Milwaukee Professional Firefighters, Local 215, IAFF, AFL-CIO v. City of Milwaukee

• Citation: 78 Wis.2d 1,253 N.W.2d 481
• Decision Date: 17 May 1977
• Docket Number: AFL-CI,No. 75-67,R,75-67
• Parties: , 95 L.R.R.M. (BNA) 2684 MILWAUKEE PROFESSIONAL FIREFIGHTERS, LOCAL 215, IAFF,espondent, v. CITY OF MILWAUKEE, and William Stamm, Chief Engineer, Milwaukee Fire Department, Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 481

253 N.W.2d 481

78 Wis.2d 1, 95 L.R.R.M. (BNA) 2684

MILWAUKEE PROFESSIONAL FIREFIGHTERS, LOCAL 215, IAFF, AFL-CIO, Respondent, v. CITY OF MILWAUKEE, and William Stamm, Chief Engineer, Milwaukee Fire Department, Appellants.

No. 75-67.

Supreme Court of Wisconsin.

Argued March 28, 1977.

Decided May 17, 1977.

Thomas E. Hayes, Asst. City Atty., for appellants; James B. Brennan, City Atty., on briefs.

John S. Williamson, Milwaukee, for respondent; Goldberg, Previant & Uelmen, S.C., Milwaukee, on briefs.

This is a labor relations case involving a dispute between the Milwaukee Professional Firefighters, Local 215, IAFF, AFL-CIO (hereinafter "Association") and the city of Milwaukee (hereinafter "City"). The source of the controversy is certain orders issued on December 6, 1974, by Fire Chief William Stamm which called for the implementation of new rules regarding the scheduling of special duty overtime work, vacation days and off days for the firefighters for the years 1975 and 1976. The Association challenged the orders claiming they were issued in violation of a collective bargaining agreement between the parties, which was effective for the period of November 4, 1973 to February 28, 1975. Pursuant to the terms of the agreement, the parties submitted the dispute to final and binding arbitration. The arbitrator concluded the orders did violate the agreement and ordered that the scheduling of duty in the fire department for 1975 be conducted in the same manner as it had been for the year 1974. The arbitrator's award was confirmed by the circuit court, and thereafter the circuit court found the City and Chief Stamm in contempt for failing to observe the court's judgment confirming the award.

In order to consider the issues raised in this case it is necessary to understand the complicated system of work scheduling within the Milwaukee Fire Department and to review the factual and legal circumstances which led to this appeal by the City and Chief Stamm.

The fire department operates on a three platoon system, in which the platoons rotate duty every 24 hours at 8:00 a. m. Thus each firefighter is assigned to a platoon which works 24 hours and then is off for 48 hours. Each platoon is composed of approximately 345 persons and the minimum number of persons which must be on duty at all times for the department to properly function is 296.

The basic schedule, therefore, for a firefighter is a 24 hour day of work every three days. Out of this basic schedule, each person is entitled to a certain number of days, on which they normally would be on duty, off duty with pay. These days are denoted work reduction days, holiday offs, and vacation days. A description of each follows. Regular municipal employees are entitled to six work days off for holidays during a year, but because firefighters are not able to take holidays as other employees and because of their unusual work schedule, they are given two full 24 hour days off. This amounts to 48 hours for holidays, equal to six eight-hour days off for a regular employee. These two days off for holidays are termed holiday offs. Work reduction days were created to decrease the average hours worked per week by firefighters to an amount agreed upon in collective bargaining. Each firefighter is entitled to eight work reduction days off the regular schedule. Finally, each firefighter is entitled to vacation days, the number of which varies with the number of years a person has been on the force. For example, a person with one to seven years of service is eligible for five work days off for vacation, while one with over 25 years of service is eligible for twelve work days off.

The fact each person in the department is entitled to the above days off is the reason why each platoon is composed of about 345 persons, while only 296 are necessary to meet minimum staffing requirements. On each work day, of the particular platoon on duty, approximately 50 persons are off duty. On occasion, the number of persons scheduled for duty falls below the minimum staffing requirements and when this occurs the deficiency is compensated for by firefighters from the other platoons working special duty or overtime.

The work schedules of all the firefighters for an entire year are prepared in advance. For the year 1974 the work schedules were established during the last two months of 1973 through the following procedure. The coming year was broken down into ten cycles of 36 days each. Thus, each cycle included twelve work days for each platoon. Work reduction days, holiday offs, and vacation days were designated for each platoon member through selection processes. Limits were placed upon the number of persons who could pick any particular day off, and selections were made according to seniority. The eight work reduction days and two holiday offs, amounting to ten off days, were allocated by placing one in each of the ten cycles for each employee. To do this, each platoon member selected a number, from one to twelve, which designated the particular numbered work day in each cycle which that member would have off, either as a work reduction day or holiday off. For example, if a person selected number two, that person would then have off the second work day in each of the ten cycles. Days off designated by this selection, termed paid off-days, were, therefore, twelve work days apart.

Vacation days were also determined through selection on the basis of seniority. Up to the number to which a firefighter was entitled, a series of consecutive work days could be selected for vacation, or a firefighter could intersperse his or her vacation days throughout the year. Because of the high demand for summer vacation days, no person was permitted to select more than six days during a specified summer period, comprised basically of the months of June, July and August.

Although these procedures established a basic work schedule for the firefighters, the schedule was not absolutely unalterable. A procedure was also available during the year by which firefighters could, with some restrictions, trade off-days with other members in their platoon. In addition, firefighters could volunteer for special duty overtime. All special duty was voluntary and paid for at the straight rate of pay. Assignments for special duty were made in the evening before the day extra personnel would be needed, and assignments were made from volunteers in the platoon on duty at the time they were made.

On December 6, 1974, Chief Stamm issued four special orders (numbered 4-74, 5-74, 6-74 and 7-74) and a special notice which set forth the procedures by which work schedules for 1975 and 1976 would be established. The announced procedures contained several differences from those used for the year 1974.

The changes were ordered for the purpose of minimizing the number of overtime hours worked by firefighters. This effort to minimize overtime was in response to certain amendments, passed by Congress in April, 1974, to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. These amendments were designed to extend the coverage of the act to firefighters, effective January 1, 1975. Under the amendments, municipal employers, during the year 1975, were required to pay firefighters overtime compensation at a rate of one and one-half times the straight time rate for all hours worked in excess of that amount of hours which bears the same ratio to the number of days in the period as 240 hours does to 28 days. See 29 U.S.C. § 207(k) (1975). Prior to these amendments the Fair Labor Standards Act did not apply to employees in fire protection activities for public agencies, and thus, all hours regardless of the amount worked in any period could be paid for at the straight pay rate. The City estimated that had the amendments applied during 1974, it would have been obliged to pay an additional $197,000, due to time and a half overtime pay, above that which it did pay.

It is worthy of note that the United States Supreme Court recently declared unconstitutional these amendments to the Fair Labor Standards Act which prompted the City to change its scheduling procedure for firefighting personnel. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).

Although the amendments were enacted in May of 1974, the City was unable to develop revised schedules and policies which would avoid overtime payments until November of 1974 when the Department of Labor issued proposed regulations, 29 C.F.R. Part 553, for determining hours worked and work periods under the amendments in respect to employees of public agencies engaged in fire protection activities.

After the proposed regulations were issued in November, the City completed revised policies to be effectuated through the issuance of the orders and special notice referred to above. A discussion of the revisions to be accomplished by the orders and notice follows.

Order 6-74 related to the scheduling of off-days for 1975 and 1976. Under this order, the 36-day work cycle was discarded for a 27-day cycle. Thus, there would be thirteen 27-day cycles from January 1, 1975 to December 17, 1975, and fourteen 27-day cycles from December 18, 1975 to December 29, 1976. Order 6-74 further provided that each firefighter, as in 1974, would be assigned one off-day, e. g., work reduction day or holiday off, during each work cycle, which included nine scheduled work days for each platoon. However, because there would be thirteen work cycles in 1975 and fourteen in 1976, while there had been only ten in 1974 due to the longer cycle, it was therefore necessary to obtain more off-days than the ten work reduction days and holiday offs, so that one off-day could be placed in each cycle. These extra days were to be taken from each firefighter's allotment of vacation days. Therefore, three vacation days from a firefighter's 1975 vacation days and four days from the 1976 allotment were included...