April 1998
Volume 12, Number 4

IAFC/IAFF issue 2 in/2 out guide 
as the single most important advance in fire fighter safety in many years. 

The 2-in/2-out rule went into effect April 8, with the states having six months to implement the standard. The IAFC/IAFF publication notes that disagreement exists as to whether the 2-in/2-out rule applies to volunteer fire fighters. OSHA reportedly has stated that volunteer fire companies are unaffected by the rule but the IAFC Volunteer Chief Officer Section supports the concept and believes the rule applies to volunteer departments in the states that align with federal OSHA standards.

A question-answer format is used to explain the rule. Typical questions range from "Why is this standard important to fire fighters?" to "What can be done if a fire fighter does not comply with fire department procedures for two-in/two-out?" 

Complete copies of the IAFC/IAFF document are available free at www.IAFC.org. Copies of the actual language of the OSHA rule may also be accessed from that web site.
The International Association of Fire Chiefs (IAFC) and the International Association of Fire Fighters (IAFF), AFL-CIO, this month released a jointly prepared explanation of the new 2-in/2-out standard for interior structural fire fighting. The document was developed to guide fire service personnel in complying with the regulations issued in January by the federal Occupational Safety and Health Administration (OSHA). Essentially, the 2-in/2-out rule requires that all fire fighters engaged in interior structural fire fighting wear self-contained breathing apparatus and operate under a "buddy system." The regulation applies to all private sector fire brigades and to public employees in the over two dozen states that have OSHA-approved plans or have adopted OSHA standards for public sector workers.

In a show of harmony, the leadership of both IAFC and IAFF had strongly supported the 2-in/2-out rule as a major means to reduce fire fighter injuries and deaths. Union officials hailed the rule

IAFC president touts fire service anti-terrorism role
Terrorism! A job for the FBI? Or the military? Probably. But don't forget the local fire department. At least that is the message International Association of Fire Chiefs (IAFC) president Rich Marinucci carried to Congress last month. Testifying before a House of Representatives subcommittee, Marinucci asserted, "When an act of terrorism occurs, the only organized emergency response organization to immediately deal with the incident and begin mitigation will be the local fire and emergency services departments." Marinucci, the chief of the Farmington Hills, Michigan, Fire Department, told the members of Congress, "The local first responders are unassisted for the most critical hours. The first two or three hours of work by the local fire force will greatly determine the number of lives saved and the eventual outcome of the incident." In addition, "[T]he safety of emergency service providers is at stake and must be an early consideration."

While noting that in 1996 Congress passed legislation designed to help local fire departments respond to terrorist acts, Marinucci alerted the committee to several unresolved issues. The IAFC leader called on federal anti-terrorism agencies to adopt the incident command system that is taught by the National Fire Academy. He also called for expansion of federally supported domestic
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preparedness training beyond the current 120 most populous jurisdictions. Many strategic sites, such as water, power, and communications centers, are located outside of major metropolitan centers, he noted. 

In addition, "[t]here is a clear need for sophisticated [biochemical] detection equipment," Marinucci told the Subcommittee on Military Research and Development. He also requested federal assistance in providing personal protection equipment for individual fire fighters. Also on the safety front, Marinucci asked the officials to consider expanding the military's biological inoculation program to fire and emergency service first responders. The Pentagon earlier announced plans to immunize all soldiers, including some civilian support personnel, against anthrax. 

Coincidentally, the Fire Department of New York announced this month that six engine

Litigation

 companies are being reconstituted to expand the department's capability of assisting a federal strike force to deal with potential terrorist attacks using biological weapons. Fire fighters that volunteer for assignment to the companies will receive 300 hours of special hazardous materials and rescue training. Each of the fire fighters selected will become eligible for a pay bonus of up to $1,500 a year. A spokesman for the city's fire officers' union expressed support for the plan but stated that the union wanted input into the new training.

Expansion of the local fire department's role into the ultra-hazardous field of biochemical incident response is likely to create a myriad of personnel selection, training, compensation, and labor relations issues. Similar issues arose when fire fighters added emergency medical services to their traditional task of fire suppression. Issues that will need to be bargained are yet to be determined.

Supreme Court update

Cases of interest
Last month, the Supreme Court chose not review the matter of Hapgood v. City of Warren, Ohio, No. 97-1069. This case involved a former fire fighter who unsuccessfully sought to pursue a claim under the Americans with Disabilities Act (ADA). Hapwood was terminated for filing a false worker's compensation claim wherein he had asserted that a back injury was job-related. He had previously indicated on a medical insurance claim that the back problem was not work related. Various state court proceedings found that his dismissal was justified. The former fire fighter later sought to pursue an ADA claim through the federal court system. The federal courts ruled that collateral estoppel, the legal principle that prohibits re-litigation of previously adjudicated cases, controlled the matter and it was too late to assert the ADA claim because the state court had already rendered a final judgment on the same facts. The Supreme Court's inaction leaves that determination in place. 

Freedom of association
The rank and file members of the fire department were represented by the fire fighters' union, which had a bargaining contract with the city. The command staff were not members of the union but had their own organization, the Chief Officers Association. The Chief Officers Association did not bargain but did benefit from contract provisions negotiated by the fire fighters' union. In 1993, assistant chief dispatchers became eligible to join the Chief Officers Association. Balton and Barnes were assistant chief dispatchers. They joined the Chief Officers Association because they believed that being members would assist them in obtaining pay increases and other benefits. Subsequently, they learned that the city paid assistant chief dispatchers as well as other comparable cities. Thus, the association was apparently not aggressively going to push for pay increases for Balton and Barnes.
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Their interest in the association declined and they became delinquent in paying their dues. Over the course of several months, the deputy fire chief talked to the two about paying their dues. At each meeting neither indicated a desire to drop out of the association although that apparently was the intention. Both Balton and Barnes continued to assure the deputy chief that they would pay the dues. After four months, however, the two assistant chief dispatchers notified their superior that they were dropping out the Chief Officers Association. Shortly thereafter, the deputy chief prepared a performance evaluation on the two individuals. He marked them "below average" on the question of "Professional Qualities," citing as his justification their refusal to pay the dues. Performance evaluations were not used by the department to determine promotion, pay increases, discipline, or discharge. But Balton and Barnes considered the negative assessments as serious marks on their records. They filed suit claiming that the below average performance evaluation had been made in violation of their First Amendment right not to "associate" with the association. Trial court granted the city's motion for summary judgment and the two assistant chief dispatchers appeal.

HELD: The trial court granted summary judgment for the city after employing a Pickering public concern analysis of the case. The Pickering balancing test, so useful in resolving employee free speech cases, is not easily transferable to cases involving freedom of association. That is because some associational choices are purely private matters. The various federal circuits are split on the appropriate tests to follow in freedom of association cases. The Court of Appeals for the 7th Circuit employs the Pickering test, although it may not be appropriate to use in all cases. In this case, Balton and Barnes' disillusionment had nothing to do with matters of public concern. Their disillusionment had everything to do with the organization's shortcoming on issues of purely individual economic importance, their salaries. The two assistant chief dispatchers drew the ire of their superior because

 they chose not to associate with the organization. Rather, they got on his wrong side because he concluded that they had failed to live up to the obligations to the association, a group that a short time earlier they were so anxious to join. The deputy chief concluded that this was unprofessional because they had voluntarily joined the group. It was the fact of non-payment of dues that the deputy chief found improper. The "below average" ratings on "Professional Qualities" were not an infringement of associational or non-associational rights of the fire department employees. Affirmed for city. [Balton v. City of Milwaukee, Wisconsin, 133 F.3d 1036 (7th Cir. 1998)] 

Freedom of association
The constitution of the fire fighters' union prohibited members from joining rival organizations, including volunteer fire companies. A breach of this provision could lead to expulsion from the union. The collective bargaining agreement between the fire fighters' union and the City of Fort Wayne, Indiana, provided that members of the fire department were not restricted in off duty employment, except they could not work for a volunteer fire department within the county. Seven fire fighters brought suit against the union and city, alleging that the bargaining contract and the union constitution effectively barred them from participating in volunteer fire fighter service and from verbally advocating such service. Trial court determined that the fire fighters failed to establish that their First Amendment rights of free speech and free association touched upon matters of public concern and dismissed the case. The fire fighters appeal. 

HELD: The union asserts that is not a state actor and, therefore, it cannot be held liable for a violation of the First Amendment. As a general principle of law, a union is not subject to U.S. Constitutional constraints. Thus, internal union rules are not subject to First Amendment prohibitions. The union could be liable if a conspiracy between the union and the governmental
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employer were established. However, in this case no evidence of such a conspiracy exits. The mere fact that union rules reinforce the collective bargaining agreement is insufficient to bring the union under the rubric of "state action." As to the fire fighters' claim that their right of free association is violated by the city under the bargaining contract, prior case law dictates a three-step test be used. First, the court must determine if the activity would be protected by the First Amendment if engaged in by a private citizen. Second, the court looks to see if the matter is one of public concern or private concern. If the activity in question is protected conduct and a matter of public concern, then the court considers whether the interest of the public employer in suppressing the activity outweighs those of the employee and the public. In this case, the record contains evidence supporting the fire fighters' claim that they associate with volunteer fire departments to support and advocate the political, social, and economic goal of preventing the city's annexation of the surrounding community. It would be unconstitutional for the city to suppress the association rights intended to express these beliefs by private citizens. Therefore, the fire fighters have satisfied the first step of the test. Likewise, association for these purposes touches on matters of public concern. The second step is satisfied. When considering the balancing question, however, the city must prevail. The city has an interest in promoting efficiency in the fire department's service delivery through reduction in off duty injuries, avoidance of conflicts between fire fighters' duties to the city and their duties to other fire fighting organizations, and improvement of morale by minimizing dissension among the fire fighters. Additionally, the city has an interest in limiting its potential financial liability for paid sick leave due to injuries incurred while the fire fighters engage in off duty activities. Reduction of off duty injuries, avoiding conflicts between fire fighters, and minimizing liability tips the scales in favor of the city. Affirmed for city. [Messman v. Helmke, 133 F.3d 1042 (7th Cir. 1998)] 

Handicap discrimination
During the course of his employment as a fire fighter, Herman sustained a back injury. He sought medical treatment from his family physician. Doctor prescribed a prescription pain medication. Herman violated department rules by never informing his superiors that he was taking the prescription medication. Subsequently, Herman altered the prescription for the medication, changing the amount of pills prescribed from 6 to16. He faced criminal charges over the matter. The charges were dismissed when he was placed in a rehabilitation program. As a result of the criminal charges, Herman was terminated as a fire fighter. He sought professional help for his drug dependency. The drug counselor certified that he did not present any indication of dependency on drugs. The union grieved the termination and an agreed settlement was reached with the city. The settlement provided that Herman would be reinstated as a fire fighter, subject to random drug tests for three years, and would have to be cleared by a physician before returning to work. Pursuant to the agreement Herman took a drug test. Prior to administration of the examination, he disclosed that he had been taking cough medicine with codeine that had been lawfully prescribed by his doctor. Not surprisingly, the drug test results were positive for codeine. Upon learning of the positive test, the fire chief had a change of heart with regard to the reinstatement. Both he and the personnel director perceived that Herman was "dirty again." Herman was re-evaluated by the drug counselor who once again cleared him to return to work. Not satisfied with this determination, city personnel director referred Herman to another doctor. This doctor likewise cleared Herman to return to work as a fire fighter. Subsequently, the city personnel director erroneously told the physician that Herman had taken and failed a second drug test. Based upon the erroneous information the physician changed his recommendation and suggested Herman enter a drug treatment program. Herman advised the city that he could not afford
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the program and sought an alternative treatment program. The city refused to allow him to participate in an equivalent program and refused to reinstate him to his position as a fire fighter. Herman filed suit against the city alleging a violation of the Americans with Disabilities Act (ADA). 

HELD: The plaintiff presented a prima facie case of discrimination under the ADA by demonstrating that he has a "disability," he is qualified for the position, in that he can perform the work with reasonable accommodations, and he has suffered an adverse employment decision as a results of discrimination. In this case, the city had every reason to discharge Herman. He failed to disclose to his supervisor that he was taking a prescription drug. He had been arrested for forging the prescription to illegally obtain more drugs. But, the action that is the subject of his ADA claim is not the initial firing of Herman but the city's discrimination against him in its failure to rehire him as a fire fighter. The city intentionally discriminated against Herman by agreeing to rehire him under certain conditions and then added the requirement that he participate in an expensive drug treatment program, which the city knew he could not afford, when a perfectly acceptable alternative program existed. Herman was qualified for the position of fire fighter and he can perform the work with reasonable accommodations. He previously served satisfactorily as a fire fighter. His disability in this case is the erroneous belief that he was engaging in illegal drug use. The ADA specifically lists such an erroneous perception as a "disability." The city has created a predicament. It was not required to rehire Herman in the first place. Once it agreed to rehire him, the city could not discriminate against him in the rehiring process. While the ruling might discourage the city from giving its employees a second chance in the future, the ADA does not make exceptions for those employers trying to offer their employees a second chance. Reinstatement and back pay awarded to former fire fighter. [Herman v. City of Allentown, Pennsylvania, 985 F. Supp. 569 (E.D. Pa. 1997)]

Compensation
When the city and the fire fighters' union reached impasse in contract negotiations, the matter went to the Nebraska State Commission of Industrial Relations. The commission issued an award and the city appealed on several grounds. Specifically, the city objected to a variety of rulings, including the selection of comparable cities, the alleged failure to account for fringe benefits, and the manner in which health benefits were compared. 

HELD: Nebraska statute requires the commission establish rates of pay that are comparable to the prevalent wage rates paid under the same or similar working conditions. This is accomplished through the examination of pay and benefits of comparable cities. The union suggested five cities be included in the comparison while the city proposed three others. Both sides agreed on two specific cities as comparables. The commission selected three of the four cities proposed by the union and two of the three cities suggested the city. In making its selections, the commission focused on the departments' fire fighting and emergency medical duties and discounted the question of providing hazardous materials control. The city cites several reasons why certain comparable communities were an improper choice. As a general rule, it may be said that the factors most often used to determine comparability are geographic proximity, the population, job descriptions, job skills, and job conditions. In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make a comparison appropriate. The commission's determination in this regard is a factual one. It can place greater reliance on one factor in one case and less reliance on it in another. Determination of comparables requires the granting of some discretion to the commission and there is no evidence in this case that it abused that discretion. The city also objects to the commission
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treating as moot certain fringe benefits such as sick leave, vacation accumulation rates, and life insurance coverage. Under Nebraska law, in establishing wages the commission is required to take into consideration the overall compensation, including fringe benefits. It is impractical, however, to deal with retroactive changes to fringe benefits for an expired contract year. It is also impractical to assign a monetary value to such fringe benefits. Under the circumstances, it cannot be said that ignoring the fringe benefits when the contract year in dispute is over constituted an arbitrary act by the commission. As to comparison of health insurance benefits, the city wished to compare employer costs while the union wanted to compare employee benefits. The commission chose to compare benefits and, once again, it cannot be said that such a determination was arbitrary or unreasonable. Decisions of Commission on Industrial Relations affirmed. [Lincoln Firefighters Association v. City of Lincoln, 572 N.W.2d 369 (Neb. 1998)] HELD: The town argues that the volunteer fire fighters are casual employees who work so sporadically that the commission erred in extending to them collective bargaining rights. The state statute creating the commission set a broad legislative policy that is left to the agency to interpret. Courts grant such agency interpretations much deference. To determine whether a group of employees is casual, the commission examines four major factors affecting the stability of the proposed bargaining relationship: continuity of employment, regularity of work, the relationship of the work performed to the needs of the employer, and the amount of work performed by the employees. In this case, the commission found that because the town had no full-time fire fighters, there is a stable demand for volunteer fire fighters. By reason of the continuity of demand and the relative continuity of service of the fire fighters, the commission thought that the relationship of the work performed to the needs of the employer and the amount of work performed by the employees leaned in favor of granting them bargaining rights. This determination was rational and founded upon precedent in similar disputes previously acted on by the commission. Volunteer fire fighters have previously been permitted to bargain in Massachusetts. In contrast, when a department consisted of both paid and volunteer fire fighters, only the paid personnel were granted bargaining rights. The labor commission decision granting bargaining rights to the union of volunteer fire fighters is affirmed. [Town of Wenham v. Massachusetts Labor Relations Commission, 689 N.E.2d 840 (Mass. App. Ct. 1998)]

Right to bargain
The town employed no full-time fire fighters. Rather it used 31 volunteer fire fighters. The department was managed by a board of fire engineers appointed by the town council. Fire fighters received their appointments annually from the board. There were no strength, conditioning, age, or residency requirements for service as fire fighter. Response to alarms was purely voluntary and the fire fighters need not respond to a specified percentage of calls in a year. However, every volunteer fire fighter was required to attend a departmental drill once a month. The town paid the fire fighters on an hourly basis and each earned an average of $5,000 to $6,000 yearly. A group of the fire fighters organized a union and sought certification from the state labor board as the bargaining unit for the volunteers. The Massachusetts Labor Relations Commission certified the union but the town refused to bargain. Town appeals commission ruling. 

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