February 2000
Volume 14, Number 2

Unions calling for and getting Hepatitis C aid 
Responding to demands for assistance from its fire fighters' union, the City of Philadelphia announced last month that it will provide millions of dollars to help fire fighters and paramedics who have contracted the Hepatitis C virus. City officials committed to providing enough money to treat up to 200 fire service personnel at a cost of $1,500 per month. Cost of the program will reach $3 million the first year. 

Officials of Local 22 of the International Association of Fire Fighters, AFL-CIO, have been urging the city to take responsibility for the infected fire fighters. Union officials argued that too many people were contracting the disease for the matter to be considered a coincidence. 

George Casey of Local 22 said last year that he believed many fire fighters became infected while responding to accident calls before masks and gloves became standard equipment. "They use to call us `swoop and scoop' guys," Case stated. "We would

 get covered with blood and everything at the accident scene."

Hepatitis C is a blood-borne virus of the liver that can cause death if left untreated. As many as 5 million Americans may suffer from the illness, which can remain dormant for up to 20 years. Hepatitis C is currently the largest viral epidemic in the country with more than five times as many victims than HIV.

Meanwhile, Chicago fire union officials are calling for Hepatitis C testing of that city's active and retired fire fighters. Union officials estimated "25 or 30" cases in the fire department. City officials countered that the current union contract already allows employees to request testing at a cost of about $70 per patient. 

New York City tests fire fighters and paramedics prior to being hired and retests every 15 months. Several other fire departments have similar testing policies.

Union membership continues rise as do wages
In 1999, government workers were four times as likely to be union members as were their private sector counterparts and local government workers, a group that includes police officers and fire fighters, had the highest unionization rate in the public sector. This is according to the Bureau of Labor Statistics (BLS) annual survey of union membership released last month.

The protective service category, which includes police officers, correctional officers, and fire fighters, reported the highest unionization rate among occupational groups at 38.2 percent. Across all occupational categories, 42.9 percent of local government workers are unionized.

 The high unionization rate may be partially attributable to another BLS finding: unionized public sector workers, on average, earned a weekly wage 30 percent higher than their non-union counterparts. In the protective service, the union/non-union wage differential was reported as 23 percent. Protective service personnel represented by unions earned an average of $732 weekly. In contrast, the average weekly wage for all protective service personnel, union and non-union, was $598. All local government workers average $612 weekly, according to the BLS.

BLS estimates that 991,000 protective service personnel are members of unions. 
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Volume 14, Number 2

California suit challenges compulsory union fees
The National Right to Work Foundation (NRWF) last month filed two suits in California attacking use of compulsory union fees for political activities. One of the suits was filed on behalf of 160 non-union San Francisco fire fighters.

Both suits challenge a union's right to take service fees from non-members, alleging such action violates the First Amendment by forcing employees to pay for union political activities. The suits claim that the unions have not appropriately detailed how the fees are determined and spent.

NRWF, a non-profit group that advocates against compulsory unionism, filed about 50 similar suits last year. Supreme Court decisions permit collection of "fair share" service fees from non-

 members of a union, but the union may not spend the money on political activities.

Local 798 of the International Association of Fire Fighters, AFL-CIO, which serves as bargaining representative for about 1,700 San Francisco fire fighters and paramedics, reached an agreement with the city last year allowing it to deduct a service fee from non-members' paychecks. The fee is estimated at 80 percent of the $598 annual member dues.

Attorneys for the NRWF contend that non-union personnel are not given a voice in how their fees are spent. The attorneys also charged that the fire fighters' union has not justified the amount of the service fees.

Not one's usual career change
The New York City Police Department (NYPD) reported this month that 64 officers had resigned from the force. Not unusual as the agency loses on average 150 officers per month. Not unusual except these officers resigned to join the city's fire department. The defectors included two sergeants and two detectives who took hefty pay cuts to become $32,724 per year fire fighters.

The latest group of ex-officers is the largest to enter the Fire Academy in five years. Of the 11,000 fire officers and fire fighters on the Fire Department of New York (FDNY), an estimated 2,000 are former police officers.

NYPD is facing a mass exodus of retirees

 and has been struggling to recruit replacements. By 2004, one in every four officers on the 40,000 member force will be eligible to retire. The number of new job applications has fallen off greatly.

John Puglissi, an official with the Patrolmen's Benevolent Association, explained the current departures. "Being a police officer is a thankless job. We bring down crime . . . and then we're underpaid for the services we perform."

Mike Carter, vice president of the Uniformed Firefighters Association, saw the phenomenon this way. "The police officer has an uphill battle. He's out there writing tickets. We're out of sight until that big red door goes up."

Peeping fire fighter suit settled
Nashua, New Hampshire's only female fire fighter has settled a lawsuit against a fellow fire fighter who drilled a hole through a fire station wall to peep inside her bedroom. Judith Bayrd settled the matter last month. The offending fire fighter, Scott Martinage, was fired after department officials discovered the hole but was later reinstated by the state labor board. Court records indicated that Nashua fire officials found the peephole soon after it was drilled in May, 1997. Martinage admitted to drilling the hole but reportedly never saw Bayrd through it.

After Bayrd filed the suit, the court ordered the city to hold Martinage's back pay to satisfy any potential judgment against him. Bayrd placed a lien on the money while the suit was pending. The
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money, over $14,000, apparently will be used to settle the case.  Both Bayrd and Martinage still work for the department.
Litigation

Cases of interest
HELD: A plaintiff seeking relief under the ADEA must establish that he would not have been treated adversely by his employer but for the employer's motive to discriminate against him because of his age. This alleged discrimination may be proven either by direct or by circumstantial evidence. The trial court correctly ruled that Baron's efforts to introduce the fire chief's alleged statement about Baron wanting the position to enhance his pension was properly excluded under federal evidence rules. A review of the evidence reveals that Baron was qualified to be a fire lieutenant but the city presented several legitimate nondiscriminatory reasons for its failure to promote Baron. City noted that Baron did poorly on the written test, for example, and that he appeared uninterested during the oral interview. City officials also stated that they felt Baron lacked the leadership skills to be an effective supervisor. There is no evidence in the record to indicate that any of these reasons were a subterfuge to conceal age discrimination. Prior case law holds that employers may act for many reasons, good and bad. They may err in evaluating employee's strengths but unless they act for forbidden reasons, these errors of assessment do not matter. Because Baron failed to establish that the city's reason for refusing to promote him was anything but possibly an arbitrary selection process, trial court was correct in granting summary judgment for the city. [Baron v. City of Highland Park, Illinois, 195 F.3d 333 (7th Cir. 1999)]

Age discrimination
Baron was a 47-year-old veteran fire fighter who applied for the position of fire lieutenant. He sat for the written examination and underwent an oral interview in order to be considered for promotion. The two scores were subsequently averaged and additional points added based on military experience and seniority. Baron's final overall score placed him twelfth on the eligibility list. Because there were only two fire lieutenant positions available, the top two ranked candidates were promoted. One was a 30-year-old who received the same written score as Baron but a higher oral score and the other a 31- year-old who received a much higher oral and written score than did Baron. Baron was unhappy with his oral interview score because he believed he was well qualified to be a fire lieutenant. He was of the opinion that he was more qualified than the two individuals who were promoted, particularly because he possessed several college degrees and had received training in a variety of fire fighting methods. Baron became convinced that he was not promoted due to his age. He subsequently filed suit against the city alleging that he was denied promotion contrary to the Age Discrimination in Employment Act (ADEA). Before the trial court Baron alleged that during the oral interview he was not asked any substantive questions regarding fire fighting or city policies. He further claimed to have overheard the fire chief state that Baron only wanted the position to enhance his pension. Trial court subsequently ruled that the alleged statement by the chief was inadmissible and that Baron had failed to establish even indirect evidence that the city discriminated against him on the basis of his age. Fire fighter appeals.

Handicap discrimination
After serving two years as a fire fighter, Shipley was injured on the job. He retired with a disability pension. After several years of physical therapy he convinced the retirement board to reinstate him as a fire fighter. About 10 years later
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he was again injured, this time in a fall from a truck. He retired once more. For four years he worked as a car wash attendant, salesman, at a dry cleaners, and as a dishwasher repairman. In 1994, he again applied for reinstatement as a fire fighter and supplied the retirement board with several letters from physicians. The board voted unanimously to deny his request to return to duty as a fire fighter indicating that it was interested in safeguarding Shipley, the citizens, and his fellow fire fighters. Shipley filed suit against the city claiming a violation of the Americans with Disabilities Act (ADA). Trial court dismissed the claim and former fire fighter appeals.

HELD: The ADA bars discrimination against a qualified individual with a disability because of the disability. A qualified individual is one who, with or without reasonable accommodation, can perform the essential functions of the job in question. A disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of such individuals, a record of such impairment, or being regarded as having such impairment. Shipley argues that the city regards him as having an impairment, a violation of the ADA. To recover damages, Shipley must demonstrate that the city refused to reinstate him as a fire fighter because it regarded him as substantially limited in one or more life activities. Last year, the Supreme Court clarified what constitutes a substantial limitation of a major life activity. The court held that the phrase "substantial limitation" requires a plaintiff to be unable to work in a broad class of jobs, not just a particular job. The record in this case indicates that Shipley was able to perform a variety of jobs when he was not working as a fire fighter. Thus he is not precluded from the major life activity of working. The former fire fighter has produced no evidence that he was terminated for any reason other than the retirement board's concern about his capacity to perform as a fire fighter. No ADA claim has been made. Affirmed for city. [Shipley v. City of University City, Missouri, 195 F.3d 1020 (8th Cir. 1999)]

Overtime

City fire fighters worked 24-hour shifts and averaged 168 hours for every 21-day work cycle. Under the collective bargaining agreement between the city and the fire fighters' union, as well as the federal Fair Labor Standards Act (FLSA), the fire fighters were entitled to time and one-half compensation for all overtime in excess of 159 hours in a 21-day cycle. Thus, under both the labor contract and the FLSA the fire fighters were entitled to overtime compensation for 9 hours of work if they did not miss a shift during the 21-day cycle. Two of the fire fighters were members of the Air Force Reserve. Their reserve responsibilities coincided with their shifts at the fire department. As members of the reserve, they were required to report to duty for two weeks per year and at least one weekend per month. Reserve shifts generally ran from 8:00 a.m. to 4:30 p.m. Until January 1999, the city allowed fire fighters serving in the military to take their entire 24-hour work shift as military leave. However, the city paid fire fighters at the regular rate for the entire 24-hour period. The city did not take into account time spent on military leave for purposes of calculating overtime. Subsequently, the fire chief reviewed the department's policy towards military leave. After reviewing both the federal law and a Minnesota statute, the fire chief concluded that fire fighters in the military reserve were not entitled to any pay and that their hours did not count toward overtime unless they returned to work immediately after the military duty had ended. This conclusion was based upon a reading of the state statute. The fire chief defined the word "immediately" to mean that the reservist must proceed directly from the military post to the fire department to be eligible for military pay. Consistent with this view the city instituted a new policy. Under the new policy fire fighters who served in the military must return to their work shifts at the fire department immediately after their shift in the military ended, if they wanted to be eligible for pay under state statute. If they returned immediately, they were entitled to be paid for the
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entire 24-hour shift that they had missed. In addition, the military time would count toward overtime. If the fire fighters did not return to work immediately upon being relieved from military service, they received military pay only for their time in training or active service. In addition to the new policy, the city required each employee to submit a special military pay request form. Subsequently, Pargaman, one of the fire fighters who was a reservist, refused to sign the request form arguing that it was unlawful. When he refused to fill out the form after being so ordered by the fire chief, he was given an oral reprimand. Pargaman and another fire fighter, who was also a military reservist, filed suit against the city alleging that the overtime policy violated the FLSA, Minnesota statutes, and the federal Uniformed Services Employment and Reemployment Act as well as the state whistleblower act. City moves for summary judgment.

HELD: Minnesota statute provides that public employees are entitled to take military leave without loss of pay or other benefits for up to 15 days a year. Statute further provides that such leave shall not be allowed unless the employee returns to the public position immediately upon being relieved from military service. The fire chief argues that the word "immediately" means that the public employee must proceed directly from the military post to the fire station. The problem with this position is that it ignores another portion of the same law that speaks in terms of "days" that a public employee is entitled to have off as military leave. The term "day" when used in a statute is generally defined to include a 24-hour period. Nothing in the statute in question suggests that the term "day" should be defined differently and, thus, a reservist taking a "day" off for military leave would be entitled to take without loss of pay the entire 24 hour period. Even the city fire department defines a "day" as 24 hours when it comes to scheduling fire fighters for work. The fire fighters' position that they need not return to work until their next regularly scheduled shift is entirely consistent with the statute's requirement that

 employees return to work immediately after being relieved from service. This conclusion is consistent with the intent of the legislature. Thus, the city's military leave policy violates state statute. Fire fighters also argue the policy improperly impairs or restricts their rights under the FLSA. The city fire fighters work an average of 168 hours and are entitled to 9 hours of overtime under the FLSA partial exemption. But under the FLSA a fire fighter is entitled to overtime only where the fire fighter performs activities, which are required for, or directly concerned with, the prevention, control or extinguishment of fires. Prior case law holds that under the FLSA a fire fighter is not required to be paid overtime for military leave because those are not actually hours worked for FLSA purposes. On the other hand, Minnesota statute does entitle fire fighters to have the hours spent on military leave counted toward overtime. As to the order to fill out the military time pay request form, this form is simply a method to keep track of the number of hours a person is entitled to be paid while on military leave. However a reasonable jury might find that such activity is protected under the Minnesota whistleblower law because the fire fighter acted in good faith at what he believed was a violation of the law. It is irrelevant for the purposes of the statute whether there was an actual violation of the law. Good faith is normally a question of fact for the jury and as such summary judgment is inappropriate on this issue. [Boelter v. City of Coon Rapids, Minnesota, 67 F.Supp.2d 1040 (D. Minn. 1999)]

Compensation
The city fire fighters operated under three separate platoons, each platoon working a full 24-hour shift before being relieved. The shift began at 7:00 a.m. and lasted until 7:00 a.m. the next morning. Each platoon then had 48 hours off before reporting back to work. An additional day off was provided after every six scheduled shifts. Under city policy fire fighters were given six full days of vacation time each year. In addition, they were entitled to no less than 10 holidays per year. Fire
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fighters who worked on a holiday were compensated at double their usual salary while fire fighters who were not required to work on a holiday were not given any additional compensation or any additional days off. The fire fighters' union filed suit against the city disputing the amount of annual vacation time and paid holidays the city afforded them. The union claimed that the city violated Louisiana statute by not awarding each fire fighter 18 full days of annual vacation and 10 paid holidays regardless of whether they actually worked on those days. Trial court rendered a judgment in favor of the city and the fire fighters' union appeals.

HELD: Louisiana statute provides that fire fighters shall be entitled to annual vacation of 18 days with full pay. The dispute between the parties in this case arises from the definition of the term "day". According to the city, the term "day" is an average 8-hour workday. Under this definition, fire fighters would have to use three vacation days to take off a full 24-hour shift. Therefore, the fire fighter would be given only 6 full vacation days per year. According to the fire fighters' union the term "day" is meant to mean a full calendar day. Since a work shift spends two calendar days, 7:00 a.m. to 7:00 p.m., the union argues that a fire fighter must only use two vacation days to take off a full 24-hour shift. They would then be afforded nine full vacation days per year. Prior case law has interpreted the term "day" as used in the statute as a calendar day from midnight to midnight. Given the shift schedule of the fire fighters, their shift covers parts of two calendar days. Thus, they should only be required to use two vacation days to take off a full day of work. Similarly, the fire fighters cannot be required to use their annual vacation days on days when they are not scheduled to work. Fire fighters also claim that the trial court erred in holding that a fire fighter is entitled to 10 paid holidays regardless of whether or not the fire fighter is required to work on the holiday. Louisiana statute provides for double time compensation for fire fighters who are required to work on holidays. The same statute provides that each fire fighter shall be entitled to no less than 10

 holidays per year. Both the city and the fire fighters' union agree that an individual scheduled to work on a holiday is to be paid double time. The dispute arises over compensation for fire fighters who are not scheduled to work on a holiday. The practice is to compensate only those fire fighters who actually work on the holiday. The union argues that if a fire fighter is not scheduled to work on a holiday he should be awarded additional compensation or, in the alternative, an additional day off from work. Their position is that if a fire fighter is not scheduled to work on a holiday, he is in no way given credit for the holiday. Once again, prior case law holds that the intent of the statute was no more than to require a city to pay extra compensation only to fire fighters who actually were required to work on holidays. Statute does not place any restrictions on the city with regard to fire fighters who are not required to work on holidays. Thus, the city is not required to give any additional compensation to fire fighters not working on a holiday. Affirmed in part and reversed in part for the fire fighters. [Kenner Fire Fighters Association v. City of Kenner, 742 So.2d 989 (La.App. 5 Cir. 1999)]
Settlements

Des Moines, Iowa

fire fighters
Fire fighter salaries are expected to increase by more than one-third over the life of a tentative wage pact in Des Moines. The contract includes three annual raises of 6 percent followed by increases of 6.4 percent and 6.5 percent in the final two years of the five-year agreement. Des Moines fire fighters are expected to become the highest paid in the state by the end of the contract life. Also added to the pact is another holiday, Martin Luther King, Jr., Day.