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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 01-15224

AFGE LOCAL NO. 2017,


Union,

and

US DEPARTMENT OF THE ARMY,


US ARMY SIGNAL CENTER and
FORT GORDON,
Agency.
______________________________________/

OPINION OF THE ARBITRATOR

January 18, 2002

After a Hearing Held December 10, 2001


At Fort Gordon, Georgia

For the Union: For the Agency:

Clarence E. Brown James R. Baugh


National Rep, AFGE 5th District Administrative Law Office
702 S Hill Street Office of Staff Judge Advocate
Timmonsville, SC 29161 Fort Gordon, GA 30905-5280
The Parties

The parties to this dispute are the US Department of the Army, US

Army Signal Center and Fort Gordon (“Agency”) and Local No. 2017 of the

American Federation of Government Employees, AFL-CIO (“Union”).

Relations between the parties are governed by the Labor—Management

Agreement effective August 15, 1985 (“LMA”), which was received into

evidence as JX 1.

The Question And The Answer

The question presented is whether two plus two equals four, when

staffing firefighting crews. The Union contends that Department of Defense

Instruction No. 6055.6 (October 10, 2000), Enclosure 5 unequivocally

requires that fire trucks be staffed by four (4) firefighters. The Agency

contends that staffing requirements may be met by dispatching two

firefighters on a fire truck and two more on an emergency vehicle. Because

the Agency’s interpretation conflicts with the plain language of the DOD

instruction, the Agency’s math does not compute.

Concerns About Understaffing Were Raised As Long Ago As 1994

Concerns about the understaffing of fire trucks at Fort Gordon,

Georgia, have been voiced intermittently for at least seven years. In a

memorandum dated January 24, 1994, George T. Wilder, Chief, Army Fire

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Protection Services, reported the following:

Undersigned responded to telephonic request from HQ TRADOC for


assistance in the investigation of a major fire at Fort Gordon which
caused in excess of $5M loss to real property and equipment … and
the accidental overturning of an 85' aerial ladder fire truck … . …

Manpower.

Overall staffing requirements 44, on hand 31. Army staffing standard


MS-3, mandated by DoDI6055.6 and AR420-90 applied 12 May 92
… . To operate below minimum requirements a waiver must be
approved by the Deputy Assistan[t] Secretary of the Army for
Installations and Housing … . No approved waiver on file.

Daily staffing of 14 firefighters are required to staff 4 positions on


each of the 3 required primary fire trucks, a shift supervisor, and a fire
alarm operator.

Manpower available day of the fire 12 … .

Comments.

Staffing the fire department below requirements is a routine practice


which is not compatible with established DA Policy and applicable
standards.

Firefighting tasks such as establishing water supplies, laying out hose


lines and advancing fire attack hose line were hampered and delayed
due to the shortfall of two firefighter positions.

Working below minimum requirements places additional burdens and


demands on responding personnel to take up the slack and advance
and apply fire streams on the fire, increasing the risk of injury.
Reduced manning also delays fire rescue attempts and places
firefighters, already in an unsafe work environment[,] more at risk to
the dangers of providing fire profession [sic], one of the most
hazardous in the world today.

Recommended the installation:

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Staff fire department in accordance with applicable DA Policy and
applicable standards of DoD. …

Submit necessary request for waiver if the Commander is willing to


assume the responsibility and liability associated with fire losses. Bear
in mind that reducing fire department staffing should not be
considered unless other measures to protect lives and property from
fire have been initiated, for example installing fire protection features
beyond what codes require. …

Operations. … Aerial ladder truck.

Aerial ladder truck turned over on its side due to driver/operator error
of not extending outrigger supports on the opposite from the driver
side of the truck. When the ladder was raised, extended, and rotated in
a clockwise direction the truck overturned due to the outriggers not
being in place. …

Estimated cost of repair $185K. … New one cost $230K. …

The aerial ladder truck was staffed with 2 firefighters the day of the
fire! 4 required. Understaffing was in my opinion a contributing
factor to the driver operator failing to extend all the outriggers. In
addition the driver operator had been transferred 7 months ago from
the fire prevention division due to manpower reductions in the
department. Witness statements regarding the overturned truck were
that repeated explosions were occurring at the fire scene immediately
preceding the truck overturning. Outriggers on the side of the truck
facing the fire were not extended in place.

Bottom line problems.

Manpower Army wide well below requirements. TRADOC is at


approximately 69% of requirements. … UX 1; emphasis supplied.

Thus, concerns about understaffing of fire trucks at Fort Gordon do not

appear to be new.

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The Instant Grievance

The instant grievance arose in April of 2001, as a result of the fire

department taking over emergency medical responsibilities previously held

by the Dwight David Eisenhower Army Medical Center (“EAMC” below) at

Fort Gordon. In a letter dated April 24, 2001, Kay Raney, Union president,

set forth the Union’s position:

In accordance with Article 35, Section 11 of the current Labor-


Management Agreement, the undersigned hereby submits this
grievance for review and consideration.
We feel that Article 17 of the Agreement has [been] and
continues to be violated, therefore this grievance is being filed.
Fire fighting has been recognized as the most dangerous
occupation in the United States in terms of occupational death and
injury. When management deviated from current staffing standard
(6055.6 page 7-1) and regulation (420-90 2-1 management of
resources subparagraph 1 and 5) to staff a first response basic life
support vehicle which has lost the ability to duplicate a service
provided by EAMC to respond and perform assigned duties and
details for which they are needed [sic].
It should be pointed out that this is a duplication of services
because the hospital (EAMC) already provided this service. …
As a result of[] subsequent monitoring of responses mad[e] by
the Union of the fire department, vehicle and personnel both medical
and fire protection relat[ed], the union became aware of safety hazards
with regards to initial response to both medical and fire emergencies.
To illustrate this; a response that occurred in May 2000, Mr.
McVay and Mr. Porter assigned to Rescue 2 responded to Bldg.
28430,[] person stung by bee. At mid-point during patient care, a
response for fire department services was needed at that time; at that
time the fire department was staffed to 11 personnel. By the time
EAMC Service were in control of Med Scene, the fire services were
without assigned persons for over 12 minutes.
The issue of the fire department staffing and vehicle staffing at
Fort Gordon fire department has been addressed in previous

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grievances (Ref: letter dated 18 Feb 1999) (Letter dated 4 Feb 1999)
(Col Tuckey’s letter of March 1999). Both ended with labor and
management agreeing to not reduce in any way staffing until a risk
assessment could be performed.
The union advises that inadequate personnel create the risk of
on fire scene damage[,] risk of failure in transport[,] and places
firefighters and the personnel they protect in danger, [and] is a
violation of Article 17, Sections 1 and 2, AR420-90 and DOD 6055.6.
Finally, working below minimum standard requirements places
additional burdens and demands on responding personnel to take up
the slack and advance and apply fire streams on the fire, increasing
the risk of injury. Reduced manning also delays fire rescue attempts
and places fire fighters already in an unsafe work environment at
more risk.
The resolution that we seek is to discontinue Basic Life Support
until staffing can be maintained a[t] the initial response levels per
AR420-90 and DODI 6055.6.
The representative in this grievance will be Mr. W. L. Shipes,
AFGE Local 2017 Vice President … . … JX 2.

Pertinent Provisions Of The Labor—Management Agreement

LMA, Article 17, Safety and Health, provides in pertinent part:

SECTION 1. The health and safety of employees is of paramount


importance to the successful accomplishment of the mission of the
Employer. Such matters are a collective effort and the Employer, the
Local, and employees will cooperate to maintain high safety and
health standards. All work practices and conditions pertaining to
health and safety will be in keeping with OSHA Regulations,
applicable laws, rules, and regulations.

SECTION 2. The Employer will extend every reasonable effort to


provide and maintain safe working conditions so as to protect the
safety and health of the employees. Accident prevention is a
management responsibility. Management must ensure compliance
with the Safety Program and establish necessary additional
requirements to ensure the safety of personnel. …

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SECTION 13. An employee or group of employees who believe that
they are being required to work under conditions which are
unnecessarily unsafe or unhealthy beyond the normal hazards inherent
to the operation in question, shall have the right and are encouraged to
bring these situations to the attention of the appropriate official for
corrective action. If the situation or conditions are not resolved, the
employee shall have the right to file a grievance. … (Emphasis
supplied.)

LMA, Article 35, Negotiated Grievance And Arbitration Procedure,

Section 8 further provides:

Grievances submitted at steps which require the grievance to be in


writing will contain the following information:

a. A statement of the complaint citing the specific Section(s) and


Article(s) of this Agreement or the specific provision(s) of the law(s),
rule(s), or regulation(s) which have been allegedly violated,
misinterpreted, or misapplied, and … how each cited Section, Article,
law, rule, or regulation is believed to have been violated. …
(Emphasis supplied.)

From the foregoing provisions of the LMA, it is clear that the Union has

standing to seek enforcement of governmental safety standards against the

Agency, including those promulgated by the Agency itself.

Army Regulations And Department Of Defense Instructions

The purpose of Army Regulation 420-90 (September 10, 1997) is

stated as follows:

This regulation implements statutes and DODI 6055.6, DOD Fire &
Emergency Services (F&ES) Program, requirements. It prescribes
Army policies and responsibilities covering all fire fighting
(structural, aircraft, and wildland) by civilians or military, fire
prevention (technical services), hazardous materials (HAZMAT)

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response, emergency medical services (EMS), confined space rescue,
disaster preparedness, and ancillary services. Id., Chapter 1, Section I,
Paragraph 1—1.

The regulation was issued pursuant to the following authority:

Statutory authority is: Public Law 91-596, Occupational Safety and


Health Act (OSHA) of 1970 and Titles 29 CFR Parts 1910 and 1960
(and other Code of Federal Regulations applicable to Fire &
Emergency Services); Title 10, U.S.C., Uniform Code of Military
Justice, Chapter 47; and issuances from the Office of Management
and Budget (OMB) and the General Services Administration (GSA).
Id., Chapter 1, Section I, Paragraph 1—4.

AR 420-90, Section 2-1 states in pertinent part:

a. Commanders will ensure that the following standards are used to


meet staffing requirements:
(1) Appendix B, Enclosures 5-7, Manpower Staffing Standards
System (MS-3) Final Report (FIN-REP)/Application Fire
Protection (Army Common) CONUS, dated January 1989, and
the following contain staffing guidance.
(2) HAZMAT: OSHA 29 CFR 1910.120.
(3) Confined Space: OSHA 29 CFR 1910.146.
(4) EMS: DODI 6000.10 and applicable local regulations.
(5) Biological Defense Safety Program: 32 CFR Part 626 …
c. Cross staffing of F&ES apparatus is authorized. AX 2.

A copy of DODI 6055.6 (December 15, 1994) was included as

Appendix B to AR 420-90. That instruction was superceded by DODI

6055.6 (October 10, 2000). Unless otherwise indicated, all references to

DODI 6055.6 are to the current version.

DODI 6055.6, Enclosure 5, copy of which was received into evidence

without objection as UX 2, provides:

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MINIMUM STAFFING REQUIREMENTS FOR
FIRE AND EMERGENCY SERVICES APPARATUS

FIRE APPARATUS IDENTIFIERS STAFFING REQUIRED PER


APPARATUS

1. ARFF Apparatus 3

2. Structural Apparatus 4

3. Aerial Fire Apparatus 4

Only Structural and Aerial Fire Apparatus are at issue here; Air Rescue Fire

Fighting (ARFF) Apparatus are not involved.

The Agency’s Response To The Grievance

Lieutenant Colonel Thomas B. Howe responded to the grievance, in a

letter dated June 8, 2001 (JX 3):

After carefully reviewing the issues outlined in your grievance


letter, Reference No. 177, and the additional issues brought forth in
my meeting with Mr. Shipes concerning this grievance on 22 May
2001, I have decided to deny the grievance with the following
comments: …
The actual risk to the soldiers, their family members, civilian
employees and visitors to the installation without emergency
responders far outweighs the risk to Fire and Emergency Service
personnel. This is based on the number of actual fires versus
emergency responses that occurred simultaneously, as documented in
fire call logs and daily journals. …

Arbitration And The Issue Presented

By letter dated June 29, 2001 (JX 5), the Union requested arbitration.

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A hearing was held on December 10, 2001, at Fort Gordon near Augusta,

Georgia. Briefs were due January 10, 2002, and have been timely received,

so that the matter is ripe for decision. The parties could not agree as to the

issue presented, so the arbitrator, acting pursuant to Article 35, Section 12.d

of the LMA, states the issue as follows:

Whether the staffing requirements of DODI 6055.6, Enclosure 5 may


be met by dispatching a fire truck with two firefighters and an
emergency vehicle with two more?

Under the plain language of the DOD instruction and the evidence presented

at the hearing, they may not.

Findings

The Union presented its case through James L. Pennington, a

supervisory firefighter and assistant fire chief since 1979, who has been at

Fort Gordon since April of 1992, and through Willford Lee Shibes, Jr., a

Union vice president, who fought fires for 27 years, 20 of them at Fort

Gordon, before retiring. The following facts may be gleaned from their

testimony and the exhibits admitted:

Historically, the fire department responded to emergencies other than

fires, only when specifically requested to do so. Eisenhower Army Medical

Center personnel had first-response responsibilities for medical emergencies.

Over the years, the fire department’s emergency responsibilities were

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expanded to include confined-space rescue, hazardous materials, and

terroristic threats.

Within the past few years, management decided that fire crews could

respond more quickly to medical emergencies than EAMC personnel,

especially since the fire station is located nearer some key sites, so a medical

emergency response capability was added. As the fire department’s

responsibilities increased, so did the requisite equipment on the emergency

vehicle. Despite the fire department assuming first-response responsibilities

for medical emergencies coequal to those of EAMC, there has been no

decrease in staffing among EAMC emergency personnel.

Standard firefighting procedure, known as 2+2, calls for two

firefighters to remain outside a burning structure, as a safety precaution, for

each two who enter the structure to fight the fire. Instead of sending 4

firefighters out on a fire truck, the practice at Fort Gordon became to send 2

out on a fire truck and 2 in an emergency vehicle; the latter were to serve as

the outside safety personnel. Over time the practice degenerated into sending

out only 2 firefighters on a fire truck.

The Agency’s Defense

The Agency responded to the Union’s case through the testimony of

Chief Curtis Williams, a well educated and seasoned firefighter, who came

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to Fort Gordon only recently, July 26, 2001. His testimony did little to allay

the Union’s concerns over the safety of its members. Chief Williams

testified that a fire truck can be at the scene of any fire within 5 minutes

from the time the fire department is called, and that an emergency vehicle

can follow within 10 minutes from the time of the initial call. In case of fire,

he would want an emergency vehicle on the scene because it has capabilities

that a fire truck lacks, such as equipment for handling hazardous materials,

for producing compressed air, and for providing lighting.

There is no protocol spelling out what firefighters on medical

emergency runs may or may not do. Chief Williams is in the process of

developing one, although the Union insists that the protocol is a matter for

negotiation. As things now stand, both firefighters and EAMC personnel

may respond to a medical emergency. The first to arrive take charge of the

situation. If a medical emergency arises while firefighters are fighting a fire,

EAMC personnel may be informed that the arrival of the fire department’s

emergency vehicle may be delayed.

The Agency’s entire defense is based upon AR 420-90, Chapter 2,

Section 2-1.c, which simply provides that “[c]ross staffing of F&ES

apparatus is authorized.” Cross-staffing is defined in the regulation as:

A structural or ARFF fire fighting crew, cross trained and used on


other F&ES apparatus without any increase in staffing. For example, a

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structural fire fighting crew may cross staff HAZMAT, or Rescue
apparatus. AX 3.

The Agency insists that it is merely engaged in cross-staffing.

Discussion

The issue is not cross-staffing of the emergency vehicle but rather

understaffing of the fire trucks. The crux of the Union’s complaint is that

fire trucks are dispatched to fires with only 2 firefighters aboard, not the 4

required by the DOD instruction. Two other firefighters may or may not

arrive later in an emergency vehicle. The 2+2 rule is honored in the breach.

The result is that firefighters’ safety is jeopardized. As the Union

representative pointed out in his opening statement, the issue is really quite

simple.

The Agency adduces no authority that DODI 6055.6, Enclosure 5 has

ever been given anything but its plain meaning. The instruction

unequivocally calls for fire trucks to be staffed by a crew of four, which

means 4 now, not 2 now and maybe 2 later. The definition of cross-staffing

does nothing to alter the plain meaning of four. The phrase, “without any

increase in staffing”, found in the definition of cross-staffing, surely refers to

the apparatus being cross-staffed, meaning there is no requirement that crew

size be increased merely because an apparatus is being cross-staffed. The

definition in no way authorizes a decrease in the staffing level of any

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apparatus.

LMA Chapter 35, Section 12.e provides:

The arbitrator shall not have the authority to add to, delete from,
change, alter, amend, or modify this Agreement, published policies, or
regulations. (Emphasis supplied.)

Even if the arbitrator were sympathetic to the Agency’s position, he would

be powerless to override the clear mandate of the Department of Defense’

staffing requirement, under which each fire truck is to be staffed by four

firefighters.

DOD instructions aside, the Chief’s own testimony makes it difficult

to accept the Agency’s position. If, as he testified, the emergency vehicle has

an abundance of equipment useful at the scene of a fire, then someone must

be manning that equipment. Fort Gordon’s own disastrous experience has

shown that 4 firefighters really are required to staff a fire truck. The

emergency vehicle may not arrive for 5 minutes or more after the fire truck.

The 2+2 standard operating procedure simply cannot work under these

conditions. Both firefighters and fire victims are placed at increased risk.

Thus, even if the arbitrator were authorized to grant dispensation from the

regulations, he would not be inclined to do so under the facts presented.

The Appropriate Remedy

Although in its grievance letter of April 24, 2001 (JX 2), the Union

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requested that the fire department “discontinue Basic Life Support until

staffing can be maintained a[t] the initial response levels per AR420-90 and

DODI 6055.6,” in its brief, the Union asks only that “management will not

in the future go below minimum stand[ards] on fire apparatus … .” The

latter remedy is the appropriate one under the circumstances of this case.

While LMA Article 35, Section 8.b requires that the written grievance

specify the remedial action sought, nothing expressly limits the arbitrator’s

award to the specific remedy requested. Indeed, since the LMA authorizes

the arbitrator to frame the issue, it would seem that he should have similar

leeway in fashioning a remedy. The authorities support that view. Elkouri &

Elkouri, How Arbitration Works (ABA/BNA 5th ed 1997) @ 390-395. In this

case, the Union initially sought to have the fire department’s emergency

medical responsibilities suspended until staffing of fire trucks is brought up

to mandated levels. Because the evidence about fire department operations

was sketchy, the arbitrator declines to specify just how its operations should

be modified to best meet staffing standards.

Even if there were more evidence upon which to formulate a remedy,

the arbitrator’s role is not to micromanage the Fort Gordon fire department.

Chief Williams is far better qualified for that job. He may decide that

overtime is required, he may hire additional firefighters, he may dispatch

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both a fire truck with a full crew and an emergency vehicle to fires, he may

transfer equipment from the emergency vehicle to the fire trucks, he may

curtail the fire department’s emergency medical responses—the decision is

his. The LMA itself states that “[a]ccident prevention is a management

responsibility,” and the arbitrator leaves that task to management. The

arbitrator rules only that the cross-staffing provisions of AR 420-90 provide

no justification for deviating from the staffing requirements of DODI

6055.6.

City Of Larado Distinguished

In City of Larado, 91 LA 381 (McDermott, Arb 1988), firefighters

grieved the city’s failure to maintain a staffing level of four firefighters on

its fire trucks. In light of the limiting language of the collective bargaining

agreement, the arbitrator reached the following conclusions:

The City has been in violation of the terms of the agreement and the
spirit of the Agreement … , by not endeavoring to maintain four
person crews on Pumpers and Aerial Ladder trucks. Because this
provision is not mandatory, this Arbitrator has no authority to direct
the City to institute four person crews. It is, however, an obligation of
the City to strive to carry out its commitment to endeavor to maintain
the four person crews … . Id. @ 386.

In the case under consideration, the language of DODI 6055.6 is

mandatory, as is the contractual language restricting the arbitrator’s

authority to deviate from “published policies, or regulations,” so that the

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arbitrator has no discretion not to enforce the plain language of the DOD

instruction.

Award

For all the foregoing reasons, the grievance is SUSTAINED as to the

issue presented. Effective immediately, no fire truck (structural or aerial)

shall be dispatched to a fire with fewer than four firefighters aboard. The

grievance is DENIED as to the remedy originally requested but

SUSTAINED as to the modified remedy, and the onus of complying with

DOD staffing requirements is placed upon the Agency. If any disagreement

remains about the Agency’s solution to the staffing problem, then the parties

are free, by mutual agreement, to return to the arbitrator for further

resolution.

________________________________ Dated January 18, 2002


E. Frank Cornelius, Arbitrator

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