City of Urbana
Urbana Firefighters Assn.
I.A.F.F. Local 1823
119 LA (BNA) 1078
FMCS Case No. 041202/01725/6
February 29, 2004
Louis V. Imundo Jr., Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Nature of the Case
This case pertains to a dispute regarding the interpretation and application of language in the Agreement. The event that gave rise to the instant grievance was the Chief’s decision to transfer a less senior employee than the Grievant to fill a vacancy in another Unit.
It was the Union’s position that seniority is significant in many of the provisions in the Agreement. It was the Union’s position that historically the senior employee who sought a transfer to a shift where a vacancy existed always got the transfer, and Mr. Massie’s situation was the first where a junior employee was given the transfer over a senior employee when both individuals wanted to be transferred to the vacant position.
It was the Union’s position that the Chief’s unilateral decision contravened well-established past practice, and was harmful to the Grievant because he lost out on many more opportunities to work overtime, schedule time off, and get additional experience as an acting Captain. It was the Union’s position that the Chief’s decision was arbitrary and that there was no observable benefit from it to the Division, the City, or the community.
It was Management’s position that there is nothing in the Agreement that delimits the Chief’s authority to make decisions on transfers from shifts to fill vacancies. It was Management’s position that past practice does not support the Union’s position, and that the Chief’s decisions have always been based on what he determines to be in the best interests of the Fire Division. It was Management’s position that the Chief harbored no animus toward the Grievant.
Applicable Articles and Sections of the Agreement
Article 3-Management Rights
Except as specifically limited herein, the Employer shall have the exclusive right to manage the operations, control the premises, direct the working forces, and maintain efficiency of operations. Specifically, the Employer’s exclusive management rights include, but are not limited to, the sole right to hire, discipline and discharge for just causes, lay off, and promote; to promulgate and enforce reasonable employment rules and regulations; to reorganize, discontinue or enlarge any department or division; to transfer employees, including the assignment and allocation of work methods; to determine the size and duties of the work force, the number of shifts required, and work schedules; to establish modify, consolidate or abolish jobs (or classifications); and to determine staffing patterns, including but not limited to, assignment of employees, duties to be performed, qualification required and areas worked, subject to the restrictions and regulation governing exercise of these rights as are expressly provide herein and as permitted by law.
* * *
Article 27-Grievance Procedure (in part)
The expenses of the arbitrator shall be borne equally by the Employer and the Union, unless such are paid by the State of Ohio or any other party.
The findings and determination of the arbitrator shall be binding upon all parties concerned for grievances brought before it in the above described manner and for grievances or disputes falling within the scope of the provision.
The Parties agreed to a joint stipulation of the Issues to be decided by the Arbitrator.
The Issues are:
• Did Management violate the Agreement when they denied the Grievant’s request for transfer to a Unit?
• If Management violated the Agreement what is the appropriate remedy?
The following has been taken from the Arbitrator’s notes, recording of the Hearing, testimony of witnesses, and documentary evidence.
In his opening statement Mr. Dale made the following points to support the Union’s position:
• The Chief’s decision did not result in any observable benefit for the Fire Division, the community, or the City.
• The Chief’s decision caused the Grievant to suffer financial harm.
• The Chief unilaterally decided to transfer someone from C Unit to A Unit. Two Firefighters requested to be transferred. The chief picked the junior Firefighter. That is the root of the dispute.
• The Agreement clearly outlines the significance of seniority for overtime opportunities and scheduling vacation.
• The Grievant’s opportunities for overtime and scheduling of vacation time off have been so grievously affected that fairness dictates that some overwhelming organizational existed that would have necessitated that Mr. Massie not be given the transfer he sought.
• The Chief has not, or cannot offer any explanation for his arbitrary exercising of Management’s rights.
• In the five months since he was denied the transfer Mr. Massie has been offered overtime 46 times instead of the 81 times such would have been offered to him had he been transferred. One hundred forty seven hours of overtime were offered instead of 355 hours. This amounted to over $7,000.00 in lost overtime opportunities.
• Minimum staffing of 12 hours or more were offered to Mr. Massie zero times. If he had been transferred he would have been offered such six times for a total of 108 hours of overtime. This amounted to another $3,700.00 of potential overtime that he lost.
• Mr. Massie has zero hours as acting Captain. If he had been transferred he would have had 326 hours as acting Captain. The monetary benefit for him would have amounted to $262.00. However, he lost 326 hours of supervisory experience.
• On C Unit Mr. Massie had to get approval from two senior personnel to schedule time off. As the senior Firefighter in A Unit Mr. Massie would have had carte blanc on getting time off.
• In his August 20th memo denying the transfer the Chief gave as a reason that presently A Unit runs very efficiently whether Captain Evans is there or not. He further wrote that Mr. Massie would do an excellent job as an acting Captain.
• At the September 17th grievance meeting the Chief offered as the compelling reason not to move Mr. Massie that he was the C Unit Fire Safety Inspector and he needed to stay on C Unit because A Unit had a Fire Safety Inspector. However, subsequent to that meeting he moved Mr. Massie to B Unit, which has a Fire Safety Inspector, assigned to it.
In his opening statement Mr. Blaugrund made the following points to support Management’s position:
• The crux of the dispute is whether or not Management has the right to make transfers/assignments.
• Management has historically had the unfettered right to transfer employees.
• The Chief harbors no animus toward the Grievant.
• Mr. Blaugrund submitted a comprehensive written statement of Management’s position into the record.
Mr. Dale called himself as the Union’s first witness. Mr. Dale testified about the various documents he reviewed in arriving at the determination of how much potential income the Grievant lost as a result of being denied the transfer to C Unit. Mr. Dale submitted into the record, copies of the compilations he prepared.
Mr. Blaugrund cross-examined. Mr. Blaugrund pointed out to Mr. Dale that offered overtime is not the same as worked overtime. The witness concurred. Mr. Blaugrund asserted that it is unknown how many hours of offered overtime Mr. Massie would have worked. The witness concurred, but made the point that in the relief requested Mr. Massie is seeking payment for the percentage of hours that he would have worked.
Mr. Dale called Mr. Christopher Massie as the Union’s second witness. Mr. Massie testified that he was assigned to the A Unit. Mr. Massie testified that with respect to seniority there was a Captain and two Firefighters above him. Mr. Massie said he was in the fourth position with respect to minimum staffing, recall, overtime, vacation, and compensatory time. The Grievant testified that if he had been transferred to A Unit (shift) he would have been the senior Firefighter second only to the Captain. Mr. Massie testified that he was involuntarily re-assigned to the B Unit.
Mr. Massie testified that the only reason he was given for not being transferred to A Unit was because he was a shift Inspector on C shift. Mr. Massie testified about why he worked only a small percentage of the overtime that had been offered to him during the time he was assigned to C Unit.
Mr. Blaugrund cross-examined and Mr. Dale redirected a number of times. The witness’s testimony was not significant with respect to the disposition of the matter at issue.
The Arbitrator questioned Mr. Massie. Mr. Massie testified that in his 15 years of experience the senior Firefighter on the shift who asked to be transferred was the person who was transferred. The Arbitrator asked Mr. Massie what provision(s) of the Agreement does he believe that the Chief violated in awarding the transfer to a less senior Firefighter than himself? Mr. Massie’s answer was that seniority is controlling in many sections of the Agreement. The witness said he realizes that seniority is not controlling in transfer situations as per the Agreement, but that past practice has always been to recognize seniority. Mr. Massie further testified that he believes that the Chief’s not transferring him to A Unit was personal.
Mr. Massie testified that the past practice in the Division has been to ask Firefighters by seniority if they wanted to transfer and if no one wanted to be transferred the junior Firefighter was forced to transfer. Mr. Massie testified that in his 15 years of service no senior Firefighter who wanted to transfer to be the senior Firefighter on another shift was denied the transfer. The Arbitrator asked the Grievant what he meant when he said he thought that the Chief’s denying his request was personal? The Grievant’s answer was vague and non-specific. The Grievant said there was no animus between the Chief and him before the event that gave rise to the instant grievance occurred.
Mr. Blaugrund recross-examined. Mr. Massie reiterated that he believed that the Chief’s decision was personal because he was subsequently involuntarily transferred to B shift. Mr. Blaugrund pointed out to Mr. Massie that a few years ago Mr. Lyons was in a similar situation and his request to be transferred was denied. The witness said he knew about this situation.
Mr. Dale redirected. Mr. Massie said that he does not have first hand knowledge about all transfers within the Fire Division. Mr. Dale said to the witness that in Mr. Lyons’ situation no transfer occurred. The witness agreed.
The Arbitrator requestioned Mr. Massie. Mr. Massie testified that in the 15 years he has been with the Fire Division whenever a vacancy existed on a shift the manner in which it has been filled has been to go to the shift where the transfer is to occur from and by seniority ask Firefighters who wants to be transferred. If no one has asked to be transferred, or if everyone declines the offer of transfer, the least senior Firefighter is transferred.
Mr. Blaugrund recross-examined. Mr. Blaugrund, noting Mr. Massie’s answer to the Arbitrator’s question, asked him if what he claims is the practice is correct, something Management disagrees with, where in the Agreement does it require that seniority controls transfers? Mr. Massie answered: “The contract, as we stated at the beginning is silent on some issues regarding that, and then eludes to seniority in other instances.”
The Union rested.
Mr. Blaugrund called Mr. James McIntosh as Management’s only witness. Chief McIntosh testified that he has been employed at the Fire Division since 1974 and has been the Chief since 1991. Chief McIntosh testified that before he became the Chief the practice with respect to transferring employees was that the former Chief transferred employees whenever he got mad at them. The witness testified that his practice with respect to transferring employees is to consult with the shift Captains before deciding whom to transfer and that seniority has nothing to do with the decision. Mr. Blaugrund asked the witness what factors he takes into consideration in making shift transfer decision? Mr. McIntosh answered: “Basically who gets along with who, who can do what the best. We got specialties that are spread around.” Mr. Massie said there was nothing personal about his decision not to transfer Mr. Massie, and that they have always gotten along well.
Mr. Blaugrund asked Chief McIntosh if there is anything in the Agreement that limits his authority in making assignments or transfers based on his judgment? The witness answered no. Mr. Blaugrund asked the witness if the Management’s Rights clause gives Management the authority to make transfers and assignments? The witness answered yes. Mr. Blaugrund asked the witness if there is anything in the Agreement, which says that seniority must be used in making transfers and assignments? The witness answered no.
Mr. Blaugrund directed Chief McIntosh to the document titled: “Duties Of The Fire Chief”. Mr. Blaugrund asked the witness if there is anything in the document that addresses the ability to assign or transfer employees? The witness answered yes, and referred to Article 7- “The Chief of the department shall have exclusive control of the assigning and transferring of all officers, firefighters, and employees in the department.” The witness said that he has done such without regard for seniority for tenure as the Chief. The witness then said that did make an exception to this practice in Mr. Massie’s case for the following reason: “A Unit, the shift he wanted to go to was running exceptionally well, fantastic. Chris, with his seniority, would become senior Firefighter on that Unit. And I didn’t want to take that chance of him not working out as well as the shift was now. In other words I’d be taking a chance I didn’t want to take.” Mr. Blaugrund asked the witness if, in Mr. Massie’s case seniority was something of a reverse factor? The witness answered yes. Mr. Blaugrund asked Chief McIntosh if the manner in which he decided Mr. Massie’s request was consistent with the way he has done it over the years in terms of looking at all of the various factors to determine was the best mix of Firefighters would be on a particular shift? The witness answered yes.
Mr. Dale cross-examined. Mr. Dale asked Chief McIntosh if there have been other occasions where, except for Mr. Massie, he had not always transferred the senior Firefighter who had asked to be transferred to fill a vacancy? The witness answered yes, and named Mr. Lyons. Mr. Dale asked the witness who was transferred instead of Mr. Lyons? The witness answered that no one was transferred.
The following verbal exchange occurred between Mr. Dale and Chief McIntosh. Mr. Dale: “Is there any other situation where someone was transferred instead of the senior person who wanted to transfer?” Chief McIntosh answered: “Sorry, John I couldn’t answer that.” Mr. Dale: “You can’t recall.” Chief Massie: “1 can’t recall.” Mr. Dale: “So you can’t recall any event where you transferred the junior person over the senior person.” Chief McIntosh: “There, as you know there have not been many people who have asked for transfers. And hardly ever do two people recall of such an instance.” Mr. Dale: “Okay, so that does make this somewhat different. Here you transferred a junior over a senior person which, to your recollection, has not occurred in the past.” Chief McIntosh: “1 can’t remember running into this situation before if that’s what you’re asking.”
The Arbitrator questioned Chief McIntosh. Chief McIntosh testified that there have been other occasions when someone other than the senior Firefighter was transferred to fill a vacancy. The Arbitrator directed Chief McIntosh to his August 20, 2003 letter, and after pointing out to him that apparent inconsistency with his testimony and what is contained in the letter asked him what he meant when he wrote in the second paragraph? The witness reiterated his prior testimony that the Unit was running very smoothly and he did not want someone else, be it Mr. Massie or someone else, to serve as the acting Captain when Captain Evans was not there. The Arbitrator asked the witness if he always relies on the same factors when considering people for transfers to fill vacancies? The witness’s answer was essentially that he does not.
Mr. Blaugrund redirected. The witness testified that Mr. Keller who was on A shift serves as the acting Captain whenever Captain Evans is not there. Mr. Blaugrund if the guiding principle he follows in making transfer decision is what is in the best interests of the Department? The witness answered yes.
Mr. Dale recross-examined. The witness’s testimony did not add to, or subtract from what was already in the record.
The Parties rested and presented oral closing arguments.
In his closing argument Mr. Dale made the following points to show that the Union had proved their case:
• The Chief is very firm in his opinion that Mr. Massie would do well if he were transferred to A Unit. However, he contradicted himself when he said that he couldn’t take the chance of upsetting the apple cart, despite the fact that Mr. Massie has no history of upsetting apple carts.
• The Chief claims that seniority is not a factor in transfers to fill vacancies. However, in this instance Mr. Massie’s seniority was considered, and it worked against him.
• The Chief cannot recall ever transferring a junior Firefighter over a senior Firefighter to fill a vacancy. However, he did so in this case.
• Mr. Massie was treated unfairly. Mr. Massie is a good employee with an excellent work record.
In his closing argument Mr. Blaugrund made the following points to show that the Union had failed to prove their case:
• To quote Mr. Spock from Star Trek: “The needs of the many outweigh the needs of the few.” The Chief got a recommendation from the Captain of A Unit and this was one of the factors that influenced his decision. The Chief honored the request.
• The Agreement was not violated. There is no language that restricts the Chief to making transfers based solely on seniority.
• There is no past practice to support the Union’s position. The situation at issue was unique.
• The Chief had the proper authority to do what he did.
• There was no personal or anti-union animus.
• There was nothing arbitrary or capricious about the decision.
• The instant grievance lacks merit and should be denied in its entirety.
Issue No. 1
Did management violate the agreement when they denied the grievant’s request for transfers to a unit?
Article 3 of the Agreement provides Management with certain rights and these rights are delimited by other provisions of the Agreement. The Arbitrator finds that the Agreement is silent with respect to seniority being the controlling factor in requested transfers to fill vacancies. This finding would appear to render the instant grievance moot. However, this is the matter of past practice to consider, and whether the Chief’s decision was arbitrary and/or capricious.
It is well established that under certain circumstances custom and past practice may rise to the level of importance that it is deemed to be shadow language in a parties negotiated labor agreement. These customs and past practices would have to be viewed as being part of the conditions of employment in order to warrant consideration as being a part of the parties’ whole agreement. It is also a well-established tenet of labor-management relations that in order for a past practice to be binding on the parties it must satisfy certain requirements. They are:
• It must be of personal benefit to a significant number of employees.
• It must be unequivocal, i.e., clear, unambiguous.
• It must be well recognized and totally accepted as evidenced by it having been consistently applied or followed over a lengthy period of time.
These requirements are not necessarily all inclusive, nor are they precise. Whenever it is argued that a past practice is an implied part of the parties’ agreement arbitrators must not only consider the practice on its face they must also consider the environment within which it exists or existed.
In the Arbitrator’s opinion seniority rights are among the most, and arguably the most important rights to bargaining unit employees. These cherished rights are often found to be controlling, or at a minimum significantly influencing in the treatment of employees by employees. The arguments favoring and disfavoring the application of employee seniority to the many facets of the employment relationship are endless. Unions favor the application of seniority to most matters affecting employees because it severely limits, or even prohibits managements from exercising discretionary judgment. Managements generally disfavor the application of seniority to personnel decisions because it restricts their ability to make what they view as being the best decision and/or course of action under ever changing circumstances and conditions. In general, it can be said that the more employees trust Management the more willing they are to accept their exercising of discretionary judgment. Conversely, the less employees trust Management the less willing they are to accept their exercising of discretionary judgment. Two excellent examples of where employees do not generally trust Management to always be fair and objective in decision making is in judging employee performance for raises and promotions. When seniority governs wage increases and/or promotions there is little if any room for discrimination based on anything and everything but job performance.
It was the Union’s position that a well established, consistently followed past practice of transferring the senior Firefighter who requested to be transferred to fill a vacancy in another Unit exists in the Fire Division. Mr. Massie testified that in his first 15 years of service with the Division his was the first case where, when two or more Firefighters had asked to be transferred to fill a vacancy on another shift, that the senior Firefighter was not given the transfer. The record establishes that although Chief McIntosh claimed that he did not consider employee seniority in making voluntary transfer decisions to fill vacancies on other shifts, except for the situation involving Mr. Lyons which the Arbitrator views as an anomaly because the vacancy was not filled, the senior Firefighter was the person who always got the transfer. The record further establishes that in the Grievant’s case his seniority was considered, and it worked against him because he would have been first in line to be the acting Captain something Captain Evans, the A Unit Captain, did not want.
Chief McIntosh’s August 20, 2003 letter to the Grievant notifying him of the decision to deny his request for a transfer reads as follows:
“On August 16, 2003, I received your correspondence asking for a transfer to A unit. It is commendable that you are looking to the future with the thought that being in a position whereby you would be in an Acting Captain position would help with a promotion. While I’m positive that you, as well as several others would do an excellent job as an Acting Captain, this has never been taken into consideration or helped when there has been a promotional test.
At the present time, A unit runs very efficiently whether Captain Evans is here or not. He is impressed with the operation. Therefore, Captain Evans has asked that his second in command remain in that position. I agree with his position.
This in no way should be construed in such a manner to suggest that you could not handle the responsibility or would not do an excellent job as an Acting Captain. As stated, I’m sure you would fit in very well and make a unit run smoothly. However, at the present time, you will not be transferred.”
The record establishes that the above cited is consistent with Chief McIntosh’s testimony at the Hearing. In the Arbitrator’s opinion, Chief McIntosh had one, and only one reason for denying the Grievant’s request and that was he did not want to risk harming Unit cohesiveness by transferring Mr. Massie despite the fact that Mr. Massie, in all respects is a good employee who gets along well with coworkers and supervision including the Chief. In the Arbitrator’s opinion Chief McIntosh’s reason is specious. In the Arbitrator’s opinion, Management offered no substantive evidence whatsoever to support Chief McIntosh’s belief that transferring the Grievant would have been overly burdensome, or would have adversely affected Unit cohesiveness.
In the Arbitrator’s opinion Chief McIntosh’s inconsistent and at times contradictory testimony served to diminish his credibility as a witness. Chief McIntosh testified that seniority is never considered in voluntary transfer decisions to fill vacancies, but he concurred with the Union’s contention that Mr. Massie was the first senior employee who did not get a requested transfer to another unit where a vacancy existed and the position was filled. The record establishes that since 1991 when Chief McIntosh was given the Chief’s job there have been other instances where employees have been voluntarily transferred to fill vacancies on other shifts and, as stated, the senior employee always got the transfers when the vacancy was filled. As stated, Chief McIntosh could not recall one instance in the 13 + years he has been the Chief when a junior Firefighter was selected over a senior Firefighter to fill a vacancy in another Unit and the vacancy was filled. This fact leads the Arbitrator to conclude that seniority has been a defacto considered criterion. In the Arbitrator’s opinion, Chief McIntosh’s claim that seniority has not been a criterion was further discredited when he testified that Mr. Massie’s seniority was not only considered, it was the only reason he did not get the position because if he had he would have been first in line to be the acting Captain, something Captain Evans did not want to see happen.
In the Arbitrator’s opinion seniority rights are sacred to unions and their members. Employee seniority rights are a major condition of employment and are of personal benefit to nearly all, if not all bargaining unit employees. In the Arbitrator’s opinion, the Division, until Mr. Massie was bypassed for the transfer to fill a vacancy in A Unit, had a well established consistently followed past practice of awarding voluntary shift/unit transfers to the senior employee. In the Arbitrator’s opinion this past practice rises to the level of being shadow language in the Agreement.
In conclusion, for all the aforementioned reasons it is the Arbitrator’s opinion that Management violated what was tantamount to shadow language in the Agreement when Mr. Massie was denied his request for a transfer to fill the vacancy in A Unit.
In the Arbitrator’s opinion Chief McIntosh’s decision was arbitrary, but it was not based on any animus toward Mr. Massie.
Issue No. 2
If management violated the agreement what is the appropriate remedy?
The appropriate remedy is for Mr. Massie, if he still so desires, to be transferred to A Unit. Mr. Massie is to be paid $262.96 for the hours he would have worked as the acting Captain in A Unit. The record establishes that Mr. Massie had a history of working only six (6) percent of the overtime hours offered to him when he worked in C Unit. In the Arbitrator’s opinion it is pure conjecture to say how much more of the offered overtime he would have worked had he been transferred to A Unit. In the Arbitrator’s opinion, the six (6) percent should be applied to calculating monies owed to him for missed overtime opportunities in A Unit. Mr. Massie is entitled to be paid for six (6) percent of the difference between the overtime offered to him and the overtime that he would have been offered in A Unit from the date the transfer should have occurred to the date this Award is implemented.
The instant grievance is sustained. Without undue delay Mr. Massie, if he still so desires, is to be transferred from B Unit where he is currently assigned to A Unit. Mr. Massie is to be paid $262.96 for the hours he would have worked as the acting Captain in A Unit. In addition he is to be paid for six (6) percent of the difference between the overtime offered to him and the overtime that he would have been offered in A Unit from the date the transfer should have occurred to the date that this Award is implemented.