International
Association of Fire Fighters, Local 1433
And
City
of
Interest
Arbitration
Arbitrator: Thomas F. Levak
Date
Issued:
Arbitrator: Levak; Thomas F.
Case #: 08351-I-90-00189
Employer:
City of
Date Issued:
BEFORE THE INTEREST ARBITRATION PANEL
THOMAS F. LEVAK, NEUTRAL
In the Matter of the Interest
Arbitration Between: PERC No. 8351-90-189
FMCS No. 90-09735
CITY OF
The City NEUTRAL
ARBITRATOR 'S
OPINION
AND AWARD
and
INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS, LOCAL 1433
The
On
Arbitrator) rendered an
Opinion and Award between the
parties
covering a number of subjects. The
subject of "fire
code
enforcement work, however, was not a part of that
arbitration by
the Executive Director
of the Public
Employment Relations
Commission (herein PERC), pending the
resolution of
certain unfair labor
practice matters
involving the parties. subsequently, by letter dated April
11, 1991, the Executive Director notified the parties and
the Arbitrator
that the withdrawal was terminated and
that
the matter was
remanded to the interest
arbitration panel
for
further proceedings
The parties subsequently decided
to litigate the
remanded
matter through written briefs. The City's brief was
received
on
on
of the parties,
the arbitrator decides
and awards as
follows:
I. THE EMPLOYER'S PROPOSAL
The
Arbitrator's
term of the subject collective
bargaining agreement (herein
the
Agreement) as
The City proposes that the following. provision
be added to
that
Agreement:
FIRE CODE ENFORCEMENT WORK
The employer and
the union acknowledge
that
enforcement of the Uniform Fire Code (UFC) is an
extension
and part
of the enforcement
of the
Uniform Building Code (UBC)
and does not require a
firefighter trained
in the performance
of
emergency fire suppression
or other emergency
duties
to perform the code enforcement duties. The
employer and the
union agree that
fire code
enforcement work may be performed outside of the
bargaining
unit at the direction of the employer.
The
no
counterproposal.
II. EMPLOYER CONTENTIONS.
First, this issue in not whether the City should employ
a fire
work should be performed by the City's building inspection
department,
which is responsible for enforcement of the UBC,
or
by fire personnel.
Second,
the evidence is that
fire code enforcement
duties do not require the skills of a firefighter, but can
be performed by
the building inspector.
In fact, the
building inspector had no
difficulty enforcing the fire
code along with the building code during the 2 years that
those duties were in his office prior to June, 1989 There
is no need for duplicate inspection
work to be performed by
a firefighter. Further, such duplication is very costly
Furthermore, the
building inspector cannot
perform UBC
duties
without training in the UFC.
Third,
continuity of inspections
is often interrupted
because
fire personnel work, at best, 1 24-hour shift out of
every 3. Those shifts also interrupt fire
code enforcement
training programs,
and will also result in overtime pay to
lieutenants
who attend training programs on their
days off.
Also, there simply is not
sufficient time available for the
adequate training of
employees in the understanding and
interpretation
of the UFC. See Employer Exhibits 38 - 49.
Fourth,
Union costs have not addressed the
issue at
hand. Those costs were aimed primarily at forcing the City
to
fill the vacant fire
Fifth, the transfer of fire code enforcement work would
not
cost any bargaining unit members their jobs. In fact, it
would
free up time for physical fitness activity.
III. UNION CONTENTIONS.
Preliminarily, as
a matter of
factual background,
during the 1970's
and 1980's fire code
enforcement was
performed by a bargaining unit member, the fire
Thus a long history and past
practice existed whereunder the
disputed work was bargaining unit work. In 1984, the City
promoted the person holding the
fire
position of
assistant fire
chief and unilaterally
transferred the disputed work to that
position. The
grieved the matter and its position was upheld
on May 21,
1987, when an arbitrator
ordered the City to cease assigning
the work to non-bargaining unit personnel.
The City refused
to honor the arbitration award, and the
to seek court enforcement, which it obtained and which was
affirmed on appeal by the
Still, the City made no attempt to comply
with the award
until several months
after its petition for
review was
rejected in June, 1989. Since then, however, the City has
assigned
the disputed work to lieutenants and captains.
Turning
to argument, the
City has failed
to come
forward with the "strong
evidence' required to justify the
changing of a long established past
practice. See Elkouri &
Elkouri, How
arbitration Works, BNA 4th Ed.,
1985, pp 817
and
843.
First
of all, bargaining unit
members have sufficient
available time to perform the
disputed work, particularly
since the arbitration panel's earlier award allowed for 2
additional hours per day for the performance of that work.
Further, Union Exhibit No. 27, examples of
monthly activity
reports, show that those duties have been performed easily
within
the time that is available
Second,
the evidence established
that bargaining unit
members have been performing the disputed work without any
apparent
deficiencies in their training. The City's fears in
that regard are
just that: fears
with no evidentiary
support.
Third, the public is better served by having bargaining
unit
members perform the disputed work. The UFC and Employer
Exhibit No. 90 (NFPA Standard No. 1031)
make it clear that,
at the very least, fire code enforcement should be done by
someone who
has firefighting training,
knowledge and
experience.
Fourth,
firefighters have a special interest in seeing
to it that the disputed work is performed correctly. It is
their
lives that are on the line.
Finally, the City produced no evidence that it
is more
costly to have bargaining unit members
perform the disputed
work. Even assuming, for the sake
of argument, that it
would be slightly more costly, that
factor is outweighed by
the
public interest factor.
IV. ARBITRATOR'S AWARD
The
Arbitrator awards that
the City's proposal shall
not
be incorporated into the new agreement.
Preliminarily, the Arbitrator adopts
the
factual background,
summarized above in the first paragraph
of the
existence of
a long standing
custom and practice. The
unilateral change
in that practice
and the ensuing
interruption cannot be considered a break in that practice
because
the
to the bargaining unit was
ultimately sustained through the
final action of the
standing custom and practice through interest arbitration
must be supported by
strong evidence from the City. How
Arbitration Works, supra, p.
817. In the
opinion of the
Arbitrator, the City has failed to come forward with such
strong
evidence.
First
of all, while the parties' witnesses disagreed
dramatically on whether
the disputed work
required the
services of trained
firefighter personnel, and
also on
whether
it would best serve the public interest to keep that
work in the bargaining
unit, the only
neutral evidence
supported the
argues,
both the UFC and NFPA Standard No. 1031 indicate the
desirability of having
the disputed work
performed by
individuals who have firefighting training, knowledge and
experience. The Arbitrator finds that evidence to be very
persuasive.
Second , the City 's primary argument at hearing --
that
there is insufficient time available
for training -- is not
supported by
the evidence. As the
additional 2 hours per day
carved out by the arbitration
panel
clearly creates the need time for training.
Third,
there is no persuasive
evidence that it is
excessively
costly for the City to provide the disputed work
through
the fire department rather than through the building
inspection department. Such purported costs, if
they do
exist, have not been
presented in a manner that is
either
understandable or convincing
Similarly, there simply is
insufficient evidence to
support the City's
redundancy
argument.
Fourth,
There is some
logic to the
argument that
firefighters have a special
interest in seeing that the
disputed work is performed correctly. While this factor,
standing alone, would
not be sufficient to
sustain the
Union's position,
it is entitled to some weight. Further,
this factor tends to help
outweigh the City's redundancy
argument.
For
all the above reasons,
the
adopted
Dated this 5th day of July, 1991,
Thomas F Levak,
Neutral Arbitrator,