AWARD OF THE ARBITRATOR

In the Matter of the Arbitration between: )

)

PROFESSIONAL FIREFIGHTERS ASSOCIATION ) John F. Sass

OF OMAHA, LOCAL 385, AFL-CIO ) Arbitrator

)

-and- )

) FMCS Case No.

CITY OF OMAHA, NEBRASKA ) 141030-00299-A

)

)

Concerning the Issue of: ) Date of Award:

) September 12, 2014

COMPLIANCE WITH NFPA STANDARD 1710 )

_____________________________________________________)

INTRODUCTION

The arbitration hearing in this case was held on June 10 and 11, 2014, at the Office of the

City Attorney in Omaha, Nebraska. The Union was represented at this hearing by John E.

Corrigan, from the law firm of Dowd Howard & Corrigan, LLC. The City was represented by

Bernard J. in den Bosch, Deputy City Attorney.

At the hearing, the parties stipulated that the Arbitrator had the authority to frame the

issue or issues to be decided in this case after hearing the evidence and arguments submitted.

Based upon that authority, the Arbitrator frames the issues for decision as follows:

Did the City violate Article 44, Section 1, of the collective bargaining agreement

in this case, and if so, what is the appropriate remedy?

The following witnesses testified at the hearing:

1. Steve LeClair – Firefighter for City and President of IAFF Local 385

2. Loren Scott Muschall – retired from Omaha Fire Department (positions with the

Department included Firefighter, Captain, Battalion Chief, and paramedic)(also

formerly Secretary of IAFF Local 385)

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3. Brent Van Scoy – Fire Apparatus Engineer and database administrator for the Fire

Department

4. William Bryson – Chair of the National Fire Protection Association (NFPA) 1710

Committee (last 6 years); also retired Fire Chief of the City of Miami Fire

Department and the Miami-Dade County Fire Department

5. Michael F. McDonnell – Retired Fire Chief of the Omaha Fire Department, and

former Captain, Battalion Chief, and Assistant Chief (also former President and

Secretary of IAFF Local 385)

6. Steve Kerrigan – Labor Relations Director and Assistant HR Director for City of

Omaha

7. Shane Hunter – Assistant Chief of the Omaha Fire Department

8. Bernard Kanger – Fire Chief of the Omaha Fire Department, and formerly Interim

Chief, Operations Battalion Chief, Captain, and Fire Apparatus Engineer

At the hearing, there were 45 Exhibits marked for identification, and 40 of those were

admitted into evidence. All of the exhibits are listed in the official transcript of the proceedings

and need not be listed here.

The hearing was recorded by April E. O’Malley, General Notary Public, from the office

of Thomas & Thomas Court Reporters, Omaha, Nebraska. After the hearing, the Reporter

prepared a transcript of the hearing and made copies available to the Arbitrator and to the parties.

Both parties then filed simultaneous post-hearing briefs, which were received by the Arbitrator

on or about July 21, 2014.

STATEMENT OF THE CASE

The grievance in this case was filed on July 15, 2013. The grievance claims that the City

was in violation of Article 44 of the parties’ collective bargaining agreement (hereinafter, CBA)

“which obligates the City to establish overall staffing and daily staffing in the Fire Department in

adherence to the provisions of the National Fire Protection Association (NFPA) Standard 1710.”

The remedy requested by the Union was for the City to “be required to adhere to the provisions

of the CBA, including the City’s obligations to determine daily staffing and overall staffing in

accordance with the NFPA Standard 1710 . . . and add the necessary engine, truck and medic

units into service in order to comply with the provisions of the CBA that are being violated.”

The City denied that it was in violation of the CBA, and when the parties could not

resolve this grievance in the lower steps of their contractual grievance procedure, the Union

notified the City that it wanted to take the matter to arbitration. There is no dispute about the

arbitrability of the grievance, or about the timeliness of either the grievance or the request for

arbitration. The parties jointly selected the undersigned Arbitrator to hear and decide this case,

and the matter is now properly before the Arbitrator for decision.

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RELEVANT CONTRACT LANGUAGE

ARTICLE 44 – STAFFING

SECTION 1 In accordance with this article the City has discretion to establish the overall

staffing, daily staffing, and staffing by rank for the Omaha Fire Department. In

exercise of such discretion, however, the City shall adhere to general orders

from the Fire Chief (GO FC 2011-06), and/or Executive Orders from the Mayor

(S-21-11).

SECTION 7 The City has the discretion to take rigs out of service for economic or budgetary

reasons and with full regard for both employee and public safety considerations,

including but not limited to NFPA 1710. The City shall attempt to provide

adequate notice to the Union as to when such rigs will be taken out of service.

The failure to give such notice, however, shall not be considered a violation of

this labor agreement.

[The following language was added to Section 7 by an amendment to the

agreement that was passed by the City Council and approved by the Mayor

in December, 2013] With the exception of Medic 3, it is understood that all

other apparatus (Engines, Trucks, Medic Units) in service as of February 4,

2013, will remain in service until this collective bargaining agreement (contract)

is replaced by a successor agreement or the parties receive a final order from the

CIR for contract year 2015, in the event the parties are unable to reach an

agreement covering that contract year. Apparatus temporarily out of service on

February 4, 2013, for training, public relations events, and demonstrations will

also remain in service for a like period.

FIRE CHIEF GENERAL ORDER – GO FC 2011-06 NFPA 1710

It shall be the policy of the Omaha Fire Department (OFD) to maintain compliance with the

National Fire Protection Association (NFPA) 1710 Standard for the Organization and

Deployment of Fire Suppression Operations, Emergency Medical Operations, and Special

Operations to the Public by Career Fire Departments in place at the time of the adoption of this

General Order, a standard which sets minimum standards for firefighter deployment, response

times and other factors involved in determining service delivery of firefighting and emergency

medical systems for the citizens we serve. For several years, OFD has not only met, but

exceeded the minimum criteria set forth in NFPA 1710. It is this standard that has allowed OFD

the flexibility to make significant changes to both apparatus in service and apparatus locations,

while allowing the department and the City to address their budgetary concerns. In the event that

NFPA 1710 is revised after adoption of this General Order, the City shall determine whether it

shall follow NFPA 1710 in effect at the time of the adoption of the General Order or with the

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revised NFPA 1710. The City agrees to meet and confer on a monthly basis with the

Professional Firefighters Association of Omaha, Local 385, to review OFD’s compliance with

NFPA 1710.

Signed: Michael McDonnell, Fire Chief Date: May 20, 2011.

MAYOR’S EXECUTIVE ORDER NO. S-23-11

CITY OF OMAHA’S ADHERENCE TO NATIONAL

FIRE PROTECTION ASSOCIATION 1710 STANDARD

PURPOSE

To formally adopt and pledge the City of Omaha’s adherence to NFPA 1710 Standard for the

Organization and Deployment of Fire Suppression Operations, Emergency Medical Operations,

and Special Operations to the Public by Career Fire Departments (2010 Edition).

POLICY

Upon the advice of the Omaha Fire Chief, and in order to safely and efficiently manage the Fire

and Suppression operations of the Omaha Fire Department, the City of Omaha adopts and agrees

to comply with NFPA 1710 in its entirety. NFPA specifies the minimum criteria for addressing

the effectiveness and efficiency of career public fire suppression operations, emergency medical

services, and special operations delivery in protecting the citizens of Omaha and the occupational

safety and health of Fire Department employees.

Compliance with NFPA 1710 shall be the obligation of the Fire Chief, within the dictates of that

office, who in his/her discretion shall determine the manner in which fire suppression operations

and emergency medical services, and special operations are staffed and deployed to meet the

City’s twin goals of public safety and the safety of all Fire personnel.

BY THE POWER VESTED IN ME AS MAYOR BY SECTION 3.04 OF THE HOME RULE

CHARTER OF THE CITY OF OMAHA, 1956, AS AMENDED, I HEREBY PROCLAIM

THIS TO BE THE EXECUTIVE ORDER ESTABLISHING AND GOVERNING THE CITY’S

ADHERENCE TO NATIONAL FIRE PROTECTION ASSOCIATION STANDARDS.

Signed: Jim Suttle, Mayor Dated: May 23, 2011.

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RELEVANT PARTS OF NFPA 1710 STANDARD

4.1.2.1 The fire department shall establish the following objectives:

(1) Alarm handling time to be completed in accordance with 4.1.2.3.

(2) 80 seconds for turnout time for fire and special operations response and 60 seconds turnout

time for EMS response.

(3) 240 seconds or less travel time for the arrival of the first arriving engine company at a fire

suppression incident and 480 seconds or less travel time for the deployment of an initial

full alarm assignment at a fire suppression incident.

(4) 240 seconds or less travel time for the arrival of a unit with first responder with automatic

defibrillator (AED) or higher level capability at an emergency medical incident.

(5) 480 seconds or less travel time for the arrival of an advanced life support (ALS) unit at an

emergency medical incident, where the service is provided by the fire department provided

a first responder with AED or basic life support (BLS) unit arrived in 240 seconds or less

travel time.

4.1.2.4 The fire department shall establish a performance objective of not less than 90 percent

for the achievement of each turnout time and travel time objective specified in 4.1.2.1.

4.1.2.5 Evaluations.

4.1.2.5.1* The fire department shall evaluate its level of service and deployment delivery and

alarm handling time, turnout time, and travel time objectives on an annual basis.

4.1.2.5.2* The evaluations shall be based on emergency incident data relating to level of

service, deployment, and the achievement of each time objective in each geographic area within

the jurisdiction of the fire department.

4.1.2.6 The fire department shall provide the AHJ with a written report annually.

4.1.2.6.1 The annual report shall define the geographic areas and/or circumstances in which the

requirements of this standard are not being met.

4.1.2.6.2 The annual report shall explain the predictable consequences of these deficiencies and

address the steps that are necessary to achieve compliance.

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THE UNION’S POSITION

The Union argues that the City has not complied with the requirements of NFPA 1710 as

required by the CBA. In order to be in full compliance with NFPA 1710, the City would have to

be meeting the NFPA response time objectives at least 90% of the time. But the evidence here

shows that the majority of the City’s 183 Fires Zones are meeting response time objectives less

than 75% of the time. Other zones are doing better, but overall, the City is still only meeting the

1710 objectives around 80% of the time. The evidence also shows that the City has no plan to

bring the City into full compliance with NFPA 1710, and has not actually done anything of

significance during the term of this CBA to even try to move toward achieving compliance. In

fact, rather than take steps that would move the City forward toward full compliance, the new

Mayor issued her own Executive Order in 2013 backing away from any firm commitment to the

1710 standard, and the City has proposed and approved budgets which cut the Fire Department’s

budget and moved the City even further away from compliance.

The City has conceded in this case that it is obligated by Article 44, Section 1, of the

CBA to adhere to General Order FC 2011-06 issued by Fire Chief McDonnell and Executive

Order S-23-11 issued by Mayor Suttle in May 2011. Both the General Order and the Executive

Order require the City to comply fully with NFPA 1710, but the City is simply not doing that.

Instead, they are acting in accordance with the new Mayor’s 2013 Executive Order which does

not require compliance with NFPA 1710, and also does not comply with the City’s clear

obligations under the CBA.

The Omaha Fire Department collects data to see how it is doing in relation to the NFPA

1710 Standard, but it does not report to the City on all of that data, or even admit to any

significant deficiencies. The Fire Chief’s written report to the City for calendar year 2013 does

not even state what the 1710 objectives actually are, let alone how the Department is doing on

meeting those objectives in each geographic area that it serves. It also does not address the

specific steps that are necessary to achieve compliance with the 1710 Standard, or when the City

will achieve compliance if it continues along its planned course of action.

Evidence presented at the hearing shows that the City has additional equipment that it

could use, but is not using, and that it could assign currently employed firefighters to operate that

equipment, but it has no plans to do so. The City claims that it had planned to purchase and

install more opticom devices at busy intersections which would allow emergency vehicles to

move through more efficiently, but they did not budget any money for that purpose in either

2013 or 2014. The City’s Facilities Master Plan, which was adopted in 2012 and extends out

until 2020, has no plan for any additional fire stations, and only contains a potential earmark for

money to replace two currently existing fire stations that are much in need of replacement, and

that request is not even slated to occur until 2020.

The City argues that Section 7 of Article 44 of the CBA gives it the right to take

equipment out of service for economic or budgetary reasons, but that section must not be

interpreted to effectively nullify the obligations set forth in Section 1 of that Article. Section 7

does allow the City to take equipment out of service for economic or budgetary reasons if it can

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do so without making the City noncompliant with the 1710 Standard, but it cannot use those

reasons as an excuse for not meeting its obligations under Section 1. In fact, Section 7

specifically states that the City’s discretion to take equipment out of service must be exercised

with “full regard” to NFPA 1710.

In the Union’s view, the City is clearly not making any real effort currently to move

toward full compliance with the 1710 Standard within some reasonable period of time, and

unless the Arbitrator now finds the City to be in violation of the CBA, and orders them to at least

take some reasonable steps toward compliance, the City will have no incentive at all to comply

with its obligations under NFPA 1710 and the parties’ CBA. The Union is not asking for the

City to be required to be in full compliance with the 1710 Standard right away. They are simply

asking that the City be required to do what is required to move forward at a reasonable pace

toward that goal, and not be allowed to do anything that would have the effect of taking them

even further out of compliance than they already are. Some immediate steps that could be taken

to improve response times would be to place reserve equipment into service in areas that are in

need of additional service, and to assign existing employees to operate that equipment. In

addition, the Fire Department should be required to issue a new report to the City Council for

calendar year 2013 that complies with the specific reporting requirements set forth in NFPA

1710, and to continue doing that on an annual basis going forward.

THE CITY’S POSITION

The City argues that the Union has the burden of proof in this case, and that it has

not met that burden. The City also argues that the Union’s grievance in this case should be

limited to whether the City was in violation of the CBA and NFPA 1710 on the date that the

grievance was filed – i.e. July 15, 2013. While the Fire Chief’s General Order and the Mayor’s

Executive Order that are incorporated into Article 44, Section 1, of the CBA were both signed in

May, 2011, they did not effectively become a part of the CBA until the current collective

bargaining agreement went into effect on January 2, 2013. Thus, 2013 was the first year that

compliance with NFPA 1710 was required by contract, and the annual evaluation and reporting

requirements under NFPA 1710 were not yet required at the time this grievance was filed in July

2013. Thus, the City was not in violation of the CBA on the date this grievance was filed, and

the grievance should therefore be dismissed without relief.

Concerning the issue of whether the City has ever been in violation of its obligations

under NFPA 1710 with respect to turnout time and travel time for Fire, EMS, and ALS service,

the City argues that it has not been – not only in July 2013, but also clear up to the present time.

NFPA 1710 sets specific “objectives” for turnout time and travel time, but those objectives do

not necessarily have to be met. In fact, the evidence shows that the NFPA 1710 objectives are

difficult to meet, and that other departments studied by NFPA are generally not any better at

meeting those objectives than the Omaha Fire Department is. And if a fire department falls short

of meeting the objectives, the only real requirement under NFPA 1710 is that they evaluate the

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situation, and report to the City on the predictable consequences of the deficiencies and the steps

that are necessary to achieve compliance.

The City’s long term goal is to meet the objectives set forth in NFPA 1710, but there is

no specific time period required for getting to full compliance. In this case, the evidence shows

that, while the City has not met the turnout time and travel time objectives 90% of the time (the

goal set forth in NFPA 1710), it has been making progress toward that goal since 2011, and that

is all that is required. Thus, the City has not been in violation of Article 44 of the CBA in

relation to Fire Department response times at any time relevant herein.

The City also argues that continual progress toward meeting the 1710 objectives is not

necessarily required by the CBA. In the City’s view, Section 7 of Article 44 specifically

recognizes a right on the part of the City to take rigs out of service in the Fire Department for

“economic or budgetary reasons”. Thus, the CBA allows the City to at least temporarily back

away from its longer-term goal of meeting the objectives of NFPA 1710 when economic or

budgetary constraints require it to do so. In the summer of 2013, the City was facing just such

economic and budgetary constraints which could have required layoffs and/or taking equipment

out of service in the Fire Department. Fortunately, the parties were able to come to agreement

on an amendment to the CBA, and that amendment saved enough money in other areas so that

layoffs and taking equipment out of service could be avoided. But if the amendment had not

been agreed to, and layoffs and taking equipment out of service had been necessary, there still

would have been no violation of the CBA.

And finally, the City argues that, even if the Arbitrator allows this grievance to cover all

of the time since the grievance was filed, the only proven violation by the City of NFPA 1710

would be in relation to the adequacy of the 2013 Annual Report of the Fire Department which

was presented to the City in 2014. While that report could conceivably be re-drafted, the City

does not believe that would be worth the time, effort, and money to do so. Thus, if any remedy

is ordered in relation to the reporting requirement, it should only be prospectively in relation to

the 2014 Annual Report which will be produced in 2015.

ANALYSIS AND DISCUSSION

The Proper Scope of the Grievance

As indicated above, the City argues that the grievance in this case only applies to what

was happening around the time that the grievance was filed – i.e. July 15, 2013. The Arbitrator

finds, however, that the grievance applies to not only what was happening on that date, but also

to what has happened in relation to compliance with Article 44 of the CBA and NFPA 1710

since that time. Under the terms of the CBA, the Union need not file a separate grievance for

every day that they allege that a particular violation continues after the original grievance is filed.

In a case such as this, it is understood that, if an alleged violation of the CBA is grieved, and that

alleged violation continues to occur after the grievance is filed, then the original grievance

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covers that continuing violation up until the matter is either resolved by the parties or decided in

arbitration. And, as will be explained further below, the Arbitrator finds that the City was in

violation of the CBA at and around the time this grievance was filed, and that its failure to

comply with NFPA 1710 continued on through the present time.

Interpretation of Article 44, Section 1 and Section 7, of the CBA

The City concedes here that Article 44, Section 1, of the CBA commits it to complying

with NFPA 1710 “in its entirety”.1 Fire Chief McDonnell’s General Order (which is

incorporated into Article 44, Section 1, of the parties’ CBA) clearly states that NFPA 1710

“specifies the minimum standards for firefighter deployment, response times, and other factors

involved in determining service delivery of firefighting and emergency medical systems for the

citizens we serve.” Mayor Suttle’s Executive Order (which is also incorporated into Article 44,

Section 1, of the CBA) states that NFPA 1710 “specifies the minimum criteria for addressing

the effectiveness and efficiency [of the Omaha Fire Department] in protecting the citizens of

Omaha and the occupational safety and health of Fire Department employees.” It is undisputed

that, among the minimum standards or criteria specified by NFPA 1710 are standards for

turnouts and travel time. NFPA 1710 sets separate “objectives” for turnouts and travel time,

along with a required “performance objective” for the “achievement of each turnout time and

travel time objective.” In order to be considered fully “in compliance” with NFPA 1710, the

required “performance objective” that must be “achieved”, for both turnout times and travel

times, is 90%.

The City also claims, however, that Section 7 of Article 44 allows it to back away from

its commitment to meet the NFPA 1710 turnout time and travel time objectives “for economic or

budgetary reasons.” The Union, on the other hand, claims that Section 7 of Article 44 only gives

the City discretion to take rigs out of service when, and if, the Fire Department has managed to

do even better than the minimum standards prescribed in NFPA 1710. After carefully

considering the contract language and other evidence offered in this case, the Arbitrator finds

that the CBA requires a greater commitment to meeting the objectives of the 1710 Standard than

the City is willing to admit to, but not quite as great as the Union claims.

If the City could back away from its commitment to be in compliance with the NFPA

1710 objectives anytime that it could claim some economic or budgetary reason for doing so,

that would be tantamount to no commitment at all. The parties included both Section 1 and

Section 7 of Article 44 in their contract for a reason. And there is no reason at all to think that

the parties intended Section 7 to simply nullify the commitment made in Section 1. Thus, these

two sections must be interpreted together, in a way that gives full meaning to both.

The Arbitrator is not aware of any city that has the resources to do everything and

anything that they might like to be able to do. There are always competing demands that need to

be considered, and choices that need to be made among those demands in order to stay within the

allotted budget. Once a city makes a contractual commitment to do something, however, then it

1 See Mayor Suttle’s Executive Order S-23-11.

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cannot simply decide in its own sole discretion to disregard that commitment just because it does

not have enough money to keep its commitment and also do the other things that it would like to

do.

As the Union points out, any discretion that the City has under Section 7 of Article 44 to

take rigs out of service for economic or budgetary reasons must be exercised “with full regard for

both employee and public safety, including but not limited to NFPA 1710.” Thus, the City’s

discretion to take rigs out of service is clearly intended to be limited by the requirements of

NFPA 1710. If the performance objectives set by NFPA 1710 are not being met, then, at the

very least, the City may not back away from its commitment in Section 1 to meet those

objectives in the absence of some sort of financial crisis or emergency that actually requires it to

do so. The fact that funds are tight and, rather than try to raise new revenue, the City would like

to cut the Fire Department’s budget so that it can have more money to do what it would like to

do in other areas, is simply not a strong enough reason to justify abandoning its contractual

commitment to be in full compliance with NFPA 1710.

The City Has Not Complied with the Requirements of Article 44 in this Case

In January, 2013, the Fire Department and the Union began the monthly meetings

required by the CBA and Fire Chief McDonnell’s General Order (FC 2011-06). The data

collected and compiled by the Fire Department between January and June, 2013, was presented

to the Mayor’s Chief of Staff and the City Council’s subcommittee on public safety. That data

clearly showed that the City was not meeting the minimum standards established by NFPA 1710.

Instead of meeting the objectives for turnouts and travel time at least 90% of the time (as

required in order to be in compliance with NFPA 1710), the Fire Department was only meeting

those objectives between approximately 75% and 80% of the time. At that point, the Fire Chief

was requesting a budget for 2014 of around $94,000,000. The new Mayor, however, proposed a

2014 budget for the Fire Department of only around $83,000,000 – a level that would have

necessitate the layoff of a significant number of Department personnel, as well as taking some

equipment out of service. It is undisputed that such actions would have necessarily resulted in

slower response times by the Fire Department.

The Union felt that the Mayor’s proposed budget for 2014 would take the City even

further out of compliance with NFPA 1710 than it was already, and that this would jeopardize

both public safety and firefighter safety. This is what prompted the Union to file the grievance

that we are concerned with here. And, within just a few days after the filing of this grievance,

Mayor Stothert issued a new Executive Order (S-23-13) which backed away from the City’s

commitment to comply with NFPA 1710 in its entirety, and provided that the City would only

“attempt to comply with NFPA 1710 within the budgetary and economic restraints that may

exist.”

The Arbitrator finds that this evidence clearly shows that, in July 2013, when the

grievance was filed, the City was clearly backing away from its contractual commitment to the

Union in the CBA to “comply with NFPA 1710 in its entirety.” While evidence presented by the

City referred to some economic and budgetary concerns on the part of the City at that point in

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time, the evidence does not show any crisis or emergency that would have necessarily required

significant layoffs and the reduction of equipment in service in the Fire Department. Thus, the

Arbitrator finds that the evidence supports the Union’s claim that the City was in violation of

Article 44 of the CBA at the time that this grievance was filed.

In September 2013, the Mayor increased her proposed 2014 budget for the Fire

Department to $91,205,765. This was significantly higher than her original proposal, but still not

equal to what the Fire Chief had requested, and would have still required some cutbacks in the

Department. The City Council approved that revised proposal, and Fire Chief McDonnell

resigned. The Mayor then appointed an Interim Fire Chief, and negotiations began with the

Union in an attempt to reach an agreement on where the cuts would be made in order to meet the

City’s adopted budget for 2014.

In November, 2013, the City and the Union agreed to amend the CBA by significantly

limiting the amount of paramedic training that the City would have otherwise been obligated to

provide under the terms of the CBA. In exchange for the Union’s agreement to that amendment

– which would save the City a significant amount of money in callback overtime for firefighters

to come in and fill the vacancies created by the people who were in training – the City agreed to

not lay anyone off and, with the exception of Medic Unit 3, to not take any equipment out of

service. While this agreement addressed some of the Union’s most immediate concerns, it did

not resolve the grievance, and the parties proceeded to select an arbitrator and schedule the case

for hearing.

Even after the amendments to the CBA in November, 2013, the City was still obligated

under Article 44, Section 1, to “comply with NFPA 1710 in its entirety.” That obligation was

not diminished by the City’s new agreement in Section 7 of Article 44 to not take any equipment

out of service. Full compliance with NFPA 1710 included not only meeting the performance

objective for turnouts and travel times at least 90% of the time, but also annually evaluating the

Fire Department’s adherence to the performance objectives and filing a written report with the

City Council. And, in order to be in compliance with NFPA 1710, that written report must

“define the geographic areas and/or circumstances in which the requirements of this standard are

not being met”; “explain the predictable consequences of these deficiencies”; and “address the

steps that are necessary to achieve compliance.”

The new Interim Fire Chief did file a written report with the City Council in early 2014

concerning the performance of the Fire Department in 2013. While this report did have a page

devoted to response time performance, and mentions that the Department has “goals” that are

consistent with those published by the National Fire Protection Association, it does not

specifically refer to NFPA 1710 or what the goals are that the Department was committed to

reaching. Nor does it define “the geographic areas and/or circumstances in which the

requirements of this standard are not being met”; “explain the predictable consequences of these

deficiencies”; or “address the steps that are necessary to achieve compliance.” Thus, the 2013

annual report from the Fire Department clearly does not meet the requirements of NFPA 1710.

In addition, the evidence here does not show that there has been any improvement in

meeting the performance objectives of NFPA 1710 in 2014 from what was shown for 2013. The

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City has not even promised the Union that it will keep Medic Unit 3 in service, let alone that it

will do anything very significant to actually improve turnout and response times during the

current calendar year. Apparently a contract was awarded to install 13 more opticoms at

intersections this year to add to the 300 that the City already had. Even with those additions,

however, the City has far more intersections without opticoms than it will have with them. No

more fire stations or equipment will be added this year, and no money is projected to be allocated

to add more fire stations or more equipment clear out through 2020. Training for paramedics

was cut way back for this year, and there has been no commitment to increase it in the future.

That will almost certainly make it even more difficult to meet the performance objectives for

EMS turnout times and travel times going forward. Thus, unless the City is required to do

something above and beyond what it is doing now, there appears to be little reason to think that

the Fire Department’s performance under the standards set by NFPA 1710 will improve

significantly anytime soon. In fact, if nothing changes, it will be very difficult for the Fire

Department to even maintain the level of performance that it was able to achieve last year. And,

without a significant improvement in performance, the City cannot be considered to be in

compliance with the requirements of Article 44 of the CBA.

The Appropriate Remedy

The Union is not asking for immediate compliance with NFPA 1710, but it is asking for

concrete steps to be taken that will move the City toward full compliance within some reasonable

period of time. For now, the City clearly needs to keep Medic Unit 3 in service, and in order to

make any improvement in service, it needs to add at least one more Fire Engine, Fire Truck, or

Medic Unit to service this year, and assign the necessary employees to operate it. The Arbitrator

simply does not have enough information to decide what specific additional equipment would do

the most good, and so will leave that determination to the Fire Department. In addition, the Fire

Department needs to continue to work on the problems it seems to have been having in recording

accurate data with respect to its turnout and travel times, and it also needs to comply with the

annual reporting requirements of NFPA 1710. The Arbitrator agrees with the City that, under

the circumstances, it makes little sense to spend the amount of time and money that it would take

to revise the 2013 annual report of the Fire Department to make it meet all of the requirements of

NFPA 1710. The parties already know enough about 2013 to know that the City did not comply

with the performance objectives of NFPA 1710 for that year, and it would be best if they could

simply focus on moving toward compliance with the performance objectives this year and

getting the 2014 annual report done correctly when it comes due. In order for the Arbitrator to

allow the 2013 annual report to remain uncorrected, however, the City must commit to having

the Fire Department issue a 2014 annual report that meets all of the requirements of NFPA 1710

even if the current CBA expires before that report can be completed.

Beyond the remedy discussed above, the Arbitrator has no control over what happens

after the current CBA expires. Judging from the evidence and arguments presented in this case,

it appears to the Arbitrator that the City will likely back away from its commitment to meet the

performance objectives of NFPA 1710 as soon as it is able to do so. But what it will actually do

obviously remains to be seen.

Page 13 of 13

CONCLUSION

For the reasons set forth in the body of this Award, the Arbitrator concludes that the City

was in violation of Article 44 of the CBA at the time this grievance was filed, and that it

continued to violate Article 44 at least up through the date of the arbitration hearing. As a

remedy for this violation, the Arbitrator hereby orders the City to do the following:

1. Keep Medic Unit 3 in service.

2. Add at least one more Fire Engine, Fire Truck, or Medic Unit to service this calendar

year, and assign the necessary employees to operate it. The Arbitrator leaves it up to the

Fire Department to decide exactly what specific piece of equipment should be added, but

it should be whatever piece would do the most good in terms of moving the City toward

compliance with the NFPA 1710. This additional piece of equipment, or its replacement,

must be kept in service for as long as it is required by the current, or any successor,

collective bargaining agreement, or by any Order issued by the Nebraska Commission of

Industrial Relations.

3. Work diligently to resolve the problems that it seems to have been having in recording

accurate data with respect to its turnout and travel times on each emergency call.

4. Publish an annual report for calendar year 2014 that meets all of the requirements of

NFPA 1710 even if it cannot be completed before the current CBA expires.

Any remedy requested by the Union over and above that ordered above is hereby denied.

The Arbitrator specifically reserves jurisdiction to resolve any dispute that may develop

between the parties concerning the interpretation or application of the remedy ordered above.

DATED this 12th

day of September, 2014. ______________________________

John F. Sass

Arbitrator