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Title: Spokane International Airport Board and Local
1789 BEFORE SANDRA SMITH GANGLE, ARBITRATOR In
the Matter of the Arbitration
) between
) LOCAL
1789, IAFF (AFL-CIO)
)
Union,
)
and
) SPOKANE
INTERNATIONAL AIRPORT BOARD, )
Employer.
) _________________________________________
) Hearings
Conducted:
April 19, 1996 Representing
the Union:
Barry E. Ryan, P.S. Representing
the Employer:
Jerry R. Neal Arbitrator:
Sandra Smith Gangle 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 EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
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