Change of working conditions: Management violated the bargaining agreement when it required EMTs to administer vaccination shots to city employees. Although EMTs administered blood pressure tests, blood pressure testing does not establish past practice of administering shots for preventive health care.
City of Madison Heights, Michigan
Madison Heights Fire Fighters Association
119 LA (BNA) 390
AAA Case No. 54-39-1752-02
October 9, 2003
Donald F. Sugerman, Arbitrator.
I. The Issue
The pivotal question in this case is whether the City of Madison Heights (“City”or “Employer”) violated the terms of its collective bargaining agreement (“CBA”) 1 with the Madison Heights Fire Fighters Association (“Association”) by directing bargaining unit employees in the classification of Emergency Medical Technician (“EMT”) to administer influenza (“flu”) vaccination shots “to any City worker or elected official who wishes to receive the vaccine.” 2
Virtually the same dispute as the one described above occurred a year earlier. In December 2001, the Chief issued a directive that paramedics were to administer flu shots to all First Responders (police officers and fire fighters) who wish to receive the vaccine. This, too, prompted a grievance from the Association, and failing settlement in the intermediate steps of the procedure, led to a demand for arbitration being filed with the American Arbitration Association. Shortly before the matter was to be heard by an arbitrator, the parties agreed that the “grievance arbitration will be withdrawn without precedent or prejudice. . . . In essence, again, both parties are where they were under the collective bargaining agreement prior to this dispute.”
II. Relevant Parts of the CBA
The Association relies upon Article XVIII entitled, “Maintenance of Conditions.” It reads as follows:
Section 1. Wages, hours and conditions of employment in effect at the execution of this Agreement shall, except as improved herein, be maintained during the term of this Agreement.
The City relies upon Article XVII entitled, “Management Rights.” That provision, provides in relevant part, as follows:
Section 1. It is recognized that the management of the City, the control of its properties and the maintenance of order and efficiency, is solely the responsibility of the City. Other rights and responsibilities belonging to the City are hereby recognized, prominent among which, but by no means wholly inclusive are: work to be performed within the unit. . . . methods ... except as they may otherwise be limited in this Agreement.
III. Position of the Parties
The Association contends that the primary duties of firefighters fall into three categories: Fire Suppression, Fire Inspection and Emergency Response. While EMTs are trained to administer injections in the course of providing emergency medical attention, they have not previously administered preventative care vaccinations. They have been trained on the former, but not officially on the latter.
The Association cites City of Orange, Texas, 103 LA (BNA) 1121 (Nicholas, Jr., 1994), in which the CBA contained both Maintenance of Standards and Management Rights provisions quite similar to the ones in the immediate case. The grievance protested the City’s assignment of fire fighters to trim trees along rights-of-way in the municipality to permit the unimpeded passage of new fire trucks that required higher clearance. Arbitrator Nicholas held that the new assignment was a change in working conditions in violation of the Maintenance of Standards provision.3
Here, the City claims that administering flu shots is essentially the same as administering injections during an emergency response. EMTs were trained to administer such shots. Furthermore, in preparing for the inoculation of first responders in 2001, an EMT sergeant was instructed how to give the shots and the proper dosage. He passed this information on to his EMT colleagues.
The City also claims that the Association’s preventive care argument is without merit, because firefighters with both basic and advanced life support training have administered blood pressure tests to senior citizens; in the ‘90s at senior citizen facilities and more recently to those who come to a station. In addition, EMTs were assigned to an arena where “Special Olympic” events were taking place.4 Finally, the City contends that the Maintenance of Conditions provision does not apply, because the program was not in place on the effective date of the CBA.
Based upon a careful consideration of the entire record 5 and the post-hearing briefs, I issue this Opinion and Award. The Employer argues that the Management Rights provision gives it the right and authority to determine the “work to be performed within the unit.” I have no quarrel that the quoted language gives management considerable latitude in the assignment of work. However, its rights on this score are not unfettered. The phraseology cannot be taken literally. For example, absent an extreme emergency, it is doubtful that the City would claim that it has the right to assign EMTs to perform the duties customarily handled by other of its employees, such as law enforcement officers, DPW workers, clerical employees, or personnel in its department of parks and recreations.
Where, as here, jobs in the Fire Service are classified by titles, albeit without job descriptions, management has considerable leeway in making work assignments. The assignments, however, must be of the same general type as the regular duties of the job, or reasonably related thereto. The assignment that is the subject of the instant case does not satisfy this criteria. Thus I find that the Management Rights provision does not trump the Maintenance of Conditions clause. The work assigned is not conceptually within the same class or category as the assignments ordinarily given and performed by EMTs.
The administration of flu vaccine is strictly for preventive care. A person elects to have this type of shot. The primary work of a fire fighter operating as an EMT is to provide emergency care for individuals who are injured, sick or ill. Their work is not intended to replace that of ordinary care givers such as physicians, doctors’ assistants and nurses who would be the persons ordinarily delivering this level of care to the general public.
In 2001 and 2002, the vaccine was made available to the City without cost. Although limited to first responders in 2001, the offer was extended to all City employees and elected officials in 2002. Seventy individuals requested inoculation last year. Were the City’s position to be adopted, in 2003 and subsequent years, it could expand the universe of those eligible for flu shots, perhaps exponentially. This might include all residents in the City, non-resident business owners, City vendors (including arbitrators), etc. If preventive care inoculations are permitted, nothing would prevent the City from expanding coverage to include DTP inoculations or other vaccinations that are likely to be developed.
I do not mean to suggest that EMTs may never be called upon to administer preventive care inoculations. For example, were there to be the threat of a possible toxic attack for which an anti-toxin existed, the City might legitimately require EMTs to provide inoculations. While preventative to be sure, the situation involves an emergency response. And is therefore the type of assignment falling within the general duties and responsibilities of these unit employees.
The City next argues that the Maintenance of Conditions clause does not apply because the program was not in place on the effective date of the CBA. While the program did not become operational until 2000, the terms and conditions of the program were negotiated in a Letter of Understanding in April 1997, and were incorporated into the CBA effective July 1, 1997. I conclude that the EMT program was a condition covered by the CBA.6
The fact that fire fighters administered blood pressure tests and were on standby at certain events does not change the outcome in this case. Insofar as the standby operations were concerned, it appears that EMTs were there in the event emergency care services were required. The blood pressure testing does not establish a past practice to support a finding that every type of preventive care is appropriate for assignment.
The City of Orange case is instructive. In that case, Arbitrator Nicholas wrote:
Article VI of the Agreement mandates that the ‘working conditions’ enjoyed by the bargaining unit will remain unchanged for the duration of the Agreement. Despite the City’s attempt to characterize a work assignment as something other than a ‘working condition’, I find that assignment of work is precisely the kind of ‘working condition’ to which Article VI applies. If assignment of the day-to-day activities of the bargaining unit, i.e., their work assignments, are not contained within the phrase ‘working conditions’, the Arbitrator is left uncertain as to what is meant of that phrase save the work environment and the wages paid to employees in the bargaining unit. However, these latter factors are included within the ‘economic benefits and privileges’ language of Article VI. Thus, I conclude that ‘working conditions’ must, of necessity, include the nature of the work being performed by the employees and the nature of the work which they are asked to perform.
I find that the work of inoculating employees and elected officials of the City solely for the purpose of preventative care and without there being an emergency situation, extends far beyond the recognized duties of fire fighter/EMTs.
For the reasons set forth in the Opinion, the grievance is sustained. Absent an agreement by the Association and the City, the latter may not assign to EMTs the task of performing preventive care inoculations.
1. The CBA is effective for the period July 1, 1997 through June 30, 2002 and by its terms continues until a successor agreement is reached.
2. The Nov. 13, 2002 memorandum from the Chief to All Paramedic Personnel stated that flu shots were to be given at designated times from Nov. 18 through the 27th. Ten officers/fire fighters availed themselves of the shots in 2002.
3. The Association also cites: Boardman Township, 115 LA (BNA) 1021 (Lalka, 2001); City of Springfield, 97 LA (BNA) 116 (O’Grady, 1991).
4. One other basis for its position is equitable in nature. In the 1997-2002 CBA the Association secured a new benefit: The City is obligated to assume the cost for an annual influenza vaccination for bargaining unit employees and the cost of a DTP vaccination every ten years, or as directed by a physician. Having EMTs perform this task is convenient and efficient
5. Opening statements, testimony of witnesses and the eight exhibits (including those to which the Association objected).
6. It is unknown when the CBA was signed. The Maintenance of Conditions clause governs those conditions in place on the execution date of the CBA. This being a later date than the effective date, the terms and conditions for employees in the affected classification were established.