By Anthony Rice
In CSC Applied Technologies, the arbitrator sustained the grievance finding that Management overlooked mitigating factors when it terminated an assistant fire chief from service on the grounds that he failed to meet medical requirements.
Management originally hired Gary Knight on as a firefighter at the Vance Air Force Base Fire Department. At the time of the Knight’s removal and placement on medical leave, he was employed as an Assistant Chief of Operations. His removal came as a result of the annually mandated physical examination, in which he failed the pulmonary function test. Management contends that Knight’s test results disqualified him from serving in any capacity. The Union grieved.
Section 6.2 of the National Fire Protection Association (NFPA) states “that all members or candidates possessing Category A conditions shall not be considered compliant with the medical requirements of the NFPA.” Under the NFPA, an FVC or FEV1 test result of less than 70% is considered a Category A condition. The Grievant registered a 64% on the FVC test and a 65% on the FEV1 test. The Arbitrator agreed that both these results were below the NFPA’s minimum requirements.
However, in reinstating, the arbitrator found that Management neglected to consider mitigating factors.
[T]he irrefutable testimony offered during the hearing by current Assistant Chief of Operations Greg Knight heavily supports one of Union’s focal positions; that the Grievant’s removal from service was disparate in nature. Notably, Mr. Knight stated that during his April 9, 2012 physical evaluation, he registered a 0.79 FEV1 test result. . . Mr. Knight should have been diagnosed as possessing a Category A medical condition, which according to the NFPA, should have disqualified him from service. . .
In addition to the fact that Mr. Knight was allowed to retain his position while the Grievant was removed from service, the Grievant’s pulmonary function test results from his 2011 annual physical examination registered below the accepted minimal standard set forth in section 6.1.8(5)(6) of the NFPA. . . However, Management was silent and allowed the Grievant to remain on active duty.
What weighed most on the arbitrator that, despite the claim that meeting test standards was an essential requirement of the job, as Assistant Chief of Operations, the Knight rarely suppressed fires:
The most important mitigating factor that your arbitrator must take into consideration surrounds the question of whether the listed job requirements of the Grievant’s position, Assistant Chief of Operations, should omit him from the mandated standards set forth in the NFPA. Clearly, section 5.1.1 of the NFPA depicts the required job tasks that all members and candidates must be capable of satisfying. To be sure, the requests set forth are difficult in nature to perform, especially for an individual such as the Grievant who possesses pulmonary limitations. However, be that as it may, the parties’ proof reflects that the Grievant’s described job requirements do not require the Grievant to perform regular duties associated with fighting fires. Moreover, section A.1.1.1 of the NFPA states,
Particular attention must be paid to the essential job tasks of individual candidates or members when applying this standard (for example, administrative staff personnel, some ems personnel, fire/police, and others who do not have responsibility for structural firefighting and are not required to use SCBA)…. (emphasis added)
As a result, he concluded the Fire Department erred when it held the Assistant Chief of Operations to the pulmonary testing standard that properly applied to firefighters.
