April 1999
Volume 13, Number 4

Sickout hits New Orleans Fire Department
Three-quarters of New Orleans' fire fighters called in sick on the April 13 afternoon shift. Fire department officials held over the morning shift on overtime to make up for the 120 fire fighters who failed to report for work. The job action was in apparent support of fire fighter demands that the city hire 70 more fire suppression personnel with part of a $5 million municipal budget surplus.

Fire Chief Warren McDaniels said the city was adequately protected with the holdover personnel. The chief stated he was also angry because the sickout came one day after 50 off-duty fire fighters had picketed a national fire chief's convention at a local hotel, claiming the department was understaffed and the Crescent City underprotected. "I think it's really hypocritical of folks to picket claiming that the city is underprotected and the very next day have over 75 percent of people scheduled to work not report to work," McDaniels said. 

Officials of the New Orleans Fire Fighters Association, Local 632 of the International Association of Fire Fighters, AFL-CIO, said the union did not endorse the sickout but understood it and supported the fire fighters. Union attorney Louis Robein stated, "There are some smoldering issues.

 Some serious breach of contract claims have been on the table for over two years and should have been resolved a long time ago." Robein claimed the city has refused to honor a contract clause that would decrease by two hours the amount of time a fire fighter needs to work before collecting overtime.

City officials announced the fire fighters' absence would be treated as leave without pay. Because unsubstantiated sick days are granted only once every 90 days, continuation of the sickout was not viewed as likely.

The Black Association of New Orleans Fire Fighters joined the city in criticizing the sickout. Joseph Matthews, a fire captain and president of the black fire fighters' group, said a group must use "legal, legitimate tools to get what they want." 

New Orleans Mayor Marc Morial vowed not to listen to the fire fighters' complaints until union officials condemn the sickout and apologize to the fire chief.

Fire and police department staffing was frozen after city voters rejected a property fee to balance the budget. The fire chief recently eliminated eight engine companies to save money. The department employs 750 fire fighters, down from 820 a year ago.

Fire fighter rates 216th in best jobs ranking
Working as a waiter, a file clerk, or a janitor is preferable to being employed as a fire fighter, at least that is the opinion of one man _ Les Krantz, author of the updated Jobs Rated Almanac. In fact, Krantz ranks fire fighters 216th out of the 250 occupations he considered in his recently released book. Emergency medical technician ranked 184th. Police officers rated a 197th listing. Krantz compiled the rankings based upon several variables including income, stress, physical demands, potential growth, job security, and work environment. He drew data from the census, Department of Labor Statistics, professional organizations, and telephone surveys. The job of fire fighter rated near the bottom of every category except pay and job security, placing in the upper 25
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percent in those categories.

Overall, the best job, according to Krantz, is that of web site manager. The worst job? Oil field laborer. Fire fighter was sandwiched in the rankings between plasterer and automobile mechanic. Fire fighter was rated 216th overall, largely because Krantz placed the profession next to the worst in the stress and physical demands categories. Fire fighters were rated 249th in physical demands trailing only NFL football players! However, NFL players were listed third in pay while fire fighters garnered a 127th place in this category. 

If there is good news about occupying the

 216th slot, it is that being President of the United States is rated 13 positions lower! President was rated as the job with the highest stress, the worst working environment, and the longest workweek. Fire fighters rated just behind the President in workweek length. 

Other unusual rankings include major league baseball player at 202 and NBA basketball player at 205. The low ratings for these occupations were due largely to lack of job security. 

The Jobs Rated Almanac is published by St. Martin's Griffin and is available at most bookstores and through on-line booksellers.

Texas cities reviewing volunteer company relations
The death of two Fort Worth fire fighters in February is causing Texas cities to reassess their fire departments' relationships with suburban and rural volunteer departments. Brian Collins, a 14-year veteran of the Fort Worth Fire Department (FWFD), and Phillip Dean, a six-year FWFD veteran, died, along with a volunteer, Gary Sanders, when the roof of a church collapsed during a three-alarm blaze. However, Collins and Dean were serving as volunteers with a suburban department when killed. The Fort Worth pension board subsequently declined to award the deceased fire fighter's families full death benefits.

Paid fire fighters serving as volunteers for rural companies is a common practice in Texas. However, as many as 1,000 of the 1,500 volunteer companies in the state are believed to provide no disability or pension coverage. Thus, when a paid fire fighter is injured or killed while serving as a volunteer, the pension funds of his regular employer are affected. Purchase of life and disability insurance would likely be cost-prohibitive for many volunteer companies who rely primarily on public donations for revenue. 

"If suburban communities don't come forward and help with these costs, I don't think there is any doubt that Fort Worth will move to tighten

 our policies," Fort Worth Mayor Kenneth Barr said. "We are trying to avoid taking such action, but it is unfair to the taxpayers to expect them to bear these costs."

The issue has caught the attention of city and fire officials statewide. Although most cities appear reluctant to ban fire fighters from working as volunteers, there is growing concern that the major cities are being unfairly asked to subsidize suburban and rural communities that do not provide their own fire protection. Texas is believed to rely on volunteer fire fighters to a greater extent than any other state. 

Although fire chiefs across the state say they appreciate the volunteer efforts, the practice is a nightmare from a management and liability standpoint. "It's still this huge bowl of Jell-O, and we're trying to get our grasp on it," observed an official in one city.

The survivors of the Fort Worth fire fighters will receive life insurance from their employer and workers compensation and death benefits from the community where they served as volunteers. An additional $50,000 from the state and $143,000 from the federal government will be paid from funds allocated to public safety officers who are killed in the line of duty. 
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Volume 13, Number 4

Study says cancer risk higher in fire fighters
A Michigan panel of scientists says that fire fighters run abnormally high risks for multiple cancers that are tied to burning plastics, chemicals, and even fire apparatus fumes. The Michigan Environmental Science Board is completing a report that could change the way workers' compensation claims are decided in that state. The study is being conducted with advice from the National Cancer Institute and Johns Hopkins University. 

Researchers believe that fire fighter exposures in the field and in the firehouse are direct sources of cancers of the brain, blood, bladder, skin, lungs, and kidneys. Ralph Kummler, Ph.D., a chemical engineer and member of the board, told the Detroit News last month, "At this point, we are fairly well convinced there is an increased cancer incidence for fire fighters." 

Cancer inquiries by the board, whose members were appointed by Governor John Engler, point away from theories of local cancer clusters and toward growing scientific confidence in studies tying cancer to the work place.

The goal of the scientists is to settle questions about possible causes of specific cancers.

 Complicating the task is calculating doses for individual fire fighters and the combined effects of chemicals. 

An accurate gauge of the incidence of cancer could aid in settling worker's compensation claims and possibly lead to enactment of line of duty presumption laws similar to so-called heart-lung statutes that assume job-relatedness if a fire fighter suffers cardiac or respiratory problems.

According to testimony heard by the panel, most exposures occur during active fires. However, another path of exposure is diesel exhaust from fire apparatus. The exhaust is a known cause of lung cancer. While fire fighters commonly wear breathing apparatus at the fire scene, such devices are not worn at the fire station.

The board's preliminary report noted that the efficacy of the level of protection provided by respiratory gear and protective clothing is unknown in the real world. Protective clothing might actually transport carcinogens back to the firehouse.

A cancer presumption bill has been introduced in the Michigan legislature. Wisconsin passed a similar law last year.

Dramatic rescue nets Atlanta fire fighters a raise
The loudest cheers at a ceremony this month honoring Atlanta fire fighter Matt Mosely came from his fellow fire fighters, and not just because of his breathtaking rescue of a construction worker trapped high above a fire. Rather, Mosely's bravery, which garnered nationwide media attention, prompted the city's mayor to promise fire fighters a $2,000 pay bonus and new breathing gear.

Fire fighters and Mayor Bill Campbell have been engaged in a longstanding feud. But, after Mosely dangled from a helicopter to rescue Ivers Sims from atop a construction crane as a fire ranged below, the mayor agreed to sit down with union leaders. Mosely told Campbell of his fellow fire fighters' frustration during a joint television

 appearance following the dramatic rescue. 

"Being there on the scene, seeing the incredible heroism, I was truly moved," Campbell said. "I thought it was a good opportunity for us to metaphorically overcome all our differences. It seemed like if they could do that, and rescue this guy from a crane in a burning building, I could certainly sit down and talk to these fire fighters."

Following talks with union leaders, Campbell announced that all 774 Atlanta fire fighters would receive a $1,000 bonus within the next few weeks. Another $1,000 would be forthcoming by the end of the year. The mayor also promised to replace fire engines every ten years, instead of the current 15 years and to buy new air-packs.
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Jewelry and pizza cause fire fighter woes
A female Iowa fire fighter has been suspended for wearing jewelry while a New Jersey fire fighter is in trouble over buying a pizza. The latter fire fighter has sued his employer while the first fire fighter is herself a veteran of litigation wars.

Peggy Clay, a Cedar Rapids, Iowa, fire fighter, was suspended for one day last month, with pay, for refusing a commander's direct order to remove a necklace and earrings. Since the suspension was with pay, she was ordered to go home for the duration of the shift. The jewelry crackdown began a few days earlier when a fire department official noticed a male fire fighter wearing a small earring. He was ordered to remove it. The fire fighter did as ordered but pointed out that female fire fighters had worn earrings for years. 

Two female fire fighters were then ordered to remove their earrings. When Clay arrived at work, she was unaware of the situation. When ordered to remove the jewelry she refused, telling fire officials she had worn the items for years and they had posed no safety hazard. "In order to treat the males and females equally they couldn't justify making just males remove jewelry," Clay said.

Clay, who was fired in 1994 for refusing her supervisor's order to report to his office, plans to

 file a grievance over the jewelry dispute. A court later reinstated the fire fighter with pay based on her claim that the supervisor had touched her in an unwelcome manner and she did not wish to be alone with him.

In New Jersey, Teaneck fire lieutenant L. J. Bell is suing the town over what has proven to be a $1,000 pizza. Bell and other fire fighters had finished refueling their fire engine last November, when they stopped to buy a pizza to take to the firehouse. The pizza parlor was located two blocks out of company's assigned response district. Consequently, superiors suspended Bell for violating department procedure. The two-shift suspension cost Bell about $1,000 in lost wages as well as seniority.

Bell recently filed suit against the town contending that various state and federal procedural rights were violated in his discipline process. He claims he was required to attend a discipline hearing but was not allowed to ask questions, bring witnesses, or have his attorney present. Additionally, the 12-year veteran contends the town is retaliating against him for giving an unfavorable deposition in a suit filed by another fire fighter who alleged harassment because of his union activity. 
Litigation

Supreme Court update
Review was denied by the Supreme Court in City of Dallas, Texas v. Dallas Fire Fighters Association, No. 98-966 and Dallas Fire Fighters Association v. City of Dallas, Texas, No. 98-1130. The justices also rejected Stahulak v. City of Chicago, Illinois, No. 98-1383. 

The first Dallas decision leaves in place a lower court determination that the city's promotion of black, Hispanic, and female fire fighters over male, non-minority fire fighters who scored higher on promotion exams was not justified and violated

 the equal protection clause of the Fourteenth Amendment to the Constitution. The second ruling confirms a Court of Appeals ruling that federal fair employment laws were not violated when a qualified black male was selected as deputy fire chief, even though the fire chief admitted that he considered the candidate's race. Evidence reflected that chief based his decision on substantially more than the candidate's race.

Finally, in Stahulak, the court rejected a Chicago fire fighter's efforts to challenge an
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arbitration decision regarding his compliance with the city's residency requirement. The inaction leaves in place a lower court determination that under Illinois law only the union or a public employer may appeal arbitrator's rulings to the courts. The probationary fire fighter lacked legal standing to bring his claim. HELD: The ADA prohibits employers from discriminating against a qualified individual with a disability because of the disability. The employer has a duty to make reasonable accommodation to the otherwise qualified individual with a disability. If an employee challenges a purported job criteria as not essential and seeks its elimination, the burden of proof shifts to the employer to establish that the challenged job criteria is essential and, therefore, a business necessity, or that to eliminate it would impose an undue hardship upon the employer. Here, Hamlin presented proof that front line fire fighting was not an essential function of the assistant fire chief position. He pointed out that the key functions of the job were supervisory and administrative in nature. Even if he were needed to respond to the scene of an emergency, his role would simply be that of incident commander, not actual fire suppression. Hamlin argues that he would have been otherwise qualified to continue working if the town had eliminated the non-essential fire fighting functions from his position. In other words, Hamlin argues that because fire fighting is not an essential function of the job, the township could have reasonably accommodated his disability without any undue hardship. In the present case, the township admitted that it terminated Hamlin because of his physical inability to fight fires. Since his evidence was sufficient to raise a genuine issue as to whether fire fighting is an essential function of the position of assistant fire chief, the trial court properly placed the burden on the town to prove that fire fighting was, in fact, an essential function of his job. The town failed to carry that burden and the jury appropriately awarded damages. The town further contends, however, that Hamlin's inability to fight fires created a direct threat to the safety of Hamlin and other fire fighters. Under the ADA, an individual who poses a direct threat to the health and safety of himself or others is not entitled to ADA protection. The town presented evidence about the possibility that the assistant fire chief would have to act as a first responder if someone were trapped in a building or some other emergency erupted. Prior case law

Cases of interest

Handicap discrimination
Hamlin was employed by the township fire department as an assistant fire chief. In 1992, he suffered a heart attack. Following five months of total disability, his doctor authorized him to return to work, but he was advised to avoid strenuous physical activities such as front line fire fighting. For the next year and one-half Hamlin performed his duties without complaint from his superiors. Subsequently, he was offered the position of fire chief but declined. The newly appointed fire chief ordered Hamlin to perform duties of a fire fighter, which, of course, he was unable to do because of his medical disability. Thus, three months after the new chief's appointment, Hamlin was terminated because of his physical inability to engage in the strenuous duties of a fire fighter. After his termination he applied for and was granted a disability pension benefit. Hamlin then filed suit against the town alleging that he had been unlawfully terminated in violation of the Americans with Disabilities Act (ADA) and Michigan state handicap discrimination law. At trial, Hamlin contended that he was unlawfully terminated on the basis of his inability to fight fires, claiming that front line fire fighting was not an essential element of the duties of an assistant fire chief. He asserted that the township had failed to reasonably accommodate his disability in violation of the ADA. The jury agreed and returned a $500,000 verdict in his favor. The trial judge, however, offset the value of Hamlin's disability pension, slightly more than $500,000, against the judgment leaving an empty jury verdict. Hamlin appeals.
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holds, however, that an employer is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, that is to say a high probability of substantial harm. A speculation of remote risk is insufficient. The evidence presented does not establish that there was a high probability of potential harm because of Hamlin's physical limitations. The town further argues that it is inconsistent for Hamlin to maintain that he is otherwise qualified under the ADA, but at the same time apply for and receive benefits on the basis of his disability. The evidence reveals that although Hamlin applied for disability benefits, he never stated he could not perform his duties as the assistant fire chief. Rather, he only contended that he was physically unable to fight fires. The fact that the disability board granted Hamlin a pension on this basis is not inconsistent with his contention that his essential job functions do not include fire fighting. Finally, under prior case law, the trial incorrectly offset Hamlin's pension value against the jury award. The pension is from a collateral source that is independent of the fire department and the town. Jury award affirmed and offset of pension reversed for fire fighter. [Hamlin v. Charter Township of Flint, Michigan, 165 F.3d 426 (6th Cir. 1999)] bargaining subject. The board ruled that the fire fighters' union had committed an unfair labor practice by insisting on bargaining over a permissive topic. Trial court affirmed the ruling and fire fighters' union appeals.

HELD: The Anchorage Municipal Code requires the municipality and its employees to collectively bargain in good faith over wages, hours, and other terms and conditions of employment. This provision establishes a limitation on bargaining topics, dividing matters into mandatory and permissive bargaining subjects. Employers usually are required to collectively bargain in good faith on mandatory bargaining subjects, but other topics are permissive. Employers are not required to bring permissive bargaining subjects to the bargaining table and are free to make unilateral changes on such matters. Federal labor law can serve as a guide for the court in this matter. Under federal labor law the question of interest arbitration is a permissive bargaining topic and a union's insistence to impasse on inclusion of an interest arbitration clause in a contract is an unfair labor practice. Federal courts have concluded that interest arbitration bears only an indirect or remote relation to wages, hours, and other terms and conditions of employment. The fire fighters' union seeks to distinguish their situation from other prior labor cases. Specifically, the fire fighters' union points out that they are barred from striking, thus making interest arbitration all the more important. The strike prohibition may make interest arbitration more important to the union in negotiating new contracts, but it does not alter the nature of interest arbitration. Interest arbitration is simply a process by which the terms and conditions of a new contract are established by a final and binding decision of an arbitration panel. Interest arbitration may impact the union representatives' relationship with the employer at the bargaining table, but does not directly affect the employee's relationship with the employer in the workplace. Affirmed for city. [Local 1264, International Association of Fire Fighters v. Municipality of Anchorage, 971 P.2d 156 (Alaska 1999)]

Bargaining subjects
The city and the fire fighters' union had been parties to a series of collective bargaining agreements. In each of the contracts an interest arbitration clause was included. During contract negotiations in 1991 and 1994, the fire fighters' union desired to continue the inclusion of the interest arbitration procedure. The city did not. In both rounds of negotiations the union insisted to the point of impasse on inclusion of the interest arbitration clause. The city subsequently filed charges with the municipal labor board alleging that the union's insistence on bargaining over the clause was an unfair labor practice. The labor board concluded that interest arbitration was a non-mandatory
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Dues deduction

 professional law enforcement or fire fighter associations. Law enforcement and fire fighter associations are specific types of labor organizations to which public employees may belong. The statute does not exclude labor organizations of professional law enforcement officers and fire fighters. The court's interpretation of the statute allows the mandatory deduction of dues for a fire fighter association if such deduction is properly requested, regardless of whether the association is also a labor union. This interpretation allows both statutes to be given full effect. Reversed for fire fighters with order to fire district to deduct union dues. [Smith v. St. Tammany Fire Protection District No. 1., 723 So.2d 994 (La. App. 1 Cir. 1998)]
In 1996, several fire fighters executed an authorization for the fire protection district to deduct dues from their payroll checks for the local fire fighters' union. The fire fighters' union was an unincorporated labor organization, which held a charter from the International Association of Fire Fighters. After receiving the authorizations, the fire district began deducting the requested dues. Some months later, however, the district notified the employees it would no longer deduct the union dues. According to the notification, the district did not recognize the fire fighters' association or any other labor organization as the representative of its employees. The fire fighters filed suit seeking a writ of mandamus on this issue. The district responded by filing a variety of procedural objections. Ultimately, the trial court ruled that the fire fighters had failed to state a cause of action and the court dismissed the case. Fire fighters appeal.

HELD: A Louisiana statute provides that a municipal employee may request its employer to withhold from his salary a specific amount for dues for payment to a "labor organization." The statute further provides, however, that the public employer has discretion whether or not to make such deductions. A second Louisiana statute, however, mandates a public employer to withhold dues for payment to any "professional state or local law enforcement or fire fighter association." Unfortunately, the legislature did not define or distinguish what is a "labor organization" and what is a "professional law enforcement or fire fighter association." It falls to the court to define these terms. Under the rules of statutory construction, statutes upon the same subject must be read in reference to each other, and language susceptible of different meanings must be construed in such a manner as to best conform to the purposes of the law. In the present case, both statutes address the issue of dues deduction from public employee payroll checks. One provides for discretionary deductions to labor organizations while the other specifically requires deduction of dues only for

Civil liability
The volunteer fire company had responded to a residential fire. In order to obtain water to refill its tank trucks, it was necessary to travel approximately one-half mile away from the scene of the fire. In the course of refilling the tank trucks from a hydrant, water was apparently spilled on the roadway. Spruill drove past the water filling area and ran off the road into a ditch. He suffered disabling injuries and property damage to his vehicle. Spruill brought suit against the volunteer fire company claiming that it was negligent in failing to exercise due care while responding to the fire. Trial court granted summary judgment to the fire company on the grounds of statutory immunity from suit. Injured motorist appeals.

HELD: North Carolina statute states that any member of a rural volunteer fire company shall not be liable in civil damages for acts or omissions related to the direction of traffic in conjunction with a fire. Another statute authorizes private fire companies to do all acts reasonable necessary to extinguish fires and protect life and property from fire. This mandate is limited, however, by language that states that the rural fire department shall not be liable for damages that occur "at the scene of a reported fire." It is clear from the language of the statutes that the legislature intended to immunize
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rural volunteer fire departments from acts and omissions "at the scene of a reported fire." Unfortunately, the law does not define what constitutes "the scene" of a reported fire. Spruill argues that the negligence of the fire company did not relate to the suppression of a reported fire or at the scene of a reported fire. It falls to the court to determine the meaning of "the scene" of the fire to determine the extent of liability, if any, of the volunteer fire company. Prior case law holds that where the language of a statute is clear and unambiguous, the undefined words in the statute must be given their plain and definite meaning. The wording of the statute clearly requires a reported fire and an act or omission relating to the suppression of the reported fire before immunity arises. The fact that the car wreck occurred while the fire fighters were filling their tank trucks with water from the fire hydrant one-half mile away from the reported fire is insufficient to grant the department immunity. The words "at the scene" provide immunity for fire departments for acts and omissions only in a specific place. A broader reading of the statute would be inconsistent with the plain meaning of the words. Since the acts did not occur at the scene of the fire, the statutory limitation on civil liability is inapplicable. Reversed for injured citizen. [Spruill v. Lake Phelps Volunteer Fire Department, 510 S.E.2d 405 (N.C. App. 1999)] pay scales upgraded with increases between 4.5 and 4.8 percent. Fire fighters who are certified as emergency medical technicians will receive supplemental pay between $250 and $1,500 depending on their level of experience.

Marshfield, Massachusetts

fire fighters
Nearly two years after their last contract expired, fire fighters in Marshfield have agreed to a three year contract that establishes 24 hour shifts for the first time. In addition, fire fighters will receive a 3.5 percent raise the first year, and 3 percent in each of the next two years. The agreement is retroactive and expires June 30, 2000. Fire fighters will work one 24-hour tour followed by two days off. Currently, they work two 10-hour days and two 14-hour nights. The new schedule is expected to cut down on extremely long shifts many fire fighters now work in order to fill in for absent co-workers.

Seekonk, Massachusetts

fire fighters
A new three-year pact between the town of Seekonk and its 16 full-time fire fighters will grant raises in excess of 11 percent over the life of the agreement. A 3 percent boost is awarded retroactive to July, 1998. Another 3 percent will be granted this July, followed by a 2 percent hike in January, 2000. The last year of the contract provides another 3 percent increase. The reduced raise in January offsets the town's agreement to provide only 90 percent of the cost of health insurance. The fire fighters also agreed to shift to a less expensive health insurance plan. Included in the pact is a cash settlement of $250 per fire fighter and $500 per fire lieutenant in lieu of annual longevity benefits. Contract language was also altered to permit injured fire fighters to temporarily assume light duty positions. Local 1931 of the International Association of Fire Fighters, AFL-CIO, represented the fire fighters in the negotiations.
Settlements 

Baltimore County, Maryland

fire fighters
A tentative accord has been reached between Baltimore County officials and Local 1311 of the International Association of Fire Fighters, AFL-CIO, representing over 950 fire service personnel. Under the proposed four year pact, a 6 percent cost of living hike will be awarded July 1 followed by 4.5 percent wage boosts in each of the next three years. A ten-year veteran will see salary rise to $39,006 in July. In addition, fire department paramedics will see their