In re Unified Government of
Wyandotte County-Kansas City Fire Department
International Association of Firefighters, Local 64
126 LA (BNA) 609
May 4, 2009
Mark Berger, Arbitrator.
The arbitration between the Unified Government of Wyandotte County - Kansas City, Kansas Fire Department and the International Association of Firefighters Local 64 was conducted based upon stipulations of the parties.
The parties offered differing versions of the issue presented in the instant proceeding. In this Arbitrators judgment, the following issue statement will permit all relevant disagreements to be addressed.
Based on a newly adopted local ordinance, was the Kansas City, Kansas Fire Department permitted to unilaterally implement a policy prohibiting all smoking within all enclosed Department facilities consistent with its obligations to the Union, and if not what remedy is appropriate?
The parties stipulated that the instant Arbitrator has jurisdiction to resolve the dispute.
The Kansas City, Kansas Fire Department, which is a unit of the Unified Government of Wyandotte County, provides firefighting services within its geographical area. The Departments firefighting personnel holding the rank of Captain and below are represented by the International Association of Fire Fighters Local 64. The Department, as a unit of the Unified Government of Wyandotte County, and the Union have a collective bargaining relationship which is reflected in a Memorandum of Agreement running from 2007 through 2009. The instant arbitration arose under that agreement.
During collective bargaining negotiations the parties discussed and agreed upon a provision related to smoking within Department facilities stating as follows:
Smoking shall be prohibited upon all UG property and apparatus, except upon the fire apparatus floors.
This provision appears as Section 30.4 of the Memorandum of Agreement.
Beyond that, the parties also agreed to a contract clause establishing the relationship between provisions of the Memorandum of Agreement and legislative enactments of the Unified Government of Wyandotte County. Specifically, in Article 33 of the Memorandum of Agreement the parties included the following language:
Any conflict that may exist between existing UG ordinances and provisions of this Memorandum shall be determined in favor of this Memorandum.
Thus, the governmental entity responsible for negotiating the Agreement made between the parties accepted a clause that has the effect of making provisions of the Memorandum of Agreement preemptive over United Government ordinances.
The instant grievance arose following the adoption by the Unified Government of Wyandotte County of an ordinance banning most public indoor smoking. Relevant provisions of the ordinance state that:
Smoking shall be prohibited within all enclosed places of employment within the City and on public sidewalks abutting health care facility property lines.
Employers within the jurisdiction of the Unified Government are required to maintain a no-smoking policy containing the following requirements:
Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges or breakrooms, stairs, restrooms, vehicles, and all other enclosed facilities.
The ordinance was adopted as a law of general applicability. There are a number of exceptions contained within Section 7 of the ordinance, but none of them are applicable to enclosed facilities of the Kansas City, Kansas Fire Department.
Subsequent to the adoption of the no-smoking ordinance by the Unified Government, the Chief of the Kansas City, Kansas Fire Department issued a Memorandum barring all smoking within any enclosed facility of the Department. The Memorandum contained language quoting from the Unified Government ordinance, particularly stating its applicability to all other enclosed facilities. This was amplified by a statement stating that:
All personnel are advised that smoking is prohibited in any enclosed facility. This would include all Fire Stations and apparatus bays.
The Chief's Memorandum contained no exception for fire apparatus floors as provided in Section 30.4 of the Memorandum of Agreement between the Unified Government and the Union. This led the Union to file a grievance claiming that the Fire Department policy was in violation of provisions of the Memorandum of Agreement. That grievance is the subject of the instant arbitration.
Relevant Contract Provisions
Article 30 Physical Fitness
Smoking shall be prohibited upon all UG property and apparatus, except upon the fire apparatus floors.
Article 33 Memorandum of Agreement
… Any conflict that may exist between existing UG ordinances and provisions of this Memorandum shall be determined in favor of this Memorandum.
Relevant Fire Department Policy
… All personnel are advised that smoking is prohibited in any enclosed facility. This would include all Fire Stations and apparatus bays.
Relevant Provisions of Unified Government Ordinance No. 0-91-08
Section 4: Prohibition of Smoking in Enclosed Places of Employment
a. Smoking shall be prohibited within all enclosed places of employment within the City and on public sidewalks abutting health care facility property lines.
* * *
c. Every employer having any enclosed place of employment located within the City of Kansas City, Kansas shall adopt, implement, publish and maintain a written smoking policy which shall contain the following requirements:
Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges or breakrooms, stairs, restrooms, vehicles and all other enclosed facilities. (Bold in original).
The enactment of the Unified Government ordinance banning smoking within enclosed areas of employment is consistent with a general trend around the country to reduce public exposure to secondhand smoke. In some parts of the country smoking bans have been enacted on a statewide basis, while in other areas, such as within the State of Kansas, the matter is handled by local ordinance. This Arbitrator is not aware of any such law being held unenforceable. Instead, smoking bans are generally viewed as within the power of government under its general authority to promote public health and welfare.
Typically, such smoking prohibitions are enacted as laws of general applicability. They identify areas where smoking is prohibited while often providing limited exemptions covering general categories of situations. It would be highly unusual for such a law to treat a specific area such as fire apparatus floors as locations where a smoking ban would not apply. However, there is no reason to believe that an exemption for the fire apparatus floors would have been deemed impermissible had it been included in the ordinance.
It is also true that the Unified Government of Wyandotte County is authorized by the laws of the State of Kansas to execute labor agreements with public sector labor unions. As the employer in a collective bargaining relationship, the Unified Government is obligated to negotiate with the Union over terms and conditions of employment. In this regard, discussions between the Unified Government and the Union over the terms of a smoking ban applicable to the Fire Department were entirely appropriate. The resulting ban that the parties agreed upon, which excluded fire apparatus floors, reflects an entirely permissible compromise between a total smoking ban and the absence of any smoking prohibition.
It was also entirely appropriate for the Unified Government to agree to give the Memorandum of Agreement primacy over any laws that the Unified Government might adopt during the term of the agreement. What this in effect does is to guarantee the sanctity of the labor agreement for its defined term, which in this case runs from 2007 through 2009, by preventing the Unified Government from going back on its labor contract promises by enacting contrary legislation.
Understandably, following the enactment of the no-smoking ordinance by the Unified Government, the Chief of the Fire Department sought to implement its terms. However, the enforceability of the Departments total smoking ban within all enclosed areas differs from the language of Section 30.4 of the Memorandum of Agreement which specifically exempts fire apparatus floors. That exemption is a clear and unambiguous provision that the parties fully understand. There is no claim that the parties have at any time disputed what this exemption means.
Under the traditional labor arbitration doctrine that arbitrators must enforce the plain meaning of the contract the parties negotiated, 1 Firefighters would remain free to smoke on fire apparatus floors as permitted by the Memorandum. The question presented in this arbitration, however, is whether the general smoking ban contained in the newly-adopted local ordinance, which became official Fire Department policy, or the specific exclusion contained within the Memorandum of Agreement takes precedence.
The answer to the question presented in this arbitration is dictated by the language contained in Article 33 of the Memorandum of Agreement. It specifically provides that provisions of the Memorandum supersede any Unified Government ordinance. Once the smoking prohibition ban was passed, it became an existing ordinance and thus is subject to the preemptive role given to the provisions of the Memorandum of Agreement.
The Unified Government suggests that “existing” as used in the Memorandum should be narrowly defined to exclude contradictory legislation if its enactment follows execution of the labor contract. However, in this Arbitrator's judgment such an interpretation would render the clause virtually meaningless. The only substantive purpose of the clause is to protect the labor agreement from being undermined by subsequent legislation, a goal that could not be achieved if the Unified Governments theory was accepted.
It might seem at first blush that a labor contract should not be allowed to supercede a lawfully-adopted local ordinance. However, several factors justify this result. Initially, the very government that enacted the smoking ban also was responsible for negotiating the Memorandum of Agreement with the Firefighters Union. In negotiating the Agreement the Unified Government effectively promised the Union that the provisions of the Agreement would remain in force for the term of the Agreement, and the Unified Government would not be able to render the Agreement meaningless by enacting contrary legislation.
While the instant arbitration concerns a limited smoking ban exemption, one can imagine a situation where a government would legislate away more central and substantive provisions of the labor agreement that the government itself had entered into. For example, the Memorandum of Agreement would normally contain a wage structure for covered personnel. If the leadership of the local government changed and the new leadership did not like the wage structure, could it proceed to enact a local ordinance reducing all wages of personnel covered by the Memorandum of Agreement? If so, it would effectively render the collective bargaining process virtually meaningless except to the extent that the employing government chose to voluntarily abide by its promises. All that Article 33 of the instant labor agreement does is to confirm that the Unified Government agrees to be legally bound by its Memorandum of Agreement promises. This objective is achieved by preventing the Unified Government from using the legislative process to undermine the labor agreement.
This result is also supported by the fact that labor agreements are of limited terms. In the instant case all that the language of Article 33 of the Memorandum of Agreement does is to require adherence to the terms of the contract for the period of its duration. In effect this means that the exclusion to the smoking ban contained within Section 30.4 of the Agreement will remain in effect until the end of 2009. The parties are free to reconsider the issue and reach a new agreement that may well serve to end the conflict. This is just how the collective bargaining process is supposed to work.
Generally, labor arbitrators consider themselves bound by the terms of the labor agreement they are interpreting. This decision is entirely consistent with that governing principle. There may be some extreme circumstances which would require a labor contract to be superseded by overriding public policy interests. While a smoking ban such as the one enacted by the Unified Government clearly represents a public policy aimed at furthering public health and welfare, it does not reach the extreme level that would warrant ignoring the provisions of the Memorandum of Agreement that the parties voluntarily negotiated.
The Unified Government cited cases reflecting the principle that contracts violating public policy are void and unenforceable in Kansas legal proceedings. 2 In a parallel fashion, the U.S. Supreme Court has held that private sector labor arbitration awards violating clearly defined public policies are similarly unenforceable. 3 In the instant labor arbitration setting, however, this Arbitrator does not believe that the principle relied upon by the Unified Government calls for overturning the labor contract provision at issue.
First, it should be noted that the Unified Government itself made the commitment to honor the labor contract for its full term and not use the legislative process to undermine that agreement. Second, the exemption from the no-smoking ban is a narrow one which is expiring in the near future. Finally, the ordinance itself contains some exemptions, although the fire apparatus floors would not be covered by them. In this Arbitrators judgment, the setting is not one that would call for the application of public policy theory to invalidate the parties agreement to permit smoking on fire apparatus floors.
Nothing in this opinion is intended to reflect on the propriety of the Unified Government no-smoking ordinance. Enacting that legislation was a judgment entirely committed to the Unified Government legislative process. Indeed, the issue of smoking was not ignored in the Memorandum of Agreement which sharply curtails the areas in which smoking may take place, although it did contain a limited exemption.
However, it is this Arbitrator's judgment that the Unified Government agreed to defer the impact of any new legislation, including the smoking ban, where it would conflict with the terms of the Memorandum of Agreement it negotiated with the Firefighters Union. There is no public policy basis that would justify overriding that commitment.
Consequently, the Memorandum of the Chief of the Fire Department banning smoking in all enclosed work areas of the Department is void to the extent that it conflicts with section 30.4 of the Memorandum of Agreement. Therefore, the Department may not enforce the policy contained in the Chiefs Memorandum with respect to the fire apparatus floors.
The Kansas City, Kansas Fire Departments total ban on smoking within enclosed areas of its facilities conflicts with section 30.4 of the Memorandum of Agreement which exempts fire apparatus floors from the labor contracts smoking prohibition. Pursuant to Article 33 of the Memorandum of Agreement, which gives primacy to the terms of the Memorandum of Agreement over conflicting local ordinances, the smoking ban implemented by the Fire Department may not be enforced with respect to the fire apparatus floors. The Kansas City, Kansas Fire Department No Smoking Policy shall therefore be revised to exempt fire apparatus floors from its coverage.
1. Cases cited by the Union illustrate the application of this principle. E.g., Smith and Loveless, Division of Union Tank Car Co., 65-2 ARB 8765 (Doyle, 1965); Ellicott Machine Corp., 71-1 ARB 8032 (Hardy, 1970); Kennecott Copper Corp., 70-2 ARB 8849 (Abernathy, 1970).
2. As noted by the Kansas Supreme Court, “[c]ontracts that are illegal or that violate public policy are void and unenforceable.” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 39; 59 P.3d 1003, 1017 (2002). See also, Hossain v. Rauscher Pierce Refsnes Inc. , 46 F.Supp.2d 1164, 1168-1169 (D.Kan. 1999), aff'd, 15 Fed.Appx. 745 (10th Cir. 2001).
3. Eastern Associated Coal Corp. v. United Mine Workers, District 17, 531 U.S. 57 (2000); United Paperworkers International Union v. Misco, Inc., 484 U.S. 29 (1987).