Holding: Management did not violate the bargaining agreement when it declined to pay overtime to a firefighter who took a medical exam during his off-duty hours, where the agreement lists nine categories of events for which employees shall receive overtime pay, and medical exams are not among those.
City of Cincinnati
Local 48, IAFF
119 LA (BNA) 421
AAA Case No. 52-390-00601-03
January 22, 2004
Lawrence I. Donnelly, Arbitrator*
Mark Brickweg is a Lieutenant in the Fire Division of the City of Cincinnati, Ohio (which City is hereafter referred to as the Employer in this case). He has been employed some eighteen years in the Fire Division; he was worked as a Lieutenant for some six years. He is a member of the Cincinnati Firefighters Union, Local 48 of the International Association of Fire Fighters, AFL-CIO (hereafter referred to as the Union). This Union serves as exclusive bargaining agent for Lt. Brickweg and the other Cincinnati fire fighters. The two Parties had renegotiated a labor-management agreement, effective June 10, 2001 and due to expire on June 7, 2003. This Agreement covered wages, hours, and other terms and conditions of employment for the referenced time period for members of the firefighter bargaining unit. In particular, the Agreement covers the case at hand.
In April 2003, Lt. Brickweg was assigned to Engine Co. 17 and worked tours of twenty-four hours on and forty-eight hours off. He was assigned to duty on Monday, April 7, 2003. However, he called in sick for that tour with flu-like symptoms. There is no contest that he followed the proper Fire Department procedures in connection with excusing this absence in line with the Sick With Pay provisions (i.e., SWP). Then, again on April 10, 2003, he called in sick for this tour as stipulated in the Department regulations. In the meantime he visited his personal physician on Tuesday, April 8; he received approval to return to work on April 13 from this physician. When he contacted the Employee Health Service (i.e. EHS) later on April 10th to return to duty on April 13th, he was instructed to go to EHS on April 11th for an exam. He did this at 8:45 am; Dr. William Kelley, M.D. certified Lt. Brickweg’s approval to return to work. He reported as scheduled on his tour for April 13, 2003. Subsequently, Lt. Brickweg submitted a request for overtime/comp time because “While off duty, ordered to report to Employee Health Service to be placed back on track by City Physician”. This request for overtime/comp time was denied on April 22, 2003. Lt. Brickweg then grieved this denial on April 30, 2003.
The Parties stipulate that this Grievance properly passed through the Grievance Procedure of the Parties within their Agreement without resolution. Further, they agree that it has properly passed to arbitration before this Arbitrator. In Article VI, Step Four, the Parties provide for the Arbitrator’s authority as follows:
The arbitrator shall have no authority to amend, modify, nullify, ignore, add to, or subtract from the specific provision of this Agreement. He shall only consider and make a decision with respect to the specific issue submitted to him by the parties, and shall have no authority to make a decision on any other issue not so submitted. To the extent that the arbitrator’s decision is in accordance with the provisions of this Section, it shall be final and binding on all parties...
Issue and Remedy
The Parties acknowledged at the hearing that they did not have a joint written statement of issue and remedy. Accordingly, the Arbitrator suggested that they come to some statement of these at the hearing. As he noted above, their Agreement provides that the Arbitrator “shall only consider and make a decision with respect to the specific issue submitted to him by the parties, and shall have no authority to make a decision on any other issue not so submitted.” With the Grievance as the basis for a statement of Issue and Remedy, the Parties did come to an agreement of these. The Issue may be stated as follows:
Did the city violate the agreement for failure to pay overtime on April 11, 2003 in connection with the visit by the grievant to the medical examiner on that date?
As remedy, the Union seeks the payment for four hours of overtime or comp time according to Article XI, Section 2, B in consideration of this visit by Lt. Brickweg, the Grievant. The Employer seeks that the Grievance be denied and dismissed.
During the proceedings, two separate segments of the Parties’ Agreement stood out as central to the Parties’ cases. These are:
Article XI Overtime and compensatory time
Section 2. Overtime and Compensatory Time for Official Off-time Duties.
A. All members of the Cincinnati Fire Division shall receive overtime or compensatory time for official duties performed on their scheduled off-time, vacation or holidays when they:
* * *
iv. Are required to attend any Fire Division meeting, seminar, or training session.
Note: this is one of a list of nine situations; the Union adduces this situation as support for the overtime/comp time claim.
Article XXVIII Sick leave with pay
Section 4. Members reporting a SWP incident are not required to report such an incident to EHS. Furthermore, members returning from SWP are not required to report to or be evaluated by EHS. Members returning from a serious injury/illness may be required by the Fire Division to be evaluated by EHS prior to return to duty.
Positions of the Parties
The Parties represented their positions in the case through their brief opening statements at the hearing. They then elaborated on these during the hearing. Finally, they expanded on these with their written post-hearing Briefs.
The positions of each Party center around two sets of arguments; namely, the application of the Agreement to the situation of Lt. Brickweg and also the applicability of the Fair Labor Standard Act to the case of Lt. Brickweg. The Union points out that the Grievant was required to report to EHS on April 11, 2003, for a medical meeting. He would have been subject to discipline had he failed to do this before returning to work on his tour of April 13, 2003. This medical meeting was outside of his regular hours on a tour of duty; so, under Article XI, the Grievant should have received overtime or compensatory time. The Employer disputes this. Nothing in the Agreement requires payment for a medical exam before an employee on SWP may return to his regular tour. Article XXVIII requires such an exam. But, the Parties have not listed this activity among the explicit list of nine categories in Article XI which warrant overtime pay. The Arbitrator has no authority to add this as a new category to Article XI.
On the second set of arguments, the Union claims that determinations of the Department of Labor as well as of federal Courts would cover the duty to report for a medical meeting during non-scheduled hours as hours worked under FLSA. So, Lt. Brickweg should have been compensated with either overtime or comp time under FLSA. The Employer contends that the Arbitrator has no authority nor jurisdiction to render such a decision under the FLSA either under his authority in the Agreement nor under the statement of the Grievance. The Parties have agreed to the Issue as being a dispute under the Agreement and not under FLSA. In such cases, Arbitrators are not to extend their opinion to a determination under the FLSA.
Analysis and Opinion
The Arbitrator begins his analysis with materials about which the Parties agree. As stated in their Briefs, the Parties concur that there really are no differences about the factual background of Lt. Brickweg’s illness. The Employer does not claim that Lt. Brickweg improperly handled requirements during his illness. Upon Lt. Brickweg’s desire to return to duty, the Employer does not claim that Lt. Brickweg failed to follow proper procedures. He called in on April 10 to EHS about his return to duty.
He made arrangements with Vickie (last name unknown) to report to EHS the next day at 8:45 a.m. for an examination with Dr. Kelley. Although Lt. Brickweg expressed his opinion that such an examination was not needed because he had already received medical clearance from his own physician, he complied and visited Dr. Kelly for clearance. The Parties agree that such a visit was needed and complied with Article XXVIII, Section 4, sentence 3. In fact the Parties’ dispute did not surface until after Lt. Brickweg returned to his normally scheduled tour of duty on Sunday, April 13, 2003. On April 15, 2003, Lt. Brickweg filed for “Overtime/Comp. Time for reporting to E.H.S. on April 11, 2003”. The Employer disputed the validity of this claim and accordingly denied the request for overtime pay on April 22, 2003. With this, Lt. Brickweg grieved.
In particular, he claimed that Article XI, Section 2, A was violated by the Employer. To quote the language of the Agreement, he judged that he should “receive overtime or compensatory time for official duties performed on (his) scheduled off-time ...when (he) ... was required to attend any Fire Division meeting...”in the form of a mandatory EHS meeting under Article XXVIII, Section 4, sentence 3. Under the application of Article XXVIII, Section 4, he was “required by the Fire Division to be evaluated by EHS prior to return to duty.”
As the Parties stipulated at the hearing, Lt. Brickweg’s Grievance properly passed through the Parties’ Grievance Procedure in Article VI of the Agreement to be heard by this Arbitrator. As the Employer noted in its Brief, the Parties specify within Article VI that a “grievance is an allegation by an employee covered by this Agreement or the Union that a term or terms of this Agreement have been violated or misrepresented by the City of Cincinnati, the Cincinnati Fire Division or their respective agents or officers.” It was pointed out at the hearing that EHS is not a component of the Fire Division. Still, it is clear and not a matter of dispute that Vickie was acting as an agent for the Fire Division and arranging the Grievant’s appointment with Dr. Kelley. Further, the Parties clearly provide in Article VI that the Arbitrator “shall have no authority to amend, modify, nullify, ignore, add to, or abstract from the specific provisions of the Agreement.”
Further, in the same paragraph the Parties direct that the Arbitrator “shall only consider and make a decision with respect to the specific issue submitted to him by the parties, and shall have no authority to make a decision on any other issue not so submitted.” At the hearing the Parties did agree upon the issue before the Arbitrator (as noted above in the segment on issue and remedy).
To emphasize, the Parties empower the Arbitrator to rule whether or not the City violated the Agreement for failure to pay overtime on April 11, 2003 in connection with Lt. Brickweg’s visit to the Medical Examiner at EHS on that date. This coincides with the Grievant’s claims on his Grievance. On the Grievance, the Union and the Grievant claim that “The member is to be made whole by payment of overtime or compensatory time in accordance with Article XI, Section 2 (A) (iv) and (B) for official duties performed on scheduled off-time.”
The Arbitrator agrees with the Employer that he has no authority to make a specific determination under the Fair Labor Standards Act. His authority flows from the Agreement between both Parties and not from the Fair Labor Standards Act. The Parties could have conferred to the Arbitrator the authority to make a judgment in terms of provisions of the FLSA, where the applicability of the statute is not clear (as in this case); but, they did not. Rather, they have established their agreements for implementing provisions of FLSA about matters of wages, hours, and conditions within their own labor-management Agreement in Article XI, Section 2, A.
They explicitly make numerous applications to situations which govern overtime/compensatory time “for official duties performed on their scheduled off-time.” Hence, the Arbitrator judges that he does not have the authority to add a specific guideline or definition under FLSA to cover medical examinations during non-working time for members who return from two or more tours on SWP. Instead, the Arbitrator judges that his authority involves the particular application of Article XI, (2), (A) and Article XXVIII, (4) to the facts of Lt. Brickweg’s case. Both Parties do address this matter.
First off, both Parties address the character of the medical exam on April 11, 2003. Lt. Brickweg testified that he judged this was an official duty of his because he would be subject to discipline if he failed to attend this examination; the Union supports this through the testimony of its Vice-President and the testimony of Capt. Uhlhorn. Ass’t Chief Domisi agreed that this appointment could be considered official. He further testified that the Parties in the 2001 negotiations added to Article XXVIII, Section 4 the last sentence, which reads “Members returning from a serious injury/illness may be required by the Fire Division to be evaluated by EHS prior to return to duty.”
He indicated that the meaning of this sentence became a matter of discussion between the Parties soon after it was adopted in 2001. The Parties, however, did agree that “serious” would involve an injury/illness of two or more tours of duty. Neither Party entered any testimony or evidence about any prior cases under this sentence in the twenty or so previous months during the 2001-2003 Agreement. So, as far as practice under Joint Exhibit 1, this case can be considered a pioneer case. Both Parties do agree that the Grievant was properly required “to be evaluated by EHS prior to return to duty.” The Agreement does not specify whether this examination should occur on the employee’s time or on the Employer’s time.
But, if the required evaluation occurs during off-duty hours, should the employee receive overtime/compensatory time payment according to Article XI, Section 2A and B, as the Union and Lt. Brickweg contend? As the Employer notes, the Parties have covered in Article XI, Section 2, A nine categories wherein an employee “shall receive overtime or compensatory time for official duties performed on their scheduled off-time...”There is no indication that this is simply an illustrative list. Nor is the requirement to have a medical examination by EHS before a return to duty from SWP under Article XXVIII, Section 4 listed.
The Parties could have added this in 2001 because they did deal with a modification to the SWP provisions in 2001; but, they did not. Lt. Brickweg stated that the fire fighters did not have to go to EHS under such circumstances in the past. In fact, he got a medical certification for return to duty from his own physician, which he judged to be adequate under common practice. Parenthetically, the Arbitrator notes that the Grievant did not claim that this medical examination by his physician should have been covered by overtime. On the issue, the Employer notes without dispute from the Union that certain other physical examinations are required by EHS without overtime/comp time. So, the arrangement for an examination by EHS under Article XXVIII is not novel; and it does not automatically require overtime/comp time.
On his Grievance and thereafter Lt. Brickweg claims that the required examination by EHS is covered under the fourth category; namely, “Are required to attend any Fire Division meeting, seminar, or training session.” The Grievant does not claim that the examination was a seminar or training session. Rather, on his Grievance, he claims that he “should be compensated with four (4) hours of overtime for attendance at required meeting on scheduled off time.”
Neither the Union nor the Grievant presented any evidence of any prior application of Article XI, Section 2, A, iv, wherein the Parties agree that a medical examination is a “Fire Division meeting.” Nor did they provide any prior instance wherein the Parties understood that a required medical examination is “a Fire Division meeting.” As the Arbitrator reads his authority from the Parties under their Agreement, he has no authority to interpret their Agreement in a way which would “amend, nullify, ignore, add to, or subtract from the specific provision of this Agreement.” Assistant Chief Domisi testified on redirect that before the matter was raised by the Grievant a meeting with EHS was not considered as a meeting under Article XI, Section 2, A, iv. In the Arbitrator’s judgment, for him to adopt the interpretation advanced by the Grievant would amend or modify the specific provision of a “Fire Division meeting.”
A medical examination to attest to the ability of a fire fighter to return to duty to be sure, involves a type of meeting between a person as patient and a person as medical examiner like a physician. Such a meeting between a fire fighter and an EHS physician, even if required, could hardly be construed as a “Fire Division meeting.” If the Parties would have wished such a meeting to be covered under the categories in Article XI, Section 2, A, it makes more sense that they would have explicitly added this as a category when they modified Article XXVIII, Section 4 during their previous negotiations. As a final note, the Arbitrator notices in their now current Agreement that they did rework the third sentence in Article XXVIII, Section 4 and have effectively dropped the requirement from the 2001 Agreement.
But, as the Employer noted at the hearing, this case is governed by Joint Exhibit 1, not by Union Exhibit 1. Under the Agreement in force at the time of the dispute in April, 2003, the Parties do explicitly require an examination by EHS for a return from a serious injury/illness (interpreted as two or more tours of duty) because of a modification agreed to in 2001. However, they do not cover this in the explicit list of categories for overtime or compensatory time for official duties performed on their scheduled off-time during a valid sick leave. Because the Parties have explicitly dealt with issues under FLSA in their Agreement and because the Arbitrator’s authority flows from this same Agreement, the Arbitrator has reached his decision under terms of Article XI and Article XXVIII of their Agreement.
1. The city did not violate the agreement for failure to pay overtime on April 11, 2003 in connection with the visit by the grievant to the medical examiner on that date.
2. Grievance is denied and dismissed.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service