Holding: Management did not violate the bargaining agreement when it denied the grievant overtime pay to take courses for a position on the air rescue unit, where he needed courses to be eligible to take the new job, and did not need courses for his current position as a paramedic.
Broward County Sheriff’s Dept.
Fort Lauderdale, Florida
and Firefighters, IAFF Local 3333
119 LA (BNA) 1281
FMCS Case No. 03/13856-3
May 12, 2004
Joseph Chandler, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
The County performs many functions within the Fire Department, one of which is Air Rescue. This latter is a specialized area dealing with the use of a helicopter for rescue of people under many physical, personal, and environmental conditions. This requires some qualifications prior to a successful bid and placement under that bid, such as patient treatment under trauma and other conditions; advanced life support, medication, intubation, et al; transport of patients, and the various types of rescue concerns which included knowledge of rappelling and various “rope” actions. Grievant properly bid for the position and was accepted, even though he did not have all the prerequisites for the classification, but was required to pursue those courses needed in order to have his bid accepted, but before placement. He had completed most of the course work needed for qualification prior to that. In the pursuit of those courses, grievant was required to utilize his own leave and off duty time while still working his regular job. He asks for overtime compensation for that time added to his regular work load since that additional time was “mandated” time and is compensable under the contract.
This request resulted in the denial of the overtime to the grievant, the basis for the grievance, the submission being:
“Was Lt. Orlando denied his rights under the Collective Bargaining Agreement when the County denied his compensation for what grievant states are mandatory classes?
If so, what shall be the remedy?”
Article 21: B: “Promotions or vacancies shall be filled from eligibility lists ... The certification ...and qualifications shall be determined by the Director of Human Resources...”
Article 23: “The Board of County Commissioners, on its own behalf, and on behalf of the County, hereby retains and reserves unto itself, all powers, rights, authority, duties, and responsibilities conferred upon, and vested in it by the laws and the Constitution of the State of Florida, including Section 447.2009 of Florida Statutes and the United States except as modified by the specific terms and provisions of this contract.
447.209 Public employer’s rights—It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operation ...”
Article 27: Step 3: “... The expenses of the arbitrator shall be paid by the party losing the award...”
Article 47: A: “Employees covered by this Agreement may participate in the County’s General Education Reimbursement Program. The eligibility requirements ... precedent to obtaining reimbursement, will be established by the County. Participation in this program is intended to cover undergraduate/graduate and other course work consistent with the program’s guidelines that are not otherwise covered by the continuing training reimbursement program in Section B below...
C. Any off duty member who is required by the County to attend schools, seminars, or training activities will be compensated at his/her applicable rate of pay.
D. Members of the Bargaining Unit may receive up to forty-eight (48) hours per year... with pay as educational leave to attend school, conferences or seminars of a job related educational nature, subject to the approval of the Director. . . .”
Article 48:B ... “Authorized overtime will be at the rate of one and one-half (11/2) times an employee’s regular rate of pay ...”
Grievant claims he was required to use annual leave and personal time to attend training classes to maintain his bid to Air Rescue Unit. Since those classes were mandated by the County in order to be successful in placement under the bid he feels he is entitled to payment for time spent in “mandated” classes. In this instance, he was required to attend Rope Rescue I and Rope Rescue II classes at his own expense.
The course work in Rope Rescue I and II was completed after bid was accepted. Grievant claims he was, after bid of UE #2 and acceptance under U #3, ordered to complete those courses. This made the courses mandatory and compensable under the contract. The courses were completed properly within the contract’s six (6) month’s window provided. Union claims that members of other specialized units such as Hazardous Materials (HAZMAT) and Tech(nical) Rescue obtained compensation under just such conditions. Further, Article 46 provides for mandatory training to paramedics for recertification as required by Florida law and employees taking such training have their tuition paid with no loss in pay during working hours and receive straight time pay for taking such classes when not on duty.
Since the grievant attended mandated classes, the grievance should be upheld and the grievant should be made whole for any losses sustained by his use of leave time and off duty time at the overtime rate and have all leave time lost reinstated.
The County states that even were the grievant to prevail, the overtime rate is not applicable since the overtime article under the contract Article 48, applies for time in excess beyond regularly scheduled shifts (D), consecutive work assignments situations (E), waiting for relief (E), replacement and equal overtime (F), all of which are based on assignment lists (G), Call backs (H), emergencies (J), and that overtime will be scheduled fairly and equitably (M), et seq. Since grievant’s attending “Rope” classes is not such a situation, overtime does not apply. All other forms of overtime are “discretionary” with management and must be designated as such and authorized with advance permission, which was not granted in this case.
As to HAZMAT and Tech Rescue, these are different, especially in the advance knowledge required for treatment and handling of patients and the various forms of rescue required in advance of, bid/placement acceptance and were not on-the-job trainable aspects.
As to any other possible pays due, grievant was not eligible for any payments under the Educational Reimbursement Article 47, first because the training he took was not for continuing education (CE) while actually serving in a classification in which continuing education was required and second, even were it, he had already used the forty-eight (48) hours permitted for that under the contract. As to the fact that he was not engaged in a CE, his bid acceptance UE #3 carried a footnote indicating that the bid acceptance was “ *pending completion of training”, which was not accomplished until May 16, 2003 for Rope Rescue I and May 23, 2003 for Rope Rescue II.
Grievant knew as of the posting for the vacancy what the qualification requirements were. He was not placed in classification until all requirements were satisfied. Under those circumstances he was not eligible for any “training” pay since he was required to have the skills and qualifications for bidding and acceptance. UE #3 indicates by footnote that bid was in pending stage until grievant satisfied certain course requirements. UE #4 continues that point of view indicating that though the bid award was given grievant, he was not eligible for placement in the classification because he lacked certain qualifications. He was told that in order to be placed as a successful bidder he had to complete training prerequisite requirements. Also, the “mandatory” aspects under various grievant claims are not applicable since the courses were not mandatory as would be the case of CE courses. The County points out, without rebuttal, that since April of 1999 applicants for Air Rescue were required to obtain all skills and qualifications on their own time except for intubation before making a successful bid. Management insists it acted properly under the contract and asks the grievance be denied.
Bid was properly posted and qualifications required were sent to all employees, which qualifications included the courses for which grievant is seeking reimbursement. Qualifications are determined by Director of Human Resources and are sanctioned under his jurisdiction by contract. This right is universally acknowledged by arbitrators, as may be seen by example of Arbitrator B. J. Baroni in Lehigh Portland Cement Co., 105 LA 860, 12/12/1995:
“... Management had the exclusive right to make final determination on ... ability ...”
Once this is determined for any classification, those requirements are made available to all bidders and are known when bid is posted. The opening for the instant vacancy was posted for April, 2003, and grievant acknowledge he knew of the job requirements and qualifications. As Arbitrator David Goodman stated in Phillips Pipeline Co., 105 LA 1132, 2/6/1996:
“Bidding occurs when someone is needed for a job ... The bidding process is something akin to an in-house interview or assessment of qualifications and seniority, to determine if the employee can do the job ... (T)he employer is entitled to exercise its management prerogatives, assess the employee’s ability ... Arbitrator Wayne Geisinger wrote (in U.S. Industrial Chemical Co., 41 LA 348 (1963) that the `ability to do the job is fundamental ... (A) time for orientation ... does not mandate an extended period to acquire new skills and expertise ...’ “(emphasis added)
This determination by management must be made by:
“some objective measure of qualifications ...as to ability ...” Star Manufacturing Co., R.L. Hilgert, 79 LA 868, 9/13/1982. (See also 79 LA 703)
The skills-qualifications requirements are not in question nor is it disputed that they were prerequisites for bid and job placement thereunder. It goes without saying that the various prerequisites and skills are to be brought to the job, not learned by on-the-job training. This was known to the grievant by the skill and knowledge requirements given each employee prior to any bid placement. No extensive analysis must be made to show the need for advance bid knowledge in those areas, i.e. rappelling, various types of rope controls and action, administering of medications and intubation, et al. That knowledge was beyond what was required of paramedics and the contractual compensations for paramedic training.
During the period in question, grievant was still in his old unit. Since the bid acceptance for May 2003 had the “pending” notation, supra, and acceptance/placement was not until October, 2003. The courses he took (Rope Rescue I and II) were not paramedic requirements and not compensable under those contract clauses. He had never been assigned to Air Rescue. He had never been paid as a member of any Air Rescue group before his assignment in October so he was not engaged in mandatory continuing education, but was training to maintain his bid, not to maintain classification. The only “mandatory” nature of that training was the requirement to obtain the prerequisites for the bid/assignment. Neither was he ever paid for any of the time for the other courses he took necessary for the bid, nor did he ever grieve for that time, an acknowledgement that such courses and training were not compensable. Neither can any claim of past practice be found applicable, the grievant admitting the courses in question, though taken subsequent to his working in the bid assignment, were courses due for making the bid and none of the other courses were paid for nor expected to be paid for. The courses here in question were due before the fact of bid and the waiver for their completion in no way were paid for courses no matter where grievant was working. Nor are “Rope” courses compensable under “in-classification” nor advance educational training requirements.
This brings us to the nub of the answer to the grievant’s grievance, an answer which is found in the skill and qualification prerequisites. Prerequisites for a bid carries with it the idea that anyone submitting a bid for a job is presumed to have all the skills and qualifications to perform the job with a minimum of orientation. It does not carry with it any on-the-job training. That is, successful placement under a bid must contain the element that the bidder is immediately ready to perform that job and to take the necessary actions appropriate to and demanded from and by that job classification. It is obvious in this instance that all skills, including the Rope Rescue skills, must be within the job bidder’s abilities at the time of the bid and placement.
At this point we must distinguish between two terms that many have attempted to consider equal, that is “ability”, as opposed to “capability”. The terms “Capability/capable” are found to be defined in Webster’s Collegiate Dictionary, 5th ed. As: “capacity of being ... developed, capable of development.” “Ability”, on the other hand, is that “Power to perform, qualified, showing mastery,” “Able” stresses “the possession of positive power,” which is thought of as tending toward action. “Capable” lays emphasis on less active, often inherent qualities which suggest trainability. The only conclusion we can reach is that the courses required (mandated?) to show present ability are those the grievant took and was taking, in this instance the Rope Rescue I and II, for which he was seeking remuneration. Since these were prerequisites to a successful bid, they do not become “mandated”, and they do not fall within the purview of any contract remuneration clause.
It seems we must consider the use of the word “mandate.” This defined in Webster’s Collegiate Dictionary, ibid. As “... An authoritative command ...” Further, if we look at its contractual use, the word is not utilized in the contract. It is thrown around as a substitute for “requirement”, that is, if it is a prerequisite requirement to make a successful bid, it is seen as “mandated.” However, this is a semantic convolution since a prerequisite is “required before, as a preliminary to” a specific end. i.e. “Essential as a condition precedent”. No bid is successful no matter how long an individual may have helped out in any particular venue unless and until he has met those precedent conditions. The contract’s mandated courses are those as have been noted for use in maintaining a position already successfully bid upon, placed in, and working within that bid classification. It is not for on-the-job training. There can be no misconstruing Mr. Earle’s response that “he (Lt. Orlando) had to take the class...” was anything more than the statement of a bid qualification specification, which Lt. Orlando had not met, to make a successful bid. Further, the February 12, 2003, bulletin to the contrary, Lt. Orlando was not an active member of the specialty team when he made his bid.
There is a difference between “mandating” what courses are needed in order to bid for any new position (classification) and “mandating what courses are required to retain a classification already attained. The former does not include on-the-job training (and compensation therefor), whereas the latter is a compensated course as per contract to retain a classification.
The grievance is denied.