Arbitration Award




In re

City of Claremore


International Association of Firefighters,

Local 1077


117 LA (BNA) 722

FMCS Case No. 01/0627-12769-8


April 28, 2002


Sylvia Marks-Barnett, Arbitrator *


* Selected by parties through procedures of the Federal Mediation and Conciliation Service



The Submission Agreement 


The parties jointly submitted the following issue to the Arbitrator: whether the Employer violated the Agreement of Recognition, Bargaining Procedure and Operating Contract Between City of Claremore and Local 1077, FY 2000-2001 (hereinafter referred as the” Agreement”), when it refused to allow a second man (Grievant) off at Substation Two. 


Pertinent Provisions of the Agreement 


Article 1 Purpose of Agreement 

It is the intent and purpose of this Agreement, ... to protect the public health of the citizens of Claremore, Oklahoma, from strikes, work-stoppages or slow-downs by the Union; to insure that the employees Bargaining Unit not be denied other well recognized rights of labor, including the right to be represented ... and the right to bargain collectively with Employer concerning wages, hours, and other terms and conditions of employment ... 


Article 2 Recognition 

The Employer recognizes the Union as the sole and Exclusive Bargaining Agent for all permanent paid members of the Fire Department, excluding the Chief of the Fire Department and the Administrative Assistant ...  

Article 4 Management Rights and Responsibilities 

Section 1. 

The Union recognizes the prerogative of the City to operate and manage its affairs in all respects in accordance with its responsibilities, and the powers of authority which the City has not officially abridged, delegated, of (sic) modified by this Agreement are retained by the City; management officials of the City retain all Management rights, not otherwise specified and all rights, in accordance with applicable laws, and regulations, but are not limited to, the following: 

A. To manage and direct the employees of the Fire Department. 

B. To hire, promote, transfer, schedule, assign, and retain employees in positions with the Fire Department. 

  * * *  

 E. To maintain the efficiency of the operations of the Fire Department. 

 F. The number, types and grades of positions or employees assigned to an organizational unit, department or project. 

 * * * 


Article 6 Union Rights and Responsibilities 

Section 4 

All rights and privileges which are not included in this Agreement currently enjoyed by employees covered in Article II, Section 2, shall remain in full force, unchanged and unaffected in any manner unless and except as modified or changed by the specific terms of this Agreement. 


Article 7 Mutual Responsibility 

Section 1 

The Employer and the Union hereby stipulate that all the terms and provisions of this Agreement are subject to the provisions of and hereby incorporate by reference, the Oklahoma Municipal Code [Title 11], Sections 51-101, et seq. 


Article 20 Vacation 

Section 1 

Vacation time will be calculated in accordance with established Fire Department policy ... 


Pertinent Provisions of Oklahoma Statutes 

Title 11. Section 51-111 Agreements—Contents 

... All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of fire departments ... currently in effect on the effective date of any negotiated agreement shall be deemed a part of said agreement unless and except as modified or changed by the specific terms of such agreement. . . . 


Factual Background 


From the exhibits and the testimony, the facts appear to be that the Fire Department for the City of Claremore consists of one central station (hereinafter referred to as “Station One”) and two sub-stations (hereinafter referred to, respectively, as “Station Two” and “Station Three”), with, at the time the grievance here in dispute was filed, six men assigned at Station One, four men at Station Two and three men at Station Three, per shift. The Union is the Bargaining Agent for and represents all firefighters employed by the Employer. At the time this dispute arose, the parties were operating under their Agreement, effective July 1, 2000. 


In 1980, with two stations in existence, the parties established a vacation scheduling policy, by which three firefighters were allowed off per shift, at their choice, based on seniority at each station. In 1985-86, after a third station had been built and staffing had been increased by three, for a total of 11 firefighters per shift, this policy was changed to reflect that four men could be off per shift, two at Station One and one each at Station Two and Three. Also, at this time, the Employer determined that the minimum manning requirement was eight. This resulted in a firefighter being called for overtime whenever four men from the same shift exercised their right to be off under the policy. 


During the contract negotiations in 1990, the Employer proposed changing the policy, but the proposal was withdrawn. Then, in 1994, the Fire Chief at the time, Mike Melton, unilaterally changed the policy in several respects, the one which is pertinent to the issues here reflected that only three men could be off per shift. Chief Melton's action was grieved by the Union. In arbitration, this dispute was resolved in favor of the Union. The Union's Post-Hearing Brief, in that arbitration, set forth, and urged Arbitrator Samuel D. Wang to adopt, the position that the vacation scheduling policy in effect at the time was four firefighters off per shift, two at Station One and one each at Station Two and Three, and that this policy was one of the terms which governed the actions of the parties under the prevailing rights clause of the Agreement and by Statute, i.e. 11 O.S. §51-111. In the Award of July 5, 1995, Arbitrator Wang found that the vacation scheduling policy of “permitting four men off at a time existed and was accepted by both parties (having existed for many years)”, as it existed before Chief Melton's change, was a term, as a prevailing right, of the Agreement and when Chief Melton unilaterally changed that policy, the Employer violated the Agreement. In the Award, Arbitrator Wang directed the Employer to “resume administration of the Vacation and Policy selection process as was established at the time of the conclusion of negotiations establishing the current Agreement.” Thereafter, the parties did resume the established policy and continued to do so. 


In 1999, however, the City of Claremore determined to increase the staffing of the Fire Department, by the addition of three new firefighters, each year, for four years. During July, 1999, the first group of three were hired, one for each shift. Acting in response to rumors that the Fire Chief at the time, Jim Arnold, was going to assign these three (one to each shift) to Station Two, the Union President, Bryan McDonald, met with Chief Arnold. In the ensuing discussion, President McDonald told Chief Arnold that the ratio is for every three men, one person gets let off and if he were to put the new men at Station Two, the Union would file a grievance. Chief Arnold said that if that was how the Union felt, he would assign the new men to Station One. This was acceptable to the Union because two men were already allowed off at a time at Station One, so increasing the staff there to six per shift would not require any additional number of firefighters to be allowed off. Deputy Chief Ramsey, who was present at the meeting, admitted that President McDonald did mention that there could be a possible grievance, but denied that he heard any mention of a three-to-one ratio. Chief Arnold was not called to testify by either party. 


The following July, the second group of three was hired, which was to be assigned to the three shifts at Station Two. In the mind of the Union, this situation would call for an allowance of an additional firefighter off at that Station, or two per shift. Again, discussions were engaged in. However, this time, Chief Arnold took the position that no matter how many people were hired, there would be only four people allowed off station-wide. Ultimately, both President McDonald and Chief Arnold set their respective positions to writing in correspondence with either other. Then, on January 8, 2001, the Grievant, Mark Owens, at Station Two, was denied his first pick vacation date in deference to a more senior firefighter. This decision was made by Battalion Chief Wilhoite, implementing Chief Arnold's position that there could only be one firefighter of per shift at Station Two irrespective of the fact that there were then four firefighters assigned to that Station. It was this action which is the basis of the grievance before the Arbitrator. 


Discussion and Findings 


The advocates are to be commended for presenting a well-prepared case in a zealous, as well as congenial fashion, all of which was of great assistance to and is appreciated by the Arbitrator. 


The Employer contended that: 


(1) The prior arbitration award between the parties made by Arbitrator Wang should be given res judicata effect or serve as collateral estoppels to the determination of this grievance; 


 (2) No agreement was reached, in 1999 or thereafter, by the parties to increase the number of firefighters who could be off based on a ratio formula, or at all; 


 (3) Chief Arnold did not acquiesce to nor act consistently with the alleged policy for a ratio formula to determine the number of firefighters who could be allowed off by assigning the employees hired in 1999 to the Main Station; and, 


 (4) Any claim that a past practice has been modified requires proof of mutual acceptance. 


The contentions of the Union were that


(1)   the past practice as to vacation scheduling is that when staffing has increased, the number of firefighters allowed off has increased; and


(2)   Arbitrator Wang's Award supports the Union's position. 


In order to avoid an unduly lengthy opinion, the Arbitrator will not respond to every argument presented by both the Union and the Employer, but will, instead, focus her attention only on those matters which she deems necessary to a correct, proper and fair decision of the dispute. 


Prevailing Rights 


Oklahoma law, the FPAA, provides that whatever rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operations and administration of fire departments in existence on the date any negotiated collective bargaining agreement become a part of that agreement. Additionally, the CBA, in Article 6, Section 4, gives to members of the Union all rights and privileges not included in the Agreement, but in existence as of the effective date of CBA. This bundle of management functions, together with employee benefits are known in the parlance of the organized workplace as “prevailing rights.” Prevailing rights exist in tension against and make an incursion into management rights, which, in this case, are set out in Article 4 of the CBA, and which, in pertinent part, provide that management has the right to schedule vacations and determine the number of employees assigned to an organizational unit. 


·        Whether There was a Past Practice Concerning the Scheduling of Vacations in Effect on July 1, 2000 Which Became Part of the CBA And, If So, What Was It? 


The evidence demonstrates that from, at least 1980, to the completion of Station Three in 1986, three men were allowed off per shift. There is no evidence as to how these vacancies were allocated. With the completion of Station Three and increased staffing of 11 firefighters, the number of men allowed off per shift was increased to four. There is no evidence as to whether this change was accomplished through negotiation or by the Employer's unilateral action. Nonetheless, two of the four allowed off were allocated to Station One, with the remaining two allocated one each to Station Two and Station Three, respectively. In the 1995 arbitration, the Union took the position, as reflected in its post-hearing brief, that allowing two men off at Station One, one at each of the other Stations, was a past practice and could not be unilaterally changed by the Employer. That position was adopted by the Arbitrator. There is no dispute that, from that time through November, 1999, because of the statutory and contractual provisions for prevailing rights, the Employer's right to schedule vacations was limited by the established past practice of allowing two men off at Station One, one at Station Two and one at Station Three, for a total of four men off out of a staff of 11. 


The Union claims that this practice is based on and to be interpreted as “to allow one man off for every three assigned to the stations”, to which the Employer takes exception. In the circumstance of the increased staffing which existed at the time of the Grievance, this made a difference. It is this difference which is the basis of the dispute under consideration. 



The Union asks that the Arbitrator interpret the descriptive language of the past practice. This requires that the Arbitrator engage in the same analysis which would be used to interpret any terms of the CBA. Even if one goes beyond the absence of ambiguity in that language to look at all the circumstances to reveal the intent of the parties, there is nothing in this record to convince the Arbitrator that when the past practice of allowing four men off was instituted, the intent was that it was based on a three to one ratio. President McDonald candidly admitted that he was not able to testify as to how the formula came up, that the Employer never presented it to him as a ratio, he just knew that with 11 people on shift, four got off and if you do the math, that represents a ratio of one for every three. 


It is arguable that “11 people on, 4 allowed off” does lend itself to a loose representation of “one man off for every three assigned.” However, it is just as arguable that the intention of the Employer in agreeing to two men off at Station One and one man off at Station Two and Station Three, respectively, was in exercise of its rights to determine the number of firefighters needed at each Station for the efficient operation of the equipment located at each Station and to address the needs of public safety. 


The Union points to Chief Arnold's November, 1999, decision and action to go along with the Union's notice that if he assigned the new men to the shifts at Station Two, an additional man would need to be allowed off and, instead, assigned the new men to the shifts at Station One, which would not disregard the formula/ratio. The Union claims that this demonstrates that Chief Arnold changed his mind about where to assign the new men because he knew that the past practice represented and required a formula/ratio of one man off for every three assigned. 


While this is a reasonable explanation, a stronger argument could have been made if Fire Chief Arnold had assigned the new men at Station Two and agreed to allow two men off. Additionally, it is equally arguable that Chief Arnold merely deferred to President McDonald's report of a possible grievance in an effort to forestall its occurrence. Doing this is actually within the framework of good labor relations. If this were deemed to rise to the level of establishing a particular interpretation of the practice, or even to modifying the practice, there would certainly be a chill placed on any agreements being made outside of a contract negotiation session. 


Inasmuch as the Union is the party making a claim for interpretation, it has the burden of proof. The Arbitrator finds that this burden of proof was not met. The past practice in existence on the effective date of the CBA was that two men were permitted to be off at Station One, one man at Station Two and one man at Station Three. 




The Arbitrator is aware that circumstances of growth are occurring at the Fire Department and the past practice may no longer be feasible. Clearly, the situation calls for some changes in the vacation scheduling policies. 


The Arbitrator is also aware and considered that the increased staffing is diminishing the opportunities to work overtime. However, the benefit involved in this past practice is the right to be allowed off, not a right to be afforded overtime opportunities. The Arbitrator was not directed to, nor could she find, a provision in the CBA guaranteeing overtime. This absence leaves the matter of determining overtime squarely within management rights. 


There will soon be a time when the increased staffing is completed and the new station built. The Arbitrator is aware and considered that, under the current practice, the men assigned to Station Four would not have any right to be allowed off at all. As tempting as it was to resolve today problems for the parties in the future, the Arbitrator, to a greater extent, was most reluctant to, in view of the evidence, saddle the Employer on public safety, manning and equipment issues. 


Just as the practice cannot be changed unilaterally, likewise, it cannot be given an interpretation that is not proven to be within the intent of the parties. The parties are left to negotiation. Based on all the foregoing, the conclusion is that the Employer did not violate the Agreement when it refused, on January 8, 2001, to allow the Grievant off at Station Two. 




The Grievance is denied.