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Title: Spokane International Airport Board and Local 1789
Date: 1996
Arbitrator: Sandra Gangle
Citation: 1996 NAC 108

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

In the Matter of the Arbitration                                      )

between                                                                        )

LOCAL 1789, IAFF (AFL-CIO)                                 )

                                                Union,                           )

                        and                                                        ) DECISION AND AWARD

SPOKANE INTERNATIONAL AIRPORT BOARD, )

                                                Employer.                      )

_________________________________________   )

Hearings Conducted:                                        April 19, 1996

Representing the Union:                                    Barry E. Ryan, P.S.
                                                                        Attorney at Law
                                                                        E. 1017 Mission
                                                                        Spokane, WA  99202

Representing the Employer:                               Jerry R. Neal
                                                                        Attorney at Law
                                                                        Preston, Gates & Ellis 
                                                                        5000 Columbia Center
                                                                        Seattle, WA  98104-7078

Arbitrator:                                                        Sandra Smith Gangle
                                                                       
Depenbrock & Gangle, P.C.
                                                                       
831 Lancaster Dr. NE, #209
                                                                        Salem, OR  97301

BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement between the parties effective between January 1, 1995 and December 31, 1997.  Jt. Ex. No. 1 (Employer Ex. No. 7 and Union Ex. D).

            A grievance was filed in this matter on September 14, 1995.  See Union Exhibit A.   It is a union grievance, not an individual grievance.  The parties, having been unable to resolve the matter during the grievance procedure, mutually selected Sandra Smith Gangle, Attorney at Law, 831 Lancaster Dr. NE, Suite 209, Salem, Oregon 97301, through selection procedures of the Washington Public Employment Relations Commission, as the labor arbitrator who would conduct a hearing and render a decision in the matter. 

            A hearing was conducted on April 18, 1996 at the Board Conference Room of the Spokane International Airport in Spokane, Washington.  The parties were thoroughly and competently represented by their respective attorneys throughout the hearing.  The employer was represented by Jerry Neal, Attorney at Law, of the Seattle law firm of Preston, Gates & Ellis.  The union was represented by Barry E. Ryan, Attorney at Law, of Spokane, assisted by Kambra Mellergaard.

            There were no objections to procedural or substantive arbitrability of the matter.  The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.   All witnesses who appeared at the hearing were sworn and were subject to cross-examination by the opposing party.

            The arbitrator tape-recorded the testimony of all witnesses as an adjunct to her personal notes.  It was agreed and understood that the arbitrator's tapes were not an official record of the hearing.  They are the arbitrator's private property  and are not subject to subpoena by any party or organization.

            Written briefs were submitted by both parties to the arbitrator at the start of the hearing.  The parties agreed that those briefs would constitute the closing argument and that no further briefing would be necessary following the hearing.  The arbitrator closed the hearing on April 18, 1996, at 2:30 p.m., subject only to receipt of Employer Exhibits 20 through 24, which needed to be copied and mailed.  Those exhibits were received on April 22, 1996.

            The arbitrator has considered all the testimony and evidence offered by the parties at the hearing.  She has weighed the evidence carefully in considering the arguments of the parties.

STATEMENT OF THE ISSUE

            The parties did not agree on a statement of the issue to be resolved by the arbitrator.  They stipulated, however, that the arbitrator would have the authority to frame the issue.  The union had framed the issue as follows:

            Have bargaining unit members been assigned to non-bargaining unit work that has neither been negotiated, agreed upon nor compensated?

The employer had framed the issue in this way:

            Do the duties which have been assigned fall within the contract provisions and the (firefighters') job description?

Having reviewed the record and briefs of the parties, the arbitrator frames the issue as follows:

            Did the employer violate the parties' collective bargaining agreement when it assigned union members to perform certain ramp security checks on or about August 10, 1995 without pursuing prior negotiation with the union? 

            If so, what is the remedy?

RELEVANT CONTRACTUAL PROVISIONS

                I.              RECOGNITION

                                The Employer recognizes the Union as the exclusive bargaining agent for the Employees of the Spokane International Airport Fire Department, except for the Fire Chief and the Captains of the Department. . . .

                XX.         EMPLOYEE/UNION GRIEVANCE PROCEDURE

                                Step 5:

                                                                          * * * * *

                                The arbitrator shall render its decision based on the interpretation and application of this Agreement.  Said arbitration . . . shall be final and binding upon the parties to the grievance.

                                                                          * * * * *

                                Neither the arbitrator nor any other person or persons involved in the grievance procedure shall have the power to negotiate new agreements or to change any of the terms and conditions of this Agreement. . . .

                XXI.        MANAGEMENT RIGHTS

                                Any and all rights concerned with the efficient management and operation of the Department are exclusively that of the Airport Fire Department Administration, unless otherwise provided through the terms of this Agreement. . . . Management has the right to assign work if it does not interfere with the fire service, and to determine the number of personnel to be assigned at any one time and to perform all of the functions not otherwise expressly limited by this Agreement.

                XXII. TRAINING AND SAFETY

                                All Fire Department activities and operations shall be in compliance with OSHA and WISHA safety rules and regulations and any other applicable law. . . .

                XXVIII.  CONFORMITY TO LAW

                                This Agreement and the interpretation of same shall be in accordance with all applicable State and Federal laws, including but not limited to the provisions of RCW 41.56 (Public Employees Collective Bargaining).

                                Employer decisions affecting personnel matters, including wages, hours and working conditions which may be peculiar to the EMPLOYEES covered by this Agreement shall be subject to the grievance procedure as set forth herein and to the provisions of RCW 41.56 (Public Employees' Collective Bargaining).

STATEMENT OF THE FACTS

            The facts of this matter, as proven at the hearing, are as follows:

            1.         The parties have negotiated successive collective bargaining agreements since 1970.  See Exhibits 20, 21, 22, 23, 24, 1, 3, 4, 5, and 7.

            2.         The airport has grown in size and in general staffing needs between 1970 and the present.  In the early years there was one man who provided general security for the airport.   The Air National Guard provided firefighting and rescue services, in a joint venture between the Guard and the airport.  That arrangement continued until 1975,  according to Gary Rennick, who was on the firefighting staff during those years.   A separate airport fire department was established in 1975 and a new fire service building was constructed in 1979.   The Fire Chief between 1968 and 1994 was Peter Fairchild.

            3.         Between 1970 and 1975, firefighters were asked to do ramp patrols and runway checks during periods of peak operations at the airport.  They were asked to "keep their eyes and ears open" for anything unusual that might happen.  There were no fences at that time and vehicles or pedestrians would occasionally wander onto the runways.  Also, airplane deceleration speed needed to be monitored.  

            4.         Sometime during the 1970's, a separate security department was established and a police chief was hired.  Fences were built to protect the runways.  Operations staff took over the ramp patrols.  The Fire Department grew and acquired new updated equipment for fire and rescue services.

            5.         There was a brief period of time during the early 1970's, (described by retired Chief Fairchild at the hearing as "a couple of weeks") during which a security alert was imposed at the airport because of a threat from a rebel group known as the "Weathermen".  Firefighters were asked to do ramp patrols and watch for suspicious activity during that period of time.  If any problems were noted, firefighters were expected to call the Spokane County Sheriff. 

            6.         Between 1975 and 1980, there were occasional events at the airport, such as a "fun run" on an unused runway.  During such special events, firefighters helped to keep people in the properly designated areas and away from the active runways.

            7.         On or about August 27, 1984, a document entitled RULES, REGULATIONS AND RESPONSIBILITIES was adopted by the airport fire department.  A position description for airport firefighters who are members of the union was included in the document.  That description contains the following language:

                        RESPONSIBILITIES:

                        Under direct supervision, with limited opportunity to exercise independent judgement in emergency situations. Perform crash-rescue operations, combat aircraft and structural fires, and perform fire prevention, safety and security duties, and perform related duties as assigned.

                        General firefighter duties include prevention, combating and extinguishing all types of fires, including structural, but primarily aircraft fires, and incidents resulting from the storage or handling of gasoline or other aviation related fuels and lubricants.  Maintain and operate all types of crash-rescue equipment. . ., participate in emergency rescue of aircraft accident victims, and assist in housekeeping and maintenance of the fire station.  Inspects business establishments. . .inspects. . .fire extinguishers. . . participates in fire drills; attends training courses on firefighting. . . and maintains proficiency in each in accordance with Spokane International Airport Testing Standards.  May work in repair shop or alarm room and participate in activities related to airfield safety or be assigned to the Emergency Rescue Squad.

Employer Exhibit 2

            8.         The position description for Airport Firefighter has not changed since it was initially adopted.  The language was incorporated verbatim in a document adopted on April 17, 1986 as an addendum to the parties' 1986 collective bargaining agreement.  Employer Exhibit 3.  Then, in 1992, the position description was retyped verbatim, but in a different type-style.  Employer Exhibit 6.

            9.         The Airport is subject to federal regulations imposed by the Federal Aviation Administration (FAA).  When the FAA issues directives, the airport administration must comply.  Otherwise the airport can be shut down.

            10.       During the Desert Storm conflict in 1991, a security alert was put in place at the airport.  By federal mandate, only ticketed passengers were allowed to enter the ramps and gate areas.  Firefighters were asked to assist in carrying out the special rules.  The union agreed, on a temporary basis.  Teams of two firefighters each were assigned to check for passenger tickets at each security gate.  They had medical bags with them in case an emergency might occur.  The special assignment ended after two or three weeks.  Then the airlines retained additional security staff to provide the gate security function during the remainder of the Desert Storm conflict.        

            11.       Gary Rennick became Fire Chief in 1994.  He was still Chief in August of 1995, when the facts giving rise to the instant grievance arose.  He subsequently resigned as Chief and became a Captain in the Department.   Pete Troyer, the Police Chief at the airport, took on the responsibilities of Interim Fire Chief while a search was undertaken for a new Chief.

            12.       On or about August 4, 1995, the FAA issued a directive requiring that security measures be modified at all airports nationwide.  Certain security threats had been identified, including potential terrorist activities.  Among the required security measures that needed to be implemented immediately were the following:

                        1. A.  Modified A200:  Deploy additional or increase existing patrols by uniformed security or law enforcement officers at airports to provide surveillance, act as a deterrent, and respond as necessary to security related incidents. . . .

                         2. The FAA shall advise the airport operator when an AVSEC Alert Level III exists.  The airport operator shall apply the following:

                                    B. A402:  Increase random ID checks in the secured area by security personnel, airport operations, or LEO's.

Employer Exhibit 9

            13.       Airport administrators met on August 9, 1995 to discuss implementation of the federal directives.  Following the meeting, Chief Rennick issued an instruction to firefighters in the bargaining unit that one they should henceforth go out to the ramp area (a restricted-access area) six times each day and drive through the area.  On each random drive-through, the firefighter making the trip was to make sure that all persons in the area at the time were wearing official airport identification badges on chains or armbands.  Records of the random checks were to be kept by the firefighters.

            14.       Following the issuance of the random-check order, the union filed the instant grievance.  Because Chief Rennick resigned as Chief soon after that, Interim Fire Chief Troyer attempted to resolve the grievance with the union.  Troyer was unsuccessful in that effort, however, and the matter has been submitted to the arbitrator for resolution.

            15.       Management initially anticipated that the FAA directive which had generated the ramp patrol order was only going to be temporary.  They believed the assignment would end sometime in October of 1995.  The assignment has been extended indefinitely, however, and, at the time of the arbitration hearing, still remained in effect.

POSITIONS OF THE PARTIES

            A.        The Union:        The union contends the Employer violated the parties' collective bargaining agreement when it assigned firefighters to perform the ramp security checks in addition to their regularly assigned duties. The union asserts that the requirement to check for properly displayed ID badges six times per day falls outside the scope of the firefighters' position description and is more appropriately a function of uniformed law enforcement personnel.  The employer had a duty to bargain with the union before assigning such duties, or at least over the effect that the assignment would have on the firefighters' working conditions. 

            The union points out that firefighters have not had training in making arrests, using weapons or protecting arrestees' civil rights.  They are not equipped with protective clothing or gear, which they might need if confronted by a dangerous person during a ramp check.

            Since management failed to bargain with the union before implementing the order, the grievance should be granted, says the union.

            B. The Employer:                      Management denies that the collective bargaining agreement has been violated.  The contract allows the employer to adopt rules and regulations.  The firefighters' position description was adopted pursuant to that authority and the word "security" is found in the position description.  

            Also, the parties' collective bargaining agreement contains a management rights clause.  That provision authorizes the assignment of duties such as the ramp patrol order, argues the employer, as long as there is no interference with the fire service.   

            As assigned, the six random checks per day can be accomplished at times selected by the firefighters themselves.  The assignment can be coordinated with other activities, including the daily fueling check that firefighters make in the ramp area.  Firefighters have discretion to spend thirty minutes or three hours on the ramp patrol assignment.  There is no specific time requirement.  Also, the firefighter can quickly leave the ramp area to join his crew in the event of a fire call while he is out on ramp patrol.  Therefore, there would be no interference with the fire service.

            The employer denies that the ramp security checks as assigned involve any additional risk of harm to firefighters.   They only are asked to drive through the ramp area in a fire department vehicle and observe whether persons in the area are wearing their official ID badges.  They would use their radio to report suspected violators.  They would not be expected to confront or detain any dangerous persons.  The obligation is  no different than the general obligation, that all airport personnel share, to report persons who are observed without badges in protected areas.  

            Finally, the employer contends that there is contractual precedent for the ramp security assignments.  As far back as the Weathermen incident in the early 1970's, there have been situations where firefighters have been asked to provide security, specifically ramp patrols,  due to unusual conditions at the airport.   That history can be construed as a past practice.  Firefighters may not now require the employer to bargain over such an assignment, says management.

ANALYSIS AND DECISION

            This is a contract interpretation grievance.  The arbitrator's role is to determine whether the union proved that the employer violated the contract when it failed to bargain over the ramp check assignment. 

            The union contends the contract required the employer to bargain because the assignment constituted a change in firefighters' working conditions.  The union points out that Article XXIV Department Rules and Regulations requires mutual consent for changes to occur in working conditions.  Also, Article XXVIII Conformity to Law requires the parties to comply with RCW 41.56.140, the statutory basis for collective bargaining over employees' wages, hours and working conditions. 

            The union cites Firefighters Local 1052 v. PERC, 113 Wn. 2d 197, 778 P. 2d 32 (1989), a Washington Supreme Court case on scope of bargaining in the public sector, in support of its position.  In that case, the court determined that PERC should have balanced the public employer's need for managerial control against the employees' concern with working conditions when it considered whether a union proposal on equipment staffing levels had constituted a mandatory subject of bargaining.  The court acknowledged that equipment staffing levels might affect the workload and safety of firefighters, and that both workload and safety were conditions of employment and therefore mandatory subjects of bargaining.  The court remanded the case back to PERC to conduct the balancing analysis that was required under the circumstances.

            The union also cites City of Springfield, 97 LA 116 (Arb. O'Grady, 1991), an Illinois case involving firefighters, as authority for its position that the employer has a duty to bargain, even when an assignment affecting working conditions is expected to be temporary only.   In Springfield the arbitrator found that the employer had had a duty to bargain with the union when it assigned firefighters to assist during a one-day event called Hazardous Waste Collection Day,  because the work had constituted an exceptional use of firefighters' duty time.   Also, the extra service by the firefighters ultimately benefited a private contractor because the firefighters performed duties that the understaffed contractor had been hired to provide. 

            In Springfield, as in the instant case, the extra duty that was assigned to firefighters was limited in time and scope.  The firefighters were only asked to help out with the unloading and carrying of containers of hazardous waste for a period of a few hours, after it had become obvious that the subcontractor's crew was unable to keep up with the flow of people arriving at the collection site.   The arbitrator disagreed with the employer's argument that the extra duty was closely associated with firefighters'  ordinary duties and that there had not been any changed working conditions.  The arbitrator specifically noted that the firefighters had not been provided canister masks at the event, while the private contractor's employees did wear such masks.   He concluded that the employer should have shown more concern for the possible risks to firefighters from the special assignment and granted the grievance.

            The employer in the instant case denies that the assignment being grieved by the union constituted a change in working conditions that required bargaining.  The employer cites Lake Chelan School District No. 129, Decision 4940-A (PERC 1995) as authority for its position that the assignment was a matter of managerial prerogative.     In the Lake Chelan case, the disputed issue was the assignment of schoolteachers to monitor loading and unloading of students in school buses in the school parking lot.  The teachers had been required to perform the new duties for 15 to 30 minutes per day during a total of four or five weeks of each school year.  The assignment took effect during the teachers' regular school day;  however, teachers were unable to perform other tasks related to their teaching duties while they were serving bus-monitoring duties.

            The Washington PERC held that the assigned duty was not a mandatory subject of bargaining.   The duty to supervise students on school property fell within the normal tasks of teachers, said PERC.   Although there was some inconvenience to teachers as a result of the new assignment, the inconvenience was temporary and short-lived only.  Most significantly, the enterpreneurial interests of the employer in assuring the safety of students outweighed the personal inconvenience to teachers in performing the monitoring activities.   Therefore, the assignment was predominantly a management prerogative and did not require bargaining.

            The arbitrator has carefully reviewed the Lake Chelan decision.  The facts of that case are distinguishable from the facts of the instant case in an important respect.  The underlying reason for the presence of teachers in the parking lots had apparently been to protect students from wandering into the paths of other vehicles.   There was no suggestion in the case that dangerous persons might be lurking in the lots.   There was no indication in the decision that teachers had identified a risk of harm to themselves from non-students.  They did not argue that special training or protective gear or clothing would be needed to protect union members against potentially harmful conditions.

            These issues present themselves in the instant case, however.  The ramp checks were expressly assigned to firefighters because the FAA  had identified a potential threat from non-authorized persons in secured areas in airports.  The union argued that training was needed in order to educate their members in how to deal with such persons.  They  argued that protective gear and/or weapons might be needed to safeguard the firefighters from injury.   They argued that law enforcement personnel are trained and equipped to perform such duties, while firefighters are not.

            Chief Troyer, who testified for management, tended to minimize the potential risks of harm from performing the ramp checks.  While acknowledging that a firefighter on ramp patrol might find someone suspicious and that such a person might be carrying a weapon, he emphasized that the firefighter would not be expected to confront such an individual.  He said that a call to the police should immediately be made on the firefighter's radio if such a situation should occur.  He also pointed out that the FAA had authorized operations personnel, as well as security personnel, to perform the random  ID checks.   See Employer Exhibit 9.

            Management witnesses also offered evidence showing that all airport employees who wear official badges are already required to report unauthorized persons in secured areas.  A booklet explaining the notification requirement is provided to each such employee at the time a badge is issued to the employee.  See Employer Exhibit 16.   Firefighters are among the employees who have received the booklets.

            Nevertheless, on balance,  the arbitrator finds that the union has raised a justifiable concern.  The FAA directive which led to the order requiring random ramp checks in August of 1995 was issued because a heightened security alert had been identified nationwide.  Therefore, the risk of dangerous persons being in that secure area of the airport was more acute than it had been previously.  Also, firefighters were being required to look specifically for unauthorized persons in the ramp area, whereas they were only asked to observe incidentally whether badges were in use under the earlier badge-reporting obligation.

            It seems that some training in law enforcement techniques and strategies would be helpful to firefighters so that they would be better prepared to deal with dangerous persons in the ramp area.   Even though a phone call is all that management requires in the event a firefighter observes an unauthorized person, it is realistic to anticipate that a firefighter making such a call would be vulnerable to harm, if the unauthorized person had a weapon.  Since firefighters wear uniforms, they could be perceived as law enforcement officers and be at greater risk than someone without a uniform making a call from a vehicle radio.  

            The employer argues next that, insofar as the duties assigned constitute "security", they fall within the firefighters' position description and are not, as the union alleges, non-bargaining-unit work.   The employer points out that firefighters have done ramp patrols in the past.   Also, they  provided security during emergency situations at least twice,  first during the "Weathermen"  incident in the early 1970's and more recently during the Desert Storm crisis of 1991.   The employer implies that, even if there is a potentially harmful effect on firefighters' working conditions as a result of the 1995 ramp patrol assignment, the union has waived its right to bargain over the assignment and the grievance should be denied. 

            The arbitrator does not agree with the employer's analysis.  The union persuaded the arbitrator that the word "security" in the firefighters' position description refers to the obligation of securing scenes of fires and airplane crashes, not to the performance of duties that are properly assigned to police or uniformed security guards.  Although firefighters did perform ramp patrols in the early 1970's when the airport fire service was a joint venture with the Air National Guard, airport operations staff took on the responsibility in 1975.  From that time forward, the airport fire department was a separate entity whose duties were limited to fire and rescue services.  About the same time a security department was established to provide security services.

            The evidence does show that firefighters agreed to provide security services twice during Weathermen incident in the early 1970's and during the Desert Storm conflict in 1991.  In both of those situations, however, the union was consulted before the assignment was implemented.   Also, the union's involvement in each case was limited to about two weeks duration. 

            In the Desert Storm situation, firefighters agreed to serve in teams of two at a time, at entrances to the passenger loading gates.  They were instructed to permit only ticketed passengers through.  They had medical bags with them, so that the could provide medical care in case of emergencies.  It seems, from that fact, that their role was geared more toward helping injured persons than toward preventing suspicious or dangerous persons from entering secured areas.  What is most significant to the arbitrator,  however, is that the union had the opportunity to negotiate reasonable terms before its members commenced performing the gate patrol duties during Desert Storm.  The union was not allowed to negotiate such terms in the instant case.

            The assignment to firefighters to do ramp duty in August of 1995 appears at first blush to have been a de minimis violation of the parties' labor agreement.   The arbitrator is persuaded that the employer believed the order would be temporary only and that it would not interfere with ordinary fire service.   The employer did not issue the order in bad faith. 

            The union recognized, however, that the order had a potentially adverse effect on the working conditions of the firefighters and properly pursued its grievance.  As in City of Springfield, supra, the grievance was justified.   Even though the union did not demonstrate any measurable loss to any of its members as a result of the assignment, the grievance shall not be denied on de minimis grounds.  See, e.g. Hill and Sinicropi, Remedies in Arbitration (BNA, 1981) at 132-33.

AWARD

            For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the Employer violated the collective bargaining agreement of the parties when it assigned firefighters to perform random ramp patrols six times per day in August of 1995, continuing until the present.   The grievance is granted.

            The Employer shall immediately cease and desist from ordering firefighters to perform ramp patrols and shall post a notice advising all employees that the assignment was in violation of the parties' collective bargaining agreement.  Henceforth, the employer shall negotiate with the union prior to assigning such work to firefighters.

            Since there are no measurable damages to the union and there is no evidence that regular fire service was interfered with as a result of the ramp patrol assignment,  there will be no pecuniary award to the union.

            DATED this _______ day of ____________ , 1996.

                                                           ___________________________________

                                                             SANDRA SMITH GANGLE, Arbitrator

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