By Jennifer Gomori, MAFF Editor

MAFF filed two successful grievances on behalf of a Van Buren Township Paid-On-Call (POC) Firefighter who was suspended twice. The first suspension was reversed and the other significantly reduced with back pay and benefits awarded.

SUSPENSION REVERSED

In the first case, MAFF fought a 3-day suspension as excessive discipline and won. The Firefighter was suspended Aug. 17, 2017 for failing to notify the Employer in a timely manner that he would not attend a June 2017 training session. The Union filed a grievance stating the discipline violated Article II of the Management Rights policy by being “excessive.” The Arbitrator agreed, partially granting the grievance and reducing the discipline to a written write-up.

Township POC Firefighters received an email from the Employer asking them to sign up for one of three training sessions. The Firefighter in question forgot and failed to respond by the last training session on June 24, 2017. Once it was brought to his attention, he responded July 19 he was unable to attend due to “working and prior family obligations.”

The disciplinary 3-day suspension memo stated the Firefighter was previously disciplined with a counseling memo due to “no call, no show” for training in February 2017. This was his “first offense.”

The Firefighter testified he was scheduled to work at his regular job on two of the three June training dates and on the third day, he needed to take his daughter to an appointment. After receiving the “no call/no show” warning, he said he believed it was better to wait until the day of the training to sign up, but later forgot.

It is undisputed the training sessions were not mandatory. However, the Fire Chief testified the request to respond to training dates “is considered an order.” The Chief testified the Firefighter received a written warning for continuing to park in a spot where he had been told not to park and a one-day suspension in Feb. 2017 for failing to take his gear to a scene. The Chief said the current matter was a Level 1 third offense, with a penalty of up to one-month suspension.

The Union argued the Employee inadvertently missed responding, several firefighters failed to respond and this Firefighter is the only one who was disciplined. “I do not think the failure to respond to the training notice should be treated as insubordination,” the Arbitrator ruled. “The Training policy recognizes that the Paid-on-Call firefighters have complicated schedules. The policy itself is not worded as a clear order. It states that they ‘may be directed to announce’ their ‘Intent to attend.’”

She stated the policy is not mandatory, there was no response deadline, and the Employer provided no evidence of follow-up with the Firefighter when he failed to respond by the beginning of June. “Insubordination generally means a deliberate refusal in the face of a clear order. That did not happen here,” the Arbitrator stated, ruling it a second offense. “According to the Policy itself, the appropriate level of discipline for a second offense would be a Written Write-Up. It is my conclusion that the 3-day suspension was excessive discipline under the principles of just cause. I would encourage both parties to adopt a more cooperative approach, perhaps including reminder emails to those who have not responded to the initial training notice.”

60-DAY SUSPENSION CHARGES UNSUBSTANTIATED

In the second case, the Employer imposed a 60-day suspension Sept. 28, 2017 for improper conduct during an Aug. 3, 2017 fire response. MAFF filed a grievance Sept. 29, 2017 and the Arbitrator ruled in favor of reducing the suspension to 3-days, ordering back pay and benefits.

The veteran Firefighter had authority to assume command since no command officer was present when two dispatch calls came in regarding a freeway accident involving four cars, one of which rolled over. It was unclear whether there were two incident locations or one, so he ordered the other two firefighters to respond to the known location in a fire engine. He said he would follow in Squad 1, then made a landline call to dispatch for clarification. The fire engine arrived at 9:20 a.m. and Squad 1 arrived at 9:23 a.m., about 2-1/2 minutes later.

Huron Valley Ambulance handled all patient care and the fire department handled traffic control. All hazards were removed, and the scene was cleared. The Fire Chief said she was advised of a possible response irregularity and authorized an investigation. The report alleges the Firefighter violated several policies.

MAFF’s position was there was no just cause, it was not a fair and objective investigation, and the Employer’s allegation of a 9-minute response delay is false. The Employer argued the discipline was based on discipline history, untimely response to the scene, and failure to respond to an email asking for the Firefighter’s statement. The Firefighter said he couldn’t respond to the Aug. 15 email by the deadline imposed since he was suspended during his next shift Aug. 17 and did not have access to work email.

In an August 2018 hearing, the Arbitrator found the Township failed to prove any of their claims except for the untimely individual response and granted the grievance in part. “I agree that the penalty is excessive; is not based upon a proper investigation of all the facts and is disparate to what might be appropriate for one offense on the discipline matrix,” the Arbitrator ruled. “I simply find that the Township over charged based upon the unique facts of Aug. 3 and did not give Grievant one element of due process, namely a determination after the investigation exactly what rules were violated and thus upon which the 60-day suspension might be based; and thus the penalty is unreasonable, without just cause as required by the contract.”

The Arbitrator ruled the Firefighter in violation of turnout time of 2 minutes or less and reduced the 60-day suspension to a 3-day suspension. He ruled the Firefighter was entitled to back pay equal to the difference between 60 and 3 days suspensions and any contractual benefits he would have accrued.