By Mitchel Wilson
In Orange County, Florida, 131 LA 1367 (Smith 2013) Arbitrator Harold Smith concluded that the decision to transfer a firefighter was not a disciplinary decision and therefore was permissible according to the provisions of the CBA even though an employee conflict prompted the transfer.
The conflict began when the Grievant witnessed the other firefighter approach a burning house without his protective equipment on. Grievant commented on the coworker’s failure to wear complete protective gear near a burning building for the second time. Later during the same fire, when Grievant commended the coworker for wearing full gear, the coworker told Grievant he was off at 7:30, “I’ll meet you anywhere, and we can handle this like men.”
Back at the station, Grievant reported the incident and the Assistant Fire Chief (AFC) threatened to transfer both firefighters out of the unit if they could not work together. It was the AFC’s opinion that the Grievant acted inappropriately in handling the situation. When asked if the two could work together, the other firefighter said he could, but the Grievant refused because he viewed the other firefighter as a safety threat; the AFC transferred them both.
The CBA says all transfers may not be used as a form of discipline but they can be used for other purposes:
Transfers, permanent, temporary and floating, shall not be used as a means of discipline. Management shall, however, have the right to transfer in cases of harassment or EEO investigations, personnel conflicts, or other remedial measures. In these cases, every attempt should be made to place the displaced personnel to a station with an opening. The least senior qualified personnel on the shift and rank affected shall fill the displaced position.
In the instant case, the language is crystal clear, “Management shall, … have the right to transfer in cases of … personnel conflicts …” There is no dispute that there existed a personnel conflict involving [Grievant] and [Coworker].
The strongest argument for the Grievant, and his assertion that the transfer was disciplinary, was that his pay was reduced by 50 cents because of the transfer. However, the arbitrator could not overlook the clear language of the contract. He concluded that the employer transferred the Grievant to resolve the dispute between the firefighters as allowed by article 11. He further concluded that an oral warning to the firefighter was the disciplinary act, which is not subject to arbitration, because the firefighter would retain his position had he been able to resolve his coworker conflict.
