Michigan Employment Relations Commission

Transcription

1 Michigan Employment Relations Commission Charter Township of Meridian, Respondent-Public Employer, and Firefighters Association of Michigan, Charging Party-Labor Organization Docket No. C95 H MPER (LRP) Lexis 38 March 28, 1996, Decided Decision and Order On February 27, 1996, Administrative Law Judge Roy L. Roulhac issued his Decision and Recommended Order in the above-entitled matter, finding that Respondent has engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist and take certain affirmative action as set forth in the attached Decision and Recommended Order of the Administrative Law Judge. The Decision and Recommended Order of the Administrative Law Judge was served on the interested parties in accord with Section 16 of Act 336 of the Public Acts of 1947, as amended. The parties have had an opportunity to review this Decision and Recommended Order for a period of at least 20 days from the date the decision was served on the parties, and no exceptions have been filed by any of the parties to this proceeding. Order Pursuant to Section 16 of the Act, the Commission adopts as its order the order recommended by the Administrative Law Judge. Decision and Recommended Order of Administrative Law Judge Pursuant to the provisions of Sections 10 and 16 of the Public Employment Relations Act (PERA), 1947 PA 336, as amended, MCL , MSA , this case was heard in Lansing, Michigan on December 5, 1995 by Administrative Law Judge Roy L. Roulhac. Based on the record, including post-hearing briefs filed by February 15, 1996, the following conclusions of law and recommended decision and order are made order pursuant to Section 16(b) of PERA:

2 2 The Unfair Labor Practice Charge The Union asserted in its August 31, 1995, unfair labor practice charge that Respondent violated sections 10(1)(a)(b)(c) and (e) of PERA by unilaterally requiring firefighters to undergo training and evaluation of firefighting skills. Findings of Facts The Township of Meridian and the Firefighters Association of Michigan are parties to an agreement. Article XXXII provides for physical fitness testing as follows: 32.1: Each employee shall, as scheduled by the Township during the months of August, September or October...participate in a physical fitness test as outlined below, unless excused from participation by a physician's certification. Employees who successfully complete the PT test...shall receive a $100 incentive bonus payment at the next pay period following completion of the test. Those employees who fail to successfully complete the test or who are excused from participation will receive no incentive bonus : Personnel on duty shall participate without loss of pay, personnel off duty shall not receive additional compensation. 32.4: The physical fitness test shall consist of three (3) events; pushups with a two (2) minute time limit, situps with a two (2) minute time limit, and a two (2) mile run... On July 31, 1995, after hearing rumors that the Employer planned to implement a physical ability/evaluation test other than the one set forth above, Union president Montgomery Nye met with Deputy Director Johnson and advised him that the proposed test violated Article XXXII of the collective bargaining agreement. He made verbal and written requests that the parties enter into negotiations to discuss the planned test. According to Nye, the Union viewed the agility test favorably and looked forward to working with the Employer in their implementation. However, they wished to express their concerns regarding the ramifications of not passing the test, injuries which may result, whether members were medically fit to take the test, and whether training would be provided before the test was administered. A bargaining session scheduled for August 7 was cancelled by the Employer. The next day the Employer issued a memorandum directing all firefighters to complete an agility test by the end of August. The test required firefighters to don turnout gear and perform eight assigned tasks, such as dragging a hose, climbing a ladder, and

3 3 negotiating an obstacle course, in a prescribed time period. Prior to and after the test, employees were required to have their blood pressures and pulses taken and recorded. On the first day the agility test was administered, the Union selected one of its most physically fit members to take the test and make recommendations, some of which were adopted. Nye, however, refused to take the test and on August 21 was issued an order directing his participation in a training evaluation intended to measure individual physical ability as it related to basic firefighter skills. On August 24, Nye was given a memorandum regarding his refusal to participate in the training and was advised that in the future, he would be expected to participate without being ordered to do so.1 One firefighter was unable to complete the test in the allotted time and on September 7, was given a memorandum which indicated that: Considering that the training is based on legitimate firefighter tasks and was developed to measure individual physical capabilities as they relate to our job, it is reasonable to expect that every member of the Fire Department would be able to meet this objective. This is a safety issue that relates to your safety, fellow firefighters' safety that rely on you and all of the safety of the citizens of the Township. Conclusions of Law The Union argues that the Employer has committed an unfair labor practice by unilaterally changing conditions of employment regarding physical ability/agility evaluations without providing an opportunity to bargain. According to the Employer, the charge should be dismissed because the Union is asking the Commission to interpret the parties' labor contract to determine whether an unfair labor practice has occurred; the issue of training firefighters has been discussed several times at the contract negotiation table; the Employer maintains the right to conduct physical training of its firefighters; and the Union has failed to show that the Employer violated PERA in any way. I find no merit to the Employer's arguments. It is well-settled that an employer has an obligation to bargain in good faith over mandatory subjects of bargaining. DPOA v. Detroit, 391 Mich 44 (1974). A mandatory subject of bargaining must have a material or significant impact on wages, hours or other conditions of employment. In City of Grand Rapids, 1994 MERC Lab Op 1159; although the Commission found voluntary physical examinations were not mandatory bargaining subjects, it made clear that a requirement that employees undergo physical examinations as a condition of employment were. See LeRoy Machine Co., 147 NLRB 1431, 56 LRRM 1369 (1964), where the Board concluded that a requirement that employees undergo physical examinations as a condition of continued employment was a mandatory subject of bargaining. See also County of Allegan Sheriff Dept, 1992 MERC Lab Op 134 where the Commission found psychological counseling to be a mandatory bargaining subject.

4 4 In this case, I find that the Employer committed an unfair labor practice by implementing, without bargaining, a mandatory agility test. The agility test has a significant impact on conditions of employment not only because it is mandatory, but employees who refuse to take the test or who fail to complete the test in the allotted time are subject to disciplinary action. It is unnecessary, as argued by the Employer, to interpret the parties' contract in order to find an unfair labor practice since there is no mention of an agility test in the contract. The contract only requires employees to perform situps, pushups, and complete a two mile run. Contrary to the Employer's assertion, the grievance filed by the Union does not challenge its right to train its firefighters. Rather, it seeks the removal from Nye's personnel file of the August 24 memorandum directing him to participate in training. Moreover, there is no reference in the contract, as the Employer claims, to its right to physically train its firefighters. Even if it did contain such a reference, the agility test which the Employer unilaterally implemented on August 8, is not training but are exercises designed to measure individual physical ability. Finally, even if the parties had discussed firefighter training during negotiations as alleged, there is no evidence on the record that the parties discussed or agreed to implement the agility test at issue here. In fact, the Employer, without notice or an opportunity to bargain, ordered employees to take test the day after a scheduled meeting to discuss the test was canceled. Based on the above findings of fact and conclusions of law, I recommend that the Commission find that the Charter Township of Meridian violated PERA by unilaterally implementing a physical fitness agility test without providing the Union notice and an opportunity to bargain. Recommended Order It is recommended that the Commission enter an order requiring the Charter Township of Meridian, its officers, agents, and representatives to: 1. Cease and desist from implementing a physical fitness agility test without notice and an opportunity to bargain; 2. If requested by the Firefighters Association of Michigan, rescind policies and practices unilaterally implemented or instituted since August 8, 1995, concerning physical agility tests, and; 3. Post, for thirty days, the attached notice in places where notices are generally posted. Notes: 1. On September 19, 1995, Nye filed a grievance protesting the placement of a memorandum in his file regarding his refusal to take the agility test. He suggested that the grievance be resolved as follows: Due to the fact that negotiations had been requested and that by implementing the testing without prior notice or

5 posting also violated Article II paragraph 2 of the terms and conditions of our contract, the MPFA request that any and all reference to the Memorandum dated , Training Evaluation be removed from any and all files. 5