereinafter "Inspector") to the scene to investigate.
Following receipt of Palma's request for an inspector, Hockett attempted to locate the
on-duty fire inspector. Fire Inspector Noel's shift had just ended, and Hockett observed him
personal vehicle out of the Fire Department parking lot. Hockett then sought out and located
Fire Chief Eugene Reece in Fire Chief Neil Cameron's office and inquired as to whether
able to respond to Palma's request for an inspector. Reece indicated he was not available
Hockett he needed to "figure out something else." After speaking with Cameron, Reece
second conversation with Hockett and directed Fire Driver-Engineer Rick James and Truck
go to the scene.
Upon arrival at the scene, Palma informed James of the facts of the fire. James
automobile and engine compartment, discussed the scene and concurred with Palma in
object underneath the vehicle. James took photographs of the automobile with a camera
him by Deputy Fire Chief Reece.
Palma completed a Wisconsin Fire Incident Reporting System form on September 10,
Palma described the incident as "District #4 responded to a car fire in the parking lot of
Packaging at 2730 Roemer Rd. At arrival we found an auto with the engine compartment
involved. We used a 1 ¾" pre-connect to extinguish the fire. APD was called in for
because the drivers had fled the scene. After extinguishment the scene was turned over to
Palma checked "yes" in response to the inquiry of "Investigation Requested" and wrote
"undetermined" in response to the inquiries of "Form of Heat Ignition," "Type of Material
and "Form of Material Ignited."
The pending grievance was filed and processed through Step 3 of the grievance
The grievance alleged a violation of Article 5, Overtime, and sought call-in and overtime
compensation as the remedy. The City's Human Resources Director denied the
grievance at Step 3 explaining "I believe that the Department is well within its
management rights to
assign an additional crew to an incident scene and to call upon the necessary skills of the
personnel to assess a situation. Further, since no investigative report was filed and since no
photographs were taken, I do not see how any member's rights were infringed upon by the
POSITIONS OF THE PARTIES
The Union argues that Article 5 of the labor agreement provides fire inspectors
domain" over fire inspections. The Union argues that the agreement affords all current fire
inspectors the opportunity for overtime, whether it is after regular working hours, on
and/or on holidays. The Union notes that the fire inspectors are obligated to remain in a
response area and must be contactable while on stand-by. The Union asserts that individuals
not fire inspectors are not included in the call list and thus, are ineligible for either stand-by
response compensation for fire inspectors.
The Union argues that the City's actions conflict with City Fire Department
Policy I-80, which establishes the guidelines for calling in off-duty inspectors. The Union
the incident commander at the scene has the authority and responsibility to determine whether
inspector is needed at a fire scene and that the City violated its own policy when it did not
send a fire
inspector to the scene.
The Union next argues that the Management Function clause of the labor agreement
allow the City to assign a driver to conduct an after hours investigation when that assignment
deprives the fire inspector next on the call list from an opportunity for overtime. The Union
that the City engaged in "de facto" discrimination by placing one Union member in an
position to another Union member thereby "discriminating" between them in violation of
The Union takes issue with the City's position that an investigation was not
Union asserts that the evidence establishes that Truck Company 341 was directed by
to respond for the purpose of allowing Driver James to conduct an investigation and that an
investigation was conducted. The Union argues that multiple facts demonstrate that a fire
investigation was called for and was conducted at the scene including (1) Palma's requested a
inspector, (2) the fact that the cause of the fire was identified as "undetermined" on the fire
investigative report, (3) the fact that Company Truck 341 was not cancelled by the incident
commander, and (4) the fact that James examined and took photographs of the vehicle.
Based on all of the above arguments, the Union asserts that the City has violated the
current labor agreement and the grievance should be sustained.
The City argues that the management rights clause of the labor agreement protects the
decision to send James and Truck 341 to the car fire on September 10, 2001, rather than
an inspector. The City argues that it was not necessary to send a fire inspector to the scene
management determined that due to Driver James' past assignment as an inspector, he was
to go to the scene to "take a look at the situation before a fire inspector was called in." The
acknowledges that the labor agreement addresses the procedure to follow when calling in an
employee, but that it remains the right of management to determine when to call in additional
The City argues that fire investigation is a "broad concept" and is not the exclusive
of fire inspectors. The City relies on the testimony of Fire Chief Cameron who confirmed
firefighters with outside employment or interests have conducted investigations in the past
calling in an inspector.
The City argues that Policy I-80 is solely a guideline to be used when the decision to
an inspector is necessary. The City asserts that Palma decided he "needed help" and
determined that James and Truck 341 would respond. The City concludes that its decision to
Truck 341 rather than immediately summoning an inspector is a right granted under the
In further support of its position, the City relies on the Union's failure to grieve the
denial of overtime for the crew of Truck 341. The City notes that Article 4, Section G, of
agreement states that fire operations personnel are on-duty twenty-four (24) hours and that
p.m. they are to "provide service in matters responding to emergency and non-emergency
City received overtime requests from Truck 341 personnel, which were denied due to the
that they are to provide service for emergency and non-emergency calls. The City asserts
Union's failure to pursue the grievances is an affirmation by the Union that Driver James and
341 were not conducting an investigation.
The City argues that Article 5 of the labor agreement is clear and unambiguous and,
result, the standards of contract interpretation require that this Arbitrator conclude the City
appropriately. The City argues that the Article creates a call list to be used for allocating
to qualified fire inspectors and sets forth the rotational procedure for emergency call-ins,
pre-scheduled overtime, and weekend and holiday stand-by. The City argues that none of the
of Article 5 address "when or if it is critical that a fire inspector be
called in to work on an overtime
status." (Emphasis in original City brief.) The City therefore concludes that since the
the Article does not limit its rights, that its action is consistent with the rights it was afforded
management rights clause.
The City argues that the Union's reading of the job descriptions is incorrect. The
that drivers are required to perform the duties of firefighters and within the firefighter job
is the clause that they will perform "other duties as assigned by supervisors." Thus, the City
concludes that the dispatch of Driver James was consistent with the job descriptions.
With regard to the Union's implication that the City sent Truck 341 to the scene "for
purpose of discriminating against a Union member," the City responds that the language of
30 requires that management intentionally discriminate and since there was no malicious
discriminatory intent, therefore there is no violation.
The City asserts this case is similar to City of Beloit (Fire Dept.), Case 131,
MA-8965 (Buffett,10/3/96) wherein the issue was whether the City of Beloit had the ability
assign fire personnel out of classification. The City asserts the Arbitrator's conclusion that
contractual provisions provided for payment for out of classification assignment, but did not
whether out of classification assignment could be made, is the same scenario presented in this
In response to the Union's argument that an investigation was conducted at the scene,
challenges the Union's characterization of the testimony of Hockett and Palma. The City
that Hockett and Palma both testified that the issues at the scene had been established,
need for Police Department investigation, but that at no time did Palma testify that he had
the cause of the fire. The City restates its argument that Truck 341 was sent to the scene so
James could assist in determining whether an investigation was warranted, not so that James
conduct an investigation.
For all of the above stated reasons, the City argues that the grievance should be
This case arises as a result of the City's decision to send an on-duty fire
a fire scene in lieu of calling in an off-duty fire inspector. The City relies on the
clause of the labor agreement, and essentially argues that Driver James was sent to decide
an investigation was needed. The Union grieved this decision claiming that James was sent
to do an
inspection and that the overtime provisions of the labor agreement were violated. The City
Union argue their cases citing numerous issues and contract provisions, including
overtime provisions, employee assignment and job classification and discrimination.
The City has, pursuant to Article 30, Management Functions, the right to "fulfill all
managerial obligations, such as planning, changing or developing new methods of work
establishing necessary policies, organizations and procedures, assigning work
and establishing work schedules and of applying appropriate means of administration
This language, coupled with general understanding that management has the right to direct its
enterprise, grants the City great latitude when making decisions so long as its decisions are
contrary to the specific terms of the labor agreement or are "so clearly arbitrary or
capricious as to
reflect an intent to derogate the relationship." Elkouri and Elkouri, How Arbitration
Edition p. 659 (1997) citing Fairway Foods, 44 LA 161, 164, (1965). Thus,
unless the specific
provisions of the labor agreement limit the City's right or it is shown that City's actions were
arbitrary, capricious or in bad faith, then its decision to send Driver-Firefighter James to the
rather than call-in an off-duty fire inspector will be upheld.
Both parties argue that the Overtime provisions of the labor agreement are clear and
unambiguous as it relates to fire inspector call-in, but arrive at different conclusions.
Section I, provides that a call list will be used to allocate all overtime to qualified fire
that overtime for "fire cause investigation and other emergency call-ins" shall be allocated to
employee on the top of the call list. Section I, subsections 2, 3 and 4, address pre-scheduled
overtime, weekend and holiday. The Union argues that this language creates an "exclusive
for fire inspectors to complete fire investigations thus negating the City's right to assign any
inspector employees to perform fire investigation work. 1/ Conversely, the City concludes
language does nothing more than establish the procedure to be followed when a fire inspector
called in, but does not address "when or if it is critical that a fire inspector be called in to
work on an
1/ The Union does not challenge the use of
management employees to conduct fire investigations.
When the plain language of the agreement is "clear, conveying a distinct idea," then
interpretation is unnecessary. Elkouri and Elkouri, supra, p. 482, (1997). Section I states
that a call
list will be used to allocate overtime for fire inspectors. It further states that when there is
overtime fire cause investigation or emergency call in, then the City will call in the fire
the call list. Nowhere in this section does it restrict who may perform fire investigation
Looking solely to the language of Section I, I find the City's argument that the decision that
inspector is or is not needed remains within management's discretion to be more plausible
Union's claim that calling an inspector is mandatory.
That said, Section I must be viewed in concert with the other sections that address
and in conjunction with the entire labor agreement. Article 5, Section G, states that "all
be filled . . . from the call list" and explains that the call list is divided by
classification and listed by seniority. Fire inspector is a job classification. This
section limits overtime
fire inspection work to only fire inspector's on the call list. There is a call list for fire
in seniority order. These sentences allow for the conclusion that all overtime fire cause
and overtime emergency call-ins for fire investigation purposes are to be conducted by the
inspector at the top of the call list. Thus, if a fire investigation was conducted, the City
Was a fire cause investigation conducted?
The City argues that it was premature to call-in a fire inspector and that a fire
was not conducted. The evidence does not support this contention.
The City asserts that they did not assign James to perform fire inspector functions,
sent James to the scene to assist Incident Commander Palma. Palma radioed dispatch and
a fire inspector be sent to the scene. Hockett intended to send an inspector and attempted to
on-duty Fire Inspector Noel. After learning that Noel was not available, he attempted to
Deputy Reece. It was only after Reece directed Hockett to send James to the scene that the
claims it no longer was necessary to have an inspection conducted. Its actions up to that
demonstrate a conviction that an inspection was required.
The evidence convincingly establishes that James, as a result of his prior assignment
experience as a fire inspector, was sent to the scene to conduct an investigation. Hockett
that the reason James was sent to the scene was "because I know in the past, Rick has had
to deal with fire, fires, fire scenes, fire investigations, using the camera, and I at the
time that I
assigned him to do this, I honestly believed that that that information did not fall out
of his head,
that he retained the basic information, the basic knowledge to go out and assist Lieutenant
. ." (Tr. 46) Reece testified that he sent James out to "assist the officer at the scene of the
65) and clarified that James was "assisting the officer in determining the cause of a fire."
It is clear to this Arbitrator that James was sent, as a result of his past knowledge and
a fire inspector, to the scene to conduct an investigation.
Upon arriving at the scene, James was apprised by Palma of the facts of the fire at
James visually reviewed the scene and took photographs. Palma testified that James offered
opinion as to the cause of the fire and that he and James concurred on the cause. Thus, the
evidence demonstrates that the City wanted an investigation conducted, that it assigned James
because it believed he was qualified to do an investigation, and that James actually did
investigation. Granting the City's claim that it has reserved to itself the right to decide
inspection will be conducted, the facts here clearly show that it made the decision and
favor of an investigation by James. 2/
2/ Driver-Engineer Rick James and three
employees of Truck 341 requested half-time compensation for
working ¾ hours for the reason of "fire investigation" as a result of their response to
the September 10, 2001,
engine compact fire. All requests were denied by Reece on the basis that the "work was
associated with an
emergency response." The overtime denials were not grieved. No
evidence was produced at hearing as to why the
grievances were not pursued. These requests for
compensation, denials and the subsequent decision not to grieve the denials do not provide
evidence to support the City contention that the Union abandoned its position that Truck 341
and James conducted
The City next argues that even if James was sent to the fire scene to conduct an
the assignment was not inconsistent with the labor agreement. The City argues that the
right's clause provides it the right to assign duties and the Driver-Engineer job description
the work that James was sent to perform.
As has previously been discussed, absent limiting specific contractual language or
capricious or bad faith motivation, management has considerable leeway with regards to the
assignment of job duties. The City argues that its decision to send James to the fire scene is
by the "and all other responsibilities" assigned by the employee's supervisor clause of the
Driver-Engineer job description and the City's decision to assign the job duty to James was
the management rights clause.
I disagree. First, looking to the job descriptions, "investigates fires to determine
circumstances" is an essential job function of the Fire Inspector job description. No such
is contained in the Fire Driver-Engineer or the Firefighter job description. Second, this is
assignment of a de minimis task to Driver James. Rather, this is the
assignment of the primary
responsibility of the Fire Inspector classification to the on-duty Driver-Engineer who had
held the position of Fire Inspector. See Shell Chemical Co. 47 LA 1178, 1180 (Rohman,
1/14/67). Finally, I concur with the line of thought that "will not permit assignment of work
employees in another classification if the primary goal of the unusual assignment is to avoid
payments to those employees who ordinarily perform the work." Theodore St. Antoine,
Common Law of the Workplace, (BNA, 1999) p. 120. The City in this instance
attempted to avoid
the payment of call-in and overtime compensation by assigning Fire Inspector work to a
Driver-Engineer which is inconsistent with the Overtime provisions of the labor agreement
capricious and in bad faith.
Finally, although the City has asserted that it has assigned investigative
responsibilities in the
past to firefighters, the record evidence falls far short of proving a past practice that allows
non-inspectors to conduct investigations in lieu of calling in a fire inspector on overtime.
In addition to its overtime arguments, the Union argues that the City's decision to
to the fire scene rather than call-in Fire Inspector Noel was "de facto discrimination" in
the language of Article 30. Article 30 provides that the City will not exercise its
rights "for the purpose of discrimination against any member of the Union." The
commonly held view
is that language of this type, when included in a labor agreement, is intended by the parties
employees engaging in Union activity. 3/ It does not create a cause of action under the
every time an employment decision is made that favors one member of the unit over another
of the bargaining unit, or render every adverse action an act of discrimination simply because
involve a member of the Union. Such an interpretation is not impossible, but requires very
evidence that is what the parties intended. There is no such evidence.
3/ Elkouri and Elkouri, supra, p. 937-938, and
footnote 251. See also Sauer, Inc. 100 LA 191, 197
(Franckiewicz, 7/2/91); Granite Construction Co. 100 LA 585, 591 (Richman,
The City argues that City of Beloit, supra, is analogous factually and thus, the same
conclusion should be reached. The facts and controlling contractual language in City of
different than those posed in this case. Thus, City of Beloit is distinguishable.
Having found that the labor agreement provides that all fire cause investigations and
emergency call-ins that occur outside the duty day are to filled from the fire inspector
call list and that Driver-Engineer James was sent to the scene to conduct a fire investigation,
therefore find that the City violated the labor agreement when it failed to call-in Fire
on September 10, 2001.
1. Yes, the City violated the collective bargaining agreement when it failed to call-in
Inspector Noel on September 10, 2001, at approximately 4:40 p.m. for a fire situation.
2. The remedy shall be payment by the City to Fire Inspector Noel for two hours
and ¾ hour overtime pay for September 10, 2001.
Dated at Wausau, Wisconsin, this 19th day of September, 2002.
Lauri A. Millot, Arbitrator