March 1999
Volume 13, Number 3

President addresses fire fighter meeting
History was made on March 15, 1999, when Bill Clinton became the first U.S. President to personally address a meeting of the International Association of Fire Fighters, AFL-CIO (IAFF). President Clinton appeared at the 17th Annual IAFF Legislative Conference at the Hyatt Regency Hotel in Washington, D.C. 

In his speech to a standing room only crowd of about 700 union members, the President emphasized the fire service's role in combating terrorism and called the nation's fire fighters the "frontline defenders of our citizens - not just from accidents and arsonists, but from those who would seek to sow terror, and so undermine our way of life." Clinton noted that in most instances of domestic terror, the first professionals on the scene will be fire fighters. 

The President outlined for the delegates four antiterrorism initiatives that will involve the fire service. First, he announced that later this year the Department of Justice (DOJ) will provide $69.5 million in grants to the states and large cities to buy equipment for handling chemical and biological incidents. Second, DOJ and the Federal Emergency Management Administration (FEMA) will spend nearly $80 million in training efforts for fire fighters and emergency medical service personnel. Third, the Department of Heath and Human Services will fund 12 more specially trained and equipped medical response teams, including one for Salt Lake City, the site of the 2002 Olympic Games. These teams will join 27 existing units that can be deployed in case of a chemical or biological attack. Finally, the President stated that later in the year the Defense Department will create several advisory panels regarding weapons of mass destruction. Three of the panels will consist of fire fighters.

 In other comments, Clinton reiterated his support of collective bargaining for fire service personnel. He noted that the nation's first fire company, Benjamin Franklin's Union Fire Company, was not a union shop. "And in those days different companies would actually show up at a fire, and then they would fight over who would put it out, because you actually got paid if you put the fire out. Meanwhile, the building would burn down. Kind of the way Washington works today," the President quipped.

The President recalled that as a child he loved to go to the local fire station and slide down the pole and play on the truck. In an oblique reference to his recent personal and political troubles, he observed, "I never became a fire fighter, but I believe I've learned about as much as you about putting out fires in the last year."

President Clinton closed his 20-minute speech by quoting a letter Harry Truman wrote in 1952 to then-IAFF president John Redmond. "Your members are at their post day and night, ready to accept the call of duty, to protect the lives and property of their fellow citizens. They do so at risk of life and limb. For their devotion and heroism, they deserve the praise of all Americans." 

Delegates to the three-day conference also heard current IAFF president Alfred Whitehead reiterate that a national collective bargaining law remains a major priority of the IAFF. In addition, other speakers called for the strengthening of Social Security and establishment of a $5 billion federal grant program to hire more fire fighters and improve fire fighter training. 

Attendees also spent time visiting with members of Congress to raise awareness of fire fighter labor and safety issues.
March 1999
Volume 13, Number 3

State bargaining proposals gain mixed results
State legislators have sent mixed signals to public employees on the right to collectively bargain. The New Mexico Senate last month voted to renew its public sector bargaining law but in Missouri lawmakers buried the proposal. Virginia lawmakers have approved the right of employee groups to meet and confer with public employers. Meanwhile, Texas legislators have yet to act on such a bill.

In New Mexico, state legislators voted to continue public sector bargaining. The current law is due to expire July 1. Public sector unions had agreed to a sunset provision to win approval of the original law in 1992. The new legislation would extend the life of the Public Employee Relations Board to July 1, 2006. Supporters of the extension grafted the proposal onto two different bills in an effort to avoid a gubernatorial veto. Republican Governor Gary Johnson has publicly vowed to veto the bill even though one version is included in a charter school bill that the Governor supports. It is unknown whether enough votes exist to override a gubernatorial veto.

An estimated 150 public employee labor contracts, including fire fighter and police officer pacts, are in force in New Mexico. If the bargaining statute is not renewed, the state would revert to permissive bargaining whereby a public employer could, but would not be required by law to, bargain with employee groups. The current statute bans strikes and other work stoppage. If the law lapses,

 such job actions would no longer be unlawful in New Mexico.

The news in Missouri was less encouraging for public sector labor groups. By a vote of 73 to 88 the Missouri House of Representatives effectively killed a bill that would have given fire fighters, police officers, and other public workers bargaining rights on salaries and working conditions. Similar legislation has been rejected over the last 20 years but backers thought this year's effort had a chance of success. Governor Mel Carnahan supported the proposal along with a variety of labor organizations. The Missouri Municipal League and most Republican members of the legislature opposed the measure. 

The Virginia General Assembly has modified state statute to permit public employee associations to discuss their interests with their employing agency whenever the agency agrees. The bill has been forwarded to Republican Governor Jim Gilmore for approval or veto. While authorizing limited meet and confer power, the bill does not repeal the Virginia prohibition of public sector bargaining contracts.

In Texas, a general public safety bargaining bill has not been introduced in this session of the legislature. However, an alteration of the current law that generally prohibits public sector bargaining without voter approval has been introduced. This bill, if passed, would allow permissive bargaining. Prospects of passage are unknown at this time. 

Congressional panel considers FLSA change
The Subcommittee on Workforce Protections of the U.S. House of Representatives last month heard testimony about a thorny overtime issue: whether to amend the Fair Labor Standards Act (FLSA) to permit professional fire fighters to volunteer their services. Currently, the FLSA prohibits an employee from volunteering to perform his or her normal duties for the same employer without pay. In fire service the law has also discouraged paid fire fighters from working for volunteer companies in their community. 

At the hearing, Frederick Nesbitt, representing the International Association of Fire Fighters, AFL-CIO (IAFF), stated that the union opposed alteration of the law. The IAFF fears that if the ban is lifted, fire fighters could be coerced into "volunteering" to work extra shifts. But one member of Congress, Herbert Bateman (R._VA)
March 1999
Volume 13, Number 3
testified that his legislation would specifically prohibit coercion, would mandate a written waiver, and would require the fire fighter not serve at the same station where normally employed.

According to Cass Ballenger (R.-NC), the subcommittee chair, some communities have difficulty staffing their volunteer fire companies because paid fire fighters have been told they are

 legally barred from serving. The confusion is particularly acute in communities where volunteer and paid companies receive funds from the same taxing entity. 

Legislation permitting paid fire fighters to volunteer to work has been introduced in previous sessions of Congress but has never reached a floor vote. 

California leads nation in fire fighters
More fire fighters are employed in California than in any other state, according to data released recently by the Bureau of the Census. State and local entities in California employ 27,162 full-time paid fire fighters. Another 3,000 persons are employed on a part-time basis. The data was compiled as part of the Bureau's periodic Census of Government. 

A total of 256,374 full-time fire fighters are employed nationwide. Another 73,000 are

 employed on a part-time basis. Governmental units employ a total of 355,938 individuals in fire protection services, about half the number employed in corrections and about 58 percent of the total personnel working in police protection.

Trailing California is New York with 21,446 full-time fire fighters and Texas with 17,228 full-time fire fighters. Governmental entities in Florida employ 16,679 full-time fire fighters while Illinois has 14,166.
Litigation

Supreme Court update
Justices last month declined to consider Seaborn v. Florida Department of Corrections, No. 98-998. The court refused to overturn a decision that pseudo folliculitis barbae, a skin condition suffered by some African-Americans that produces lesions when shaving, does not qualify as a disability under the Americans with Disabilities Act. Thus, the employer could lawfully deny promotions because of non-compliance with its facial hair policy. bin prior to his arrival. Zimmerman was not told of the presence of the gas. Upon arrival at the scene, Zimmerman climbed the ladders on the outside of the grain bin to reach the only entrance to the interior of the bin. He then descended into the grain bin using the ladder fixed to the inner wall. After entering the bin he became lethargic and physically unable to climb the ladder to exit. By this time, other fire fighters had arrived and attempted to hoist Zimmerman out without success. He was overcome by the carbon monoxide gas and died of asphyxia. Zimmerman's son filed a wrongful death suit against the mill alleging negligence. Trial court dismissed the case on the basis of the Fireman's Rule. Deceased fire fighter's estate appeals.

HELD: The Fireman's Rule essentially provides that an owner or occupier of land must exercise reasonable care to prevent injury to a fire

Cases of interest

Fireman's rule
Zimmerman was a volunteer fire fighter. He responded to a call of a man down in a grain bin. In fact, two men were trapped inside the grain bin. Unknown to Zimmerman, the mill had introduced five million cubic feet of carbon monoxide into the
March 1999
Volume 13, Number 3
fighter that might result from a cause independent of the fire, but has no duty to prevent injury resulting from the fire itself. The rule derives from the traditional common law rules of landowner/occupier liability. Although this case does not involve a fire, the Fireman's Rule may be applicable because the rule is also construed in the context of the duty that a landowner owes to an emergency worker. Prior case law in Illinois has held that despite the Fireman's Rule, the owner of a building has a duty to use reasonable care in the maintenance of his property for the protection of fire fighters who are upon the premises fighting a fire. A fire fighter does not assume the risk of injury by causes unrelated to the fire. The Fireman's Rule bars recovery from the mill for negligently causing the incident as well as any negligence the mill had in causing the high carbon monoxide levels. However, the Fireman's Rule does impose a duty on a landowner to warn against latent dangerous conditions constituting an unreasonable risk of harm that the owner should expect that the fire fighter will not discover. Here the deadly level of carbon monoxide, a very toxic, colorless and odorless gas was a latent unreasonable risk. The mill owner should have warned Zimmerman of this latent danger. The fire fighter was unable to discern the immediate threat in the grain bin. Thus, public policy dictates that if the defendants knew, or should have known, of this unforeseen danger, they are liable for failing to warn a fire fighter of this invisible risk. Likewise, the mill apparently violated various federal, state and local safety regulations that would have helped ensure Zimmerman's safe removal from the grain bin. A mechanical device to retrieve personnel should have been provided. The company's failure to provide this item of safety equipment, coupled with flagrant violations of safety regulations, created a separate dangerous condition for Zimmerman, independent of the level of carbon monoxide in the bin, thereby removing the case from the parameters of the Fireman's Rule. Reversed for fire fighter's estate. [Zimmerman v. Fasco Mills Company, 704 N.E.2d 949 (Ill. App. 2 Dist. 1998)]

Fireman's rule
Roberts was a part-time volunteer fire fighter and emergency medical technician. Although the town provided him with protective gear and some training, he received no pay, pension, or medical benefits for his efforts. One day Roberts responded to the scene of an accident involving a collision between a truck and an automobile. The driver of the automobile was pinned beneath the dashboard. As Roberts was attempting to extract the driver from the wreckage, she kicked her legs and knocked Roberts to the pavement, causing injuries. The injuries resulted in a permanent disability and he was unable to return to his regular work as a forklift driver at a chemical plant. Roberts filed suit against the motorist for negligence. Trial court dismissed the suit, ruling that the Michigan Fireman's Rule applied to volunteer as well as paid fire fighters. Former volunteer fire fighter appeals.

HELD: In 1987, Michigan, by judicial decision, adopted the Fireman's Rule. The rule generally bars fire fighters and police officers from recovering for injuries sustained as a result of the negligence that gave rise to their emergency duties. The reason for adoption of the Fireman's Rule is that public safety personnel are already compensated to perform the dangerous work of their profession. Presumably, their compensation is calculated with consideration of the risks they face. The Fireman's Rule developed from the notion that taxpayers employed fire fighters and police officers in part to deal with future damages that may result from the taxpayer's own negligence. Because of the unique relationship between the public and public safety officers and those third parties who require the services of the officer, the duty of care towards the public safety officer is replaced by the third party's contribution to tax supported compensation for those services. When injuries occur, for example, fairly liberal compensation is provided to the officers. This relationship, however, is clearly missing between the public and an uncompensated volunteer fire fighter. Volunteers are not similarly compensated
March 1999
Volume 13, Number 3

Promotion procedures
for their efforts as are paid fire fighters. Although public policy warrants application of the Fireman's Rule to professional fire fighters and police officers, the same policy argument does not dictate that volunteers be precluded from suing for their injuries. Reversed and remanded for injured volunteer fire fighter. [Roberts v. Vaughn, 587 N.W.2d 249 (Mich. 1998)]
During the 1980's the city's fire chief was reducing the size of the department. One of the methods used was to leave a vacant position unfilled until an eligibility list expired, then determine whether to abolish the position or authorize a new promotion examination. As a result of this practice, and because the testing department itself was reduced in personnel, testing was delayed indefinitely for some positions. A number of positions went unfilled for years. Five fire fighters filed grievances with the civil service commission over the matter, but the grievances were denied. Ultimately, the fire fighters' union notified the civil service commission that the union was filing a grievance on behalf of another 40 fire fighters. The civil service commission offered no relief and the union appealed. Trial court awarded retroactive promotions and back pay to 30 of the fire fighters. City appeals.

HELD: The city challenges the authority of the union to file a group grievance. Specifically, the city argues that since the city ordinance does not explicitly grant the right to a group grievance, one cannot be lodged. Prior Texas case law holds, however, that public employees may present grievances individually or as a group. Thus, that claim of the city must be rejected. The city further argues that it should not be liable for retroactive back pay as such was not authorized by state law until after the dispute in question arose. Once again, prior case law holds that when a city does not fill a vacant position in accordance with the civil service law, fire fighters who properly should have obtained such jobs are entitled to retroactive promotion and back pay. Since the city was required to fill a vacancy within 90 days of the vacancy's occurrence, the fire fighters who were eligible to take the promotion exam are entitled to retroactive back pay from the 90th day after each vacancy was left unfilled. Affirmed for fire fighters. [Firefighters' and Police Officers' Civil Service Commission of Houston v. Herrera, 981 S.W.2d 728 (Tex. App. _ Houston [1st Dist.] 1998)]

Worker's compensation
Wheaton was a fire fighter who contracted Hepatitis C. He filed a worker's compensation claim asserting he contracted the disease while moving an injured individual who had the disease. The city denied that Wheaton had sustained an "accidental injury" or suffered an "occupational disease" arising out of and in the course of his employment. On judicial review, the court rejected the fire fighter's claim as non-compensable. The court ruled that hepatitis is an accidental injury that occurs through specific exposure to the virus and not a gradual exposure over a period of time. Fire fighter appeals.

HELD: Trial court correctly concluded that under Oklahoma worker's compensation law Hepatitis C is not a cumulative trauma injury or an occupational disease. A cumulative trauma injury is a result of repeated micro-traumas over a long period of time. An occupational disease must gradually develop and must result from a condition that is characteristic or peculiar to the particular employment. There is no evidence that Hepatitis C resulted from the condition which was characteristic or peculiar to fire fighters. Since the fire fighter could have contracted the disease from one of several exposures, it is possible that Wheaton would not know which of several exposures resulted in his infection. Trial court did not rule on whether Wheaton's claim could be considered an "accidental injury" under Oklahoma law. Reversed for consideration as to whether contraction of Hepatitis C is an accidental injury eligible for worker's compensation benefits. Reversed for fire fighter. [Wheaton v. City of Tulsa Fire Department, 970 P.2d 184 (Okla. Civ. App. Div. 1 1998)]
March 1999
Volume 13, Number 3
Settlements a maximum of 3.5 percent, depending upon the Consumer Price Index. The proposed pact, which still needs ratification by union members and the city council, would run through April 30, 2002.

Council Bluffs, Iowa

fire fighters

Long Beach, California

fire fighters
A new labor contract between the City of Council Bluffs and the local fire fighters' union will provide higher wages for veteran personnel. Under the new two-year pact fire fighters will receive a 2 percent raise the first year and a 3 percent hike the next year. However, six-year veterans, the top of the pay scale, will see increases of 5.7 percent and 4.8 percent in the two years of the contract. On July 1, fire fighter wage will jump to $28,429. Fire fighters at top of the pay scale will earn $35,563. Local 15 of the International Association of Fire Fighters, AFL-CIO, is the bargaining agent. 
The close of 1998 saw a three-year memorandum of understanding inked between the City of Long Beach and its fire fighters' union. The agreement is retroactive to November 1, 1998. Members of both the basic and supervisory units of the union, fire fighters through battalion chiefs, received a 4 percent retroactive pay hike. Another 5 percent boost will be forthcoming on October 1, followed by a 2 percent jump on October 1, 2000. A final 3 percent will be paid to all unit members on April 1, 2001. A starting fire fighter now receives an annual base salary of $40,568, while a veteran fire fighter earns a base of $50,237 at the maximum pay step. Beginning base pay for a fire captain is $59,919 with a top step of $74,481. A battalion chief's base salary now starts at $70,042 and reaches a maximum of $86,468. Personnel are represented by the Long Beach Firefighters Association, Local 372 of the International Association of Fire Fighters, AFL-CIO.

Jackson, Mississippi

fire fighters
Mayor Harvey Johnson, Jr., of Jackson, Mississippi, recently announced a plan that would place fire fighters' salaries among the highest in the southeastern region. The new minimum salary for a fire fighter will climb to $25,680, compared to the current $21,642. A five-step plan went into effect last fall to bring all city workers up to the southeastern median. 

Nashville - Davidson, Tennessee

fire fighters

Kansas City, Kansas

fire fighters
A pay raise is forthcoming for fire fighters in Tennessee's capital city. A 3 percent hike will be awarded July 1, 1999. Under the labor agreement between the city and the Nashville Firefighters and Fire Service Employees Association, Local 763 of the International Association of Fire Fighters, AFL-CIO, wages are set each budget year. Starting pay for a full service fire fighter will go to $27,085 annually. A fire fighter III with ten years experience will draw $42,980. Fire captains will earn between $36,489 and $47,325 depending on years of experience. District chiefs' pay will range between $40,090 and $51,992, depending on years of service.
Local 42 of the International Association of Fire Fighters, AFL-CIO, and Kansas City officials have reached a tentative accord that closely resembles recommendations made earlier by an employee task force. Under the agreement the city would establish a step system of salary grades in November. Each employee would be placed on the step equal to or above his or her current wage. Employees receiving satisfactory evaluations would receive a one-step increase of 4 percent. Wage increases in the second and third years of the agreement would be a minimum of 1.25 percent and