Discipline Over Non-Participation in a Fitness Program
Today’s burning question: Our union agreed to a physical fitness program and now the administration is threatening to discipline members who they feel have not been participating enough. Can they do that?
Answer: As a general rule, a fire chief cannot discipline a firefighter for failing to comply with a contractual requirement, only for violating a fire department rule, regulation, policy or procedure. Thus, an initial question is: did the department adopt a physical fitness policy/program? Assuming your department did in fact adopt a formal physical fitness program, the question then becomes: does the fitness program comply with the terms of the collective bargaining agreement? If it does then yes the fire department could discipline a firefighter for violating the physical fitness policy.
That issue is playing itself out in a dispute between Sylvania Township, Ohio and Sylvania Township Firefighters, IAFF Local 2243. The parties agreed to a fitness program in their collective bargaining agreement. The contract does not specify a minimum compliance level, and the Township appears to have unilaterally established a participation threshold of 1 hour of physical training per day 80% of the time. The Township is now threatening to discipline firefighters who fail to meet the participation threshold.
Here is the language from the CBA, with Paragraph 38.3 being the most relevant:
ARTICLE 38
PHYSICAL FITNESS
38.1 The Employer agrees to implement an Employee Wellness & Fitness program based on the guidelines of the Joint Labor Management Wellness Fitness Initiative (JWFI). The Employer recognizes the value of Peer Fitness Trainers, a key component of the JWFI who are licensed by the American Council on Exercise (ACE). The Employer agrees to provide for the required maintenance of the Peer Fitness Trainer License through ACE or any other affiliate recognized by the JWFI for no less than three (3) Employees.
38.2 The Employer will make every effort to maintain in good working condition its current inventory of physical fitness equipment. The Employer at its discretion may choose to augment or upgrade the current inventory of physical fitness equipment. In connection with any such augmentation or upgrade, the Employer will solicit input from the designated Peer Fitness Trainers as outlined in Section 38.1.
38.3 Employees shall participate, at some designed level, in the Fire Departments on going Wellness and Fitness program. In an effort to maintain an effective program, the Employer agrees to establish a goal of one and one-half (1.5) hours of time per shift for platoon employees to participate in the Wellness & fitness program, day work employees will be provided similar opportunities to participate..
Local 2243 has filed a grievance against the Township’s policy claiming it violates the terms of the CBA. The fire chief and the Township Board have denied the grievance and the matter appears destined for arbitration.
The pertinent language in Paragraph 38.3 can be read to anticipate that a designated level will be established: Employees shall participate, at some designed level, in the Fire Departments on going Wellness and Fitness program. The language does not specifically say that the Township can unilaterally set the threshold, but at the same time it doesn’t mandate agreement between the parties before a threshold can be set. The management rights provision is not that helpful because is says:
7.1 The Employer retains the sole right to manage its operations and to direct the work Force… subject only to such regulations governing the exercise of these rights as expressly provided by this Agreement.
At the same time, Paragraph 38.3 says: It is understood that this program is goal oriented, and rehabilitative in nature. While participation is required, it is understood that the parties are seeking individual progress, not attempting to meet any specific set, or adopted standards. This provision suggests almost the opposite of the “at some designated level” statement… that the parties agreed not to establish a specific minimum threshold.
And that, children, is why we have arbitrators!!!!
One final note – I started this post by saying a firefighter generally cannot be disciplined for violating a contractual provision. The Sylvania Township CBA has an interesting provision in the management rights section. Take a look:
7.2 The Employer retains the sole right to discipline, suspend, and discharge employees for just cause, including violation of any of the terms of this Agreement, provided that in exercising this right it will not act in violation of this Agreement.
So in Sylvania Township a firefighter could indeed be disciplined for violating the contract.
Here is a copy of the CBA: 13-MED-10-1291
“As a general rule, a fire chief cannot discipline a firefighter for failing to comply with a contractual requirement, only for violating a fire department rule, regulation, policy or procedure. ”
Can you expand on this at all? Is there precedent for this?
ChargedBed… Interesting screenname
Yes – ordinarily an employer can discipline an employee for violation of workplace rules that the employer establishes. When dealing with a public employee – the concept of substantive due process places additional requirements and limitation on employers. The bottom line – a public employer such as a fire department cannot ordinarily discipline a firefighter for doing things that are not prohibited by clearly articulated workplace rules.
There are numerous examples of precedent. One out of Ohio is Bowman v. Bulter Township, where a township sought to discipline a FF for downloading violent content on to the township’s computers. There was no clear rule against it and the discipline was overturned.
Do you have an example of an attempt to discipline for a contractual issue that was not a department SOP or regulation?
I do not recall reading a case like that where an appellate court specifically ruled that in a precedent settling decision. I’d be happy to research it four you @ $250/hr. and I am confident cases will be found. But the principle is the same: an employer cannot discipline an employee for something that is not prohibited by workplace rules. If the workplace rules prohibit a FF from violating the CBA… you are back to square 1 – and a FF could be disciplined for violating the CBA.
After thinking about it – even a provision in the CBA like the one Sylvania Township has – may not be enough to warrant discipline because the CBA itself is arguably (ie arguments can be made either way) not a workplace rule.
Thank you for the answer. You do not sound like a broken record. I am viewing this from the perspective of a grievance committee in my local and I enjoy law. I should have been smarter when I was younger and became a lawyer, not a firefighter. I do believe the first thing I will be rereading when I get back is my departments rules and regulations.
Thank you for the extra effort here.
Edit: Just to let you know I have cited your Social Media article on many times. Glad to see your writing in FireHouse too.
ChargedBed – Its never too late to go to law school. To me – what the typical firefighter experiences during the course of a career is great preparation for law school. I run into folks all over the country who are taking that step – and age is no barrier. To me – it is a perfect fit!!!!