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Wauwatosa firefighters union sues city over bargaining

City wants to give managers more discretion

Jan. 29, 2014

The Wauwatosa firefighters union has filed suit against the city for unilaterally taking off the table what the union views as longstanding provisions in negotiating a new collective bargaining agreement.

The Wauwatosa Professional Firefighters' Association charges that the set of clauses removed by the city "touch directly upon subjects such as employee safety, work hours, employee core duties, selection criteria for promotions, and union access, all matters which primarily relate to employee wages, hours, and working conditions," according to the court filing.

In a November memorandum from the city to the union on the subject of the "evaporation" of certain subjects of bargaining, the city asserts that a number of work rules which had held in previous contracts will be deleted in any new bargaining agreement.

What's at stake

Firefighters work 24-hour shifts starting at 8 a.m. The city seeks, among other things, to remove a clause that says the "duty day shall terminate for the purposes of cleanup, training procedures, and other regular routines on or before 5:00 p.m." in most cases, with the balance of the 24-hour period spent in "stand-by waiting," except in matters of emergency or a public relations event.

The city would also remove a clause that limits work on legal holidays and Easter Sunday to morning cleanup, parade appearances, stand-by, in-house training, emergency calls, and occasional public relations demonstrations "provided that no member shall be required to serve more than 2 hours in such effort" unless those employees are paid time and a half. Firefighters normally work holidays at straight time.

After the union filed its lawsuit in Milwaukee County Circuit Court in early December, the city filed an action with the Wisconsin Employment Relations Commission, and has asked the court dismiss the suit and allow the WERC to decide. Both actions are still open.

Paring it down

Attorney Tim Hawks, who represents the union, said the original city memorandum sought 33 changes to last year's contract. The number has been whittled down by eliminating issues that are based on "archaic" practices, or because some of the clauses were "proposed by the employer to benefit the employer," and so can be removed by the city if it so chooses, Hawks said. A few others were deemed not worth fighting about.

Hawks said there remains a small core of connected issues related to the work day, such as those above.

"In the past, the firefighters union of Wauwatosa has demanded to bargain about whether or not the regularly recurring duties that are performed every day would be performed within an eight-hour span of time during the day.

"This was litigated all the way up to the Court of Appeals back in the '70s, and was demanded to be a mandatory subject of bargaining. So now we're asking the Milwaukee County Circuit Court ... to apply that judgment to this case."

Hawks said the period after 5 p.m., when there is not an emergency, is often used by firefighters to study for certifications or upcoming promotional exams.

Issues set aside

Some of the resolved or dropped issues in the city memorandum sought to forbid the union from storing union materials and holding union meetings at fire stations at no cost; to strike an item requiring the city to provide "turnout gear," typical protective clothing worn by firefighters, and other issues related to clothing; and to strike language that allows firefighters to smoke in a small designated area, said Capt. Gary Webb, a fire captain who is president of the union.

One of the remaining issues deals with qualifications and decision-making in the promotions process.

Three kinds of issues

Jim Macy, an attorney representing the city, explained that there are three kinds of issues in collective bargaining: mandatory, meaning they must be bargained; permissive, which means they may be bargained but don't have to be; and illegal issues, which of course are not bargainable.

"There were a number of issues in the fire contract in the course of bargaining that the city had raised, questioning whether they were mandatory, and believed in fact they were permissive, meaning it was OK (to bargain), but the city felt better that they be issues not in the bargaining agreement — more reserved for management," Macy said. "It doesn't mean they do business different, it just means it wouldn't be appropriate for a contract any more.

"It could either either go to the Wisconsin Employment Relations Commission, or it can go to Circuit Court to determine where the subjects fall in."

Macy agreed that promotion procedures and workday scheduling were still outstanding issues — whether or not they should be bargained or up to the sole discretion of management.

A change in relations

Webb said the tone of bargaining has changed.

"I've been with the department for 23 years, and we have never had anything like this in the past," Webb said.

Hawks concurred.

"In recent years, the relationship has become strained," he said.

A hearing on a motion to dismiss submitted by the city is scheduled for Feb. 28.

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