FSLM August 1999




				*August 1999* *Volume 13, Number 8*

	*Fire fighters at three times the risk of death*

	Fire fighters are three and one-half times as likely to die on the job as the average American worker a study issued by the Bureau of Labor Statistics (BLS) reports. From 1992 to 1997, fire fighters died at a rate of 16.5 per 100,000 employed. This compares to 4.7 per 100,000 employed for all workers. Fire fighter death rate also exceeded that of police officers during the same period. Police officers average 14.2 deaths per 100,000 employed. The report also notes that because fire fighters work in teams, there is a high propensity for multiple fatalities from a single incident. The highest occupational death rates are found among timber cutters, fishermen, seamen, and aircraft pilots. Unlike fire fighters and police officers, however, these occupations are not broadly		dispersed throughout society. BLS researchers found, not surprisingly, that fires and explosions were the fatal factor in 42 percent of the deaths but highway crashes accounted for 22 percent of all fire fighter fatalities. "Because lives may be at stake, fire fighters often travel at high rates of speed in their vehicles, exposing them to the chance of collision," the report notes. An estimated 10 million emergency medical calls were made to fire departments in 1997. The report entitled "Fatalities to Law Enforcement Officers and Firefighters, 1992-97" is published in the Summer 1999 issue of the BLS magazine Compensation and Working Conditions. The issue is also available on the Internet at www.bls.gov/opub/cwc/cwchome.htm.

	*Houston arson investigators want cop pay*

	What wears a badge, carries a pistol, interviews witnesses, makes arrests, and testifies in court? A police officer? No, a Houston Fire Department arson investigator _ and therein lies the problem. Earlier this month, 55 of the city's 60-person arson bureau filed a lawsuit in state court asking that the meet and confer agreement with the Houston Police Officers Union (HPOU) be voided because it does not cover them. The arson investigators, who are certified fire fighters as well as licensed peace officers, claim they should be paid the salary supplements of a police officer. Currently, they are covered under the meet and confer agreement with the Houston Professional Fire Fighters Association, IAFF, AFL-CIO. The city has base wage parity for fire fighters and police officers. The lawsuit against the city and the HPOU seeks the education, longevity, and training pay that		is part of the police contract but not in the fire fighter agreement. These bonuses include $68 per week for master peace officer certification and stipends of $2,400 to $7,600 for various levels of college degrees as well as a college tuition reimbursement plan. As in virtually every other city in Texas, Houston arson investigators operate as a division of the fire department. Each investigator's career begins in the fire academy followed by assignment as a fire fighter. Under Texas law, however, arson investigators are legally designated as "peace officers," the same as city police officers. Consequently, arson investigators also must complete a state-approved police academy. Chief arson investigator Roy Paul, a plaintiff in the suit, said that arson squad members perform the same duties as police officers, but do not have




		*August 1999*			*Volume 13, Number 8*


	the opportunity to receive the supplemental pay. In addition, unlike city police officers, the arson personnel must purchase their handguns with personal funds. The HPOU earlier rejected efforts by the investigators to become part of their bargaining group. A police union spokesman noted that the investigators are "peace officers" but not "police					officers" under Texas law. The meet and confer authority for Houston fire fighters and police officers is controlled by two different state statutes. Texas lacks an administrative agency to resolve public sector labor disputes. A rival police group, the Texas Municipal Police Association, reportedly is providing the attorneys for the arson investigators.

	*Sleeping on the job sometimes costly*

	Fire fighting is one of the few occupations where personnel are permitted, even encouraged, to sleep on the job. However, fire fighters are expected to awaken when needed. This is a lesson a Florida fire fighter is learning the hard way. The Pinellas Park Fire Department recently suspended fire fighter Barac Wimberly for three days without pay. Wimberly allegedly slept through a fire alarm for the second time. Wimberly, a four-year veteran, has filed a grievance in the matter, blaming problems with the alarm tone volume, a loud ventilation fan, and over-the-counter medication he was taking. The grievance argues that "Since fire fighter Wimberly was sleeping, for all intent and purposes unconscious, it is unreasonable to expect an unconscious person to respond to situations or perform tasks while asleep." The fire chief was unimpressed with the argument, claiming that the fire fighter's "weak excuses" show that Wimberly is refusing personal responsibility "for making certain that he does what					he is paid to do, get on the fire engine and go to the emergency." Earlier this year, Wimberly had received a written reprimand for sleeping through an alarm because he was wearing earplugs to drown out other fire fighters' snoring. The latest incident happened around 11:30 p.m. on June 13, when Wimberly was filling in for an absent fire fighter away from his normal station. All fire fighters were asleep when the alarm sounded. The truck left without Wimberly, who failed to awaken. His supervisor did not recommend discipline but did report the matter. After a district chief learned of the incident, Wimberly received the three-day suspension. He claimed the noise level of a fan in the sleeping quarters drowned out the alarm tone. In reviewing the matter Fire Chief Ken Cramer said, "If the level of the noise from the fan in the dormitory is as loud as stated, then how could fire fighter Wimberly have been able to sleep at all? The remainder of the crew responded to the alarm, only fire fighter Wimberly did not."

	*Chicago pondering mandatory retirement*

	Chicago Mayor Richard Daley is exploring the possibility of reinstating a mandatory retirement age for the city's fire fighters and police officers. Establishment of a retirement age of 63 is directed at improving morale and enhancing a youth movement in both agencies. If established, the requirement would force out 40 fire fighters and 67 police officers. The city repealed mandatory retirement in					1993 following a string of court cases. The Chicago Sun-Times quoted Bill Kugleman, president of Chicago Fire Fighters Union Local 2, as saying that "63 and out" is the only way to rid the department of "dinosaurs" standing in the way of change. Federal law effectively banned mandatory retirement ages until 1996, when Congress granted special relief to public safety agencies.




		*August 1999*			*Volume 13, Number 8*


	*Litigation*					campaign against the mayor and several city council members. On the day of the recall election about 40 fire fighters received notices of discipline. The recall election failed. Meanwhile, the city had hired a consulting firm to study payroll and overtime practices. The firm's report found extensive non-compliance with city policy on submission of leave forms. The report found more than 9,500 leave hours that could not be accounted for. As a result, the fire chief launched an investigation of the alleged abuse of leave. Several city officials made public statements accusing the fire fighters of manipulating the overtime system and of "ripping off" the taxpayers. Meanwhile, a structural fire resulted in the death of a child. The battalion chief at the scene told Garrison, the union president, that he thought the tragedy could have been averted had he had the proper equipment and staff. The union issued a press release stating that the tragedy was the direct result of the mayor and city council placing politics above the safety of the people. Shortly thereafter, the city suspended Garrison. He was later discharged for issuance of the press release and for his failure to comply with the leave policy. About the same time, the city dismissed Gilbrook, accusing him of embezzling city funds and violating the leave policy. Gilbrook, Garrison, and four other former fire fighters filed suit against the city, the mayor, the fire chief, and various other officials alleging they had been terminated for exercising their First Amendment rights. They also alleged that certain defendants had defamed them by accusing them publicly of criminal wrongdoing. The matter proceeded to a jury trial that resulted in a holding for the city and its officials on all claims except two. The court found that two of the fire fighters had been improperly terminated. Parties appeal. HELD: The major claim on appeal has to do with the liability of city officials in dismissing two of the fire fighters for unlawful reasons. Two of the fire fighters were apparently discharged for exercising their right of free speech under the First Amendment but also for violating the city leave policy. The Supreme Court has held that where both
	Cases of interest

	Dismissal grounds

	Gilbrook was president of the fire fighters' union and Garrison was its public information officer. The union had been active in local politics for nearly twenty years. While in the past the union had supported the incumbent mayor, in the 1992 election the union endorsed the challenger. Union members campaigned actively for the challenger and distributed literature for him. Garrison ran the challenger's campaign office. Despite these efforts, the incumbent mayor emerged as the victor. During the campaign the mayor expressed openly his bitterness toward the union for its defection. He made several statements that were anti-fire fighter union. Following the mayor's election, a citizen's committee was appointed to review the city budget and produce an interim report on the fire department. The report recommended significant cuts in the fire service, the dismissal of fire fighters, and the curtailment of fire fighters' political activities. The report further recommended that the city explore privatization of the fire service and that the fire department be excluded from any future contractual bidding for fire services unless the fire fighters desisted from their political activities. The report produced a political firestorm. The union went on the offensive and produced a video explaining the recommendations. It collected over 14,000 signatures to protest the proposed budget cuts. Meanwhile, the mayor began accusing the fire fighters of abusing the department overtime system. One city official referred to Gilbrook, the fire fighters' union president, as "Jimmy Hoffa" and a "cancer" in the fire department. Despite the union's protest the city council voted to reorganize the fire department by laying off six fire fighters, removing a truck from service, and increasing paramedic services. In response to the actions, the union joined forces with a citizen's group and mounted a recall




		*August 1999*			*Volume 13, Number 8*


	legitimate and illegitimate motives may have played a part in an adverse employment action, the ultimate inquiry is whether the employer would have reached the same decision as to the plaintiff's employment status even in the absence of the protected conduct. Thus, a cause of action does not lie if an individual is terminated based on legitimate grounds even though there are unlawful grounds also figuring in the decision. This case is a bit unusual, however, because the disciplinary process began with the retaliatory motive and ended with a legitimate motive. That is to say, the violation of the city leave policy charge did not come about until efforts were underway to terminate the individual fire fighters based on constitutionally protected activity. Prior case law holds that a subordinate city official cannot use the non-retaliatory motive of a superior official as a shield against liability if that superior official never would have considered dismissal but for the subordinate's retaliatory conduct. In this case, an assistant city manager reviewed the actions of the fire chief. The fire chief cannot escape liability for using protected First Amendment grounds to initiate dismissal on the basis that the city manager ultimately made the decision based on violation of the city leave policy. Gilbrook claimed he was slandered by the city official who called him "Jimmy Hoffa." A jury agreed with Gilbrook that this comment constituted slander. The First Amendment places limits on the types of speech that may give rise to a defamation action under state law. Such protection extends to statements of opinion on matters of public concern that do not contain or imply a provable fact assertion. It would appear that the city official's "Jimmy Hoffa" statement was protected by the First Amendment and is not the type of speech that is subject to a state law defamation action. The use of a notorious union leader's name to characterize Gilbrook, who was also a union leader, constitutes the type of colorful, figurative, rhetoric that reasonable minds would not take to be factual. The statement was a rhetorical hyperbole or caustic attack that a reasonable person would expect to hear in a rancorous public debate					involving money, unions, and politics. The statement could not give rise to a claim of defamation because it was protected under the First Amendment. Also raised on appeal was the trial court's granting of a judgment in favor of the city on Garrison's retaliation claim for the statement regarding the fatal fire. Trial court found that even if the statement qualified as protected speech under the First Amendment on Garrison's part, the individual defendants were entitled to qualified immunity. There is little doubt that Garrison's statement to the press in the wake of the fatal fire addressed a matter of public concern. The fire department's ability to respond effectively to life threatening emergencies is obviously a matter of public concern. Only six months earlier the city council had slashed the fire department's budget by laying off fire fighters and putting one truck out of service. A public employee's speech reported by the press almost by definition involves some matters of public concern. Prior case law, however, requires application of a balancing test in cases such as this. In conducting this balance, courts must give government employers wide discretion and control of the management of personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. In balancing the competing interests in this case, the court looks at whether the comment impaired discipline or control by supervisors, disrupted coworker relationships, eroded a close working relationship, interfered with the speaker's performance, or obstructed routine office operations. There is simply no evidence in the record suggesting that Garrison's statements affected his own duties, impaired a close relationship, or otherwise obstructed fire department operations. The morale of fire fighters was already low and the statements by Garrison could have at best had a marginal impact on morale. The balancing test clearly weighs in favor of Garrison that it was blatantly unreasonable for the city to conclude that the First Amendment did not protect his speech. Reversed for Garrison and reinstatement




		*August 1999*			*Volume 13, Number 8*


	of his First Amendment claim. All other judgments affirmed. [Gilbrook v. City of Westminster, California, 127 F.3d 839 (9th Cir. 1999)]					pay an employee overtime compensation at a different hourly rate than the employee's regular hourly rate when the employee performs two or more different kinds of work. To satisfy FLSA criteria that the employee must perform two or more kinds of work, the employer must establish a bona fide hourly rate of pay, the compensation must be paid pursuant to an agreement or understanding arrived at between the employer and the employee, and the compensation must be a rate of not less than time and one-half of the non-overtime rate. Here, the fire fighters contend that a substantial amount of overlap exists between fire fighter duties and fire inspector duties and, thus, are not "two or more kinds of work." A review of the job descriptions, however, reveals that the overlap between the fire fighter and fire inspection duties are insubstantial and do not defeat the conclusion that they are two different kinds of work for FLSA purposes. First, fire inspectors conduct an entirely different type of inspection than a normal fire fighter would conduct. They inspect public buildings and business establishments, order correction of dangerous conditions, and prepare and maintain reports of the inspections. While the inspectors have some responsibility in responding to fire alarms and fighting fires, that situation occurs infrequently. Fire fighters spent less than one percent of their time riding with the truck company while being paid at a fire inspector rank. The inspectors contend that the fire district has not established a bona fide hourly rate for fire inspection services because all inspection duties were performed only during overtime hours. The rate was established by conducting a survey of neighboring fire districts. The fact that no one is paid the straight time rate as a fire inspector does not defeat the fact that the pay scale is a bona fide rate. Although fire inspection services are performed only during overtime hours, the hourly rate in this case is bona fide within the meaning of the FLSA. Summary judgment for fire district finding no violation of FLSA. [Mathias v. Addison Fire Protection District No. 1, 43 F.Supp.2d 916 (N.D.Ill. 1999)]

	Overtime
	The fire protection district employed fourteen fire fighters on three shifts. They worked 24 hours on duty followed by 48 hours off duty and provided a variety of fire fighting skills. The district also had a position of fire inspector. Five of the district's fire fighters served as fire inspectors. Like all fire fighters, they worked the 24-hour shift. These five fire fighters also worked two or three 8-hour shifts a week as fire inspectors. Fire inspection required them to be certified by the state and to possess a thorough knowledge of hazards, fire safety laws, building practices, and the like. Each day the district assigned to the truck company one of its two fire inspectors who were on duty that day. The fire inspector assigned to the truck would respond to any fire alarm to which the truck company responded if the inspector was at the station. This inspector provided extra manpower for the truck. Fire inspectors were also required to respond as fire fighters to working fires. The evidence subsequently reflected that each fire inspector responded to fewer than 25 alarms a year. In 1985, the Supreme Court held that public employers were not immune from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). As a result, the fire district contacted legal counsel regarding establishing a regular rate of pay and its overtime practices for the fire inspectors. A survey was conducted of area fire departments to compare the pay of fire inspectors to that of fire fighters. Based on the survey, the fire district established a regular pay rate for inspectors. This rate was less than the hourly wage paid to fire fighters. Thus, when the fire fighters were performing inspection duties on overtime, they were paid based on the lesser fire inspection rate, not on their regular rate as a fire fighter. Fire inspectors sue alleging a violation of the FLSA. HELD: The FLSA permits an employer to




		*August 1999*			*Volume 13, Number 8*


	Duty of fair representation					city and the union as well as the union's lawyer. Trial court granted summary judgment for the defendants and fire fighter appeals. HELD: A union has a duty to represent its members fairly. The fair representation duty is breached when the union's conduct towards a member is arbitrary, discriminatory, or in bad faith. A union does not breach its fair representation duty merely by refusing to bring an employee's grievance to arbitration when the union believes there is only a slight chance of success. A union acts arbitrarily if it acts without any rational basis and ignores a meritorious claim or handles it in a perfunctory manner. A union's mere negligence does not rise to the level of a breach of duty of fair representation. When a union which is sued for negligent conduct establishes that its action involved exercise of its judgment, it is entitled to summary judgment on a fair representation claim. In this case, the trial court concluded that the union did not breach its fair representation duty because Wilson had not asked it in a timely manner to grieve his rehire claim. The court also concluded that the union made a reasonable tactical choice to file a grievance when Wilson was next rejected for the inspector position. Unions are simply not required to provide error free representation to their members. Unions must be given a reasonable amount of discretion in handling their members' grievances. The union concluded that it did not pursue the rehire rights on Wilson's behalf because it was likely to be time barred. Wilson should have the right, however, to present evidence that the union concurrence to the original rehire letter may have caused him to delay filing a grievance. If the union's action in approving the rehire letter in apparent conflict with the provisions of the collective bargaining agreement caused Wilson to fail to timely request a grievance, the union may have breached its duty of fair representation. The fire fighter should have the opportunity to present that in court. Reversed for fire fighter on question of union's fair representation in initial rehire letter. [Wilson v. Municipality of Anchorage, 977 P.2d 713 (Alaska 1999)]

	Wilson was a veteran fire fighter who had promoted to fire inspector where he had served for eight years. He submitted a resignation letter because of a non-occupational medical disability. Shortly before resigning he filed a claim for occupational disability benefits. Ultimately, he withdrew his application for disability benefits and sought reemployment with the fire department. The fire chief notified Wilson by letter that he could request rehire as a fire fighter in a lower rank in pay than fire inspector. The letter stated that Wilson's rehire had been discussed with the local fire fighters' union president. The union president had added the notation "concur" to the letter. Wilson subsequently requested rehiring and sought a fire inspector position. The chief responded that he could not jump ahead of other department members on the fire inspection promotion list but could compete during the next promotional period. Wilson contacted the union attorney who subsequently analyzed Wilson's reemployment rights under the collective bargaining agreement. The attorney noted that Wilson should have been rehired as a fire inspector and could potentially claim that the union breached its duty of fair representation because it signed off on the original rehire letter that would have allowed him to return only as a fire fighter. Subsequently, the union asked the fire chief to give Wilson preferential promotion to the first available fire inspector position. The chief denied the union's request. Ultimately, the union filed a grievance on Wilson's behalf and after the municipality denied the grievance, it went to arbitration. The arbitrator found that the preferential promotion rights contained in the collective bargaining agreement were not available to Wilson because he did not suffer an occupational illness. The arbitrator also ruled that Wilson should have filed a grievance when the municipality refused to rehire him as a fire inspector and that any subsequent grievance was now untimely. The union refused to appeal the arbitrator's decision. Wilson filed suit against the




		*August 1999*			*Volume 13, Number 8*


						however, that it retains immunity because the fee charged was a token one and is not the type of fee contemplated by the statute, as it did not result in a profit. However, city ordinance granted authority to charge fees to any member of the public who utilizes ambulance services and specified the levels to be charged. Such assessments are a "fee" within the meaning of the statute and correspondingly cause the city to lose the immunity of the Good Samaritan Act. The city argues, however, that the fee was never paid by the deceased or her survivors. The language of the statute focuses on the patient, not the provider. The statute talks of a fee being charged, not a fee being received. Thus, although the actual fee was never paid, the fact that the victim was charged a fee was sufficient to bar the immunity claim of the city under the Good Samaritan Act. As to the Maryland Fire and Rescue Act, this law was intended to also provide a level of immunity to fire and rescue companies. A review of the statute and its legislative history, however, reveals that it was not intended to apply to a municipal fire and rescue department. Rather, the law covers volunteer fire companies. Thus, trial court erred in dismissing the case based on immunity. Matter is reversed for trial to determine whether paramedic's conduct was negligent and the city thereby liable for death. [Chase v. Mayor and City Council of Baltimore, 730 A.2d 239 (Md. App. 1999)]
	Civil liability

	An ambulance operated by the city fire department was summoned to the home of a 66-year-old woman who was complaining of shortness of breath. A fire unit also responded to the call as was apparently customary. Emergency aid was administered for heart failure, including intubation of the victim. She was transported to the hospital but subsequently died. Her estate filed suit against the city and the attending emergency medical technician (EMT) alleging that his negligent intubation led to the deceased's death. The paramedic and city move for summary judgment based on the Maryland Good Samaritan Act and the Maryland Fire and Rescue Company Act. Trial court granted the motion as to the paramedic and the city. Deceased's estate appeals. HELD: This case involves interpretation of Maryland statutes. In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention. Legislative intent generally is derived from the words of the statute at issue. In analyzing a statute, a court approaches construction from a common sense perspective. The court will avoid construing a statute so as to lead to results that are unreasonable, illogical, or inconsistent with common sense. The Good Samaritan Act absolves individuals from civil liability when rendering medical care at an emergency if the care is "provided without fee or other compensation." The deceased's estate argues that the Good Samaritan Act does not afford immunity to the EMT and, therefore, the employing city, because the deceased was billed $100 for ambulance service. A close reading of the statute reveals that the legislature intended for immunity to attach only if the patient received aid without being assessed a fee. Because the EMT is an employee of the city, a situation could never arise in which the EMT personally charged members of the public a fee but the EMT's employer, the city, did charge a fee. Thus, the EMT cannot be considered a "good samaritan." The city claims,

						Dismissal grounds

						Smith was a fire fighter who became the subject of a criminal investigation for an indecent assault and battery. He allegedly assaulted the wife of a fellow fire fighter while off duty. After a criminal complaint was filed against him, Smith was placed on administrative leave by the fire chief. Smith later admitted to the charge and was placed on one year probation and ordered to undergo a sexual evaluation and follow-up counseling. Meanwhile, the chief notified Smith that a hearing would be held to determine whether his conduct relative to the criminal complaint was conduct unbecoming a fire fighter. Ultimately, the fire chief




		*August 1999*					*Volume 13, Number 8*


	terminated Smith for conduct unbecoming. The matter was appealed to the county retirement board which held a hearing. The board determined the termination to be unjustified and reversed. Trial court upheld the board and fire chief appeals. HELD: The board found that the fire chief's reason for terminating Smith was not supported by department rules related to prohibited conduct while on duty or in uniform. Since Smith's actions did not occur while he was on duty or in uniform, the department could not invoke a rule regarding conduct unbecoming as a basis for his termination. The fire chief argued, however, that Smith's admission to the fact was sufficient to constitute a guilty plea. The board, however, correctly determined that this admission was not akin to a guilty plea because if Smith completed his probationary period successfully, all charges against him would be dismissed and he would have no criminal conviction record. The decision of the board was legally correct. A decision of the board may only be set aside if based on error of law or unsupported by substantial evidence. There appears to be no error of law in this case and the determination is supported by substantial evidence. Under Massachusetts law, although a crime arising from an employee's off-duty conduct is not generally considered misconduct in office, there are circumstances where the crime charged, no matter where or when performed, is so contrary to the duties inherent in the employment that an indictment for that crime is considered misconduct in office. This is not the case here, however. Likewise, cases involving discharge of police officers for inappropriate behavior while off duty are distinguishable because they turn on conduct that brings public distrust of law enforcement. Reinstatement of fire fighter affirmed. [Pratt v. Plymouth County Retirement Board, 710 N.E. 644 (Mass. App. Ct. 1999)]							*Settlements*
								Milwaukee, Wisconsin fire fighters
								The city's fire fighter union has approved a new two-year wage pact that includes pension increases. The pact, retroactive to 1998, provides 3 percent salary boosts in each year. On the pension side, a fire fighter could retire at age 49 with 22 years of service. Any service years beyond 20 would be credited at 1.5 times. In addition, a 5 percent bonus is payable at retirement. Under the new wage agreement, a veteran fire fighter will earn about $49,700 annually. The Milwaukee Professional Fire Fighters Association, Local 215 of the International Association of Fire Fighters, AFL-CIO, represents the 1,000 fire service personnel.

								San Francisco, California fire fighters

								San Francisco fire fighter salaries will hit $70,985 in the year 2000 under the new memorandum of understanding between the city and the San Francisco Fire Fighters Union, Local 798 of the International Association of Fire Fighters, AFL-CIO. With overtime, some fire fighters could top $100,000 in wages. Fire fighters will receive an 11 percent raise plus another 6 percent as a replacement for loss of a deal that previously paid overtime for 11 city holidays whether or not a fire fighter was on duty. Another 6 percent will be available for personnel holding college degrees in fire science or who are certified as paramedics. According to city calculations, the average fire fighter will see the paycheck jump by $14,288 a year. Mandatory dues check-off is also included in the pact for the first time. This latter provision has sparked controversy among some non-union black fire fighters who charge that the union does not represent their interests. Non-members of the union will be required to pay a service fee calculated at 85 percent of union dues.