April 2000
Volume 14, Number 4

Sickout hits Louisiana fire department
On April 1, 64 Lafayette, Louisiana, fire fighters were scheduled to report to work. Thirty-four called in sick and ten others went home claiming illness. An April Fool's joke? Apparently not. City officials suspect a job action at the hands of the fire fighters' union, a charge the union denies. 

"This is not a union action," said Donald Chauvin, the union president. "This was not union organized. We really have no information as to why this is happening." Chauvin himself worked his tour of duty on April 1.

The job action continued for three days and involved about two-thirds of the 192 fire fighters scheduled to work the weekend. Approximately $36,000 was expended to cover overtime costs. City officials expressed dismay that some fire fighters called in sick on their regular shifts and then worked

 overtime the next day.

Fire fighters are apparently unhappy with the city's pay plan which compensates them at a rate less than police officers. Additionally, the city administration is proposing cutting 20 fire fighter positions. The department employs 230 fire personnel.

Union chief Chauvin, in a letter to city leaders, requested a meeting to discuss granting recognition to the union and collective bargaining rights to fire fighters. Fire Chief Robert Benoit said Chauvin bypassed the chain of command in writing the letter directly to city officials. 

Meanwhile, the city has announced that the Louisiana State Police will investigate possible intimidation of fire fighters during the sickout. The local police will investigate any policy violations.

Smoking costs jobs of Wichita fire fighters
Two Wichita, Kansas, fire fighters have been terminated for violating a department policy that prohibits smoking on or off the job. One of the fire fighters, Larry Osterhout, an 18-year veteran, was the city's chief fire inspector. The other, Gary Simpson, had served for five years. Osterhout is reportedly considering legal action over his termination.

Both men signed a letter when hired stating that they would not smoke. The policy, which went into effect in 1981, is designed to promote good health and to allow fire fighters seeking disability pensions to more easily establish that heart, lung, or respiratory illnesses were job-related. Fire fighters hired before 1981 are not barred from smoking. About 30 of the city's 360 fire fighters are smokers.

 The fire fighters' union, Local 135 of the International Association of Fire Fighters, supports the no-smoking efforts but objects to the sanction, claiming that the punishment for smoking is more severe than the punishment for illegal substance abuse. Fire fighters with substance abuse problems are not fired but referred to an employee assistance program.

Osterhout, a smoker prior to joining the department, said he returned to the habit following his divorce. Several days before being fired he was told that someone had seen him smoking. He does not know whether he was caught on duty or off.

Fire Chief Larry Garcia said he wholeheartedly supports the smoking ban, noting that heart attacks are the leading cause of death among fire fighters.
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Texas rejects limitation on at-will status
The Texas Supreme Court has declined an opportunity to afford at-will public safety employees some measure of procedural due process. The state's highest court earlier this month rejected the argument that a public employer owed its at-will employees a duty of good faith and fair dealing and could make adverse personnel decision only for cause. 

The ruling, City of Midland v. O'Bryant, involved five police officers who were notified that their positions were being reclassified as civilian slots because of financial reasons. The officers were given the opportunity to apply for an intra-department transfer or remain in their current jobs but as non-sworn personnel. If the latter option were taken, pay would be reduced. The officers sued the city and the chief of police under a variety of legal theories, including an alleged breach of an implied covenant of good faith and fair dealing. The city urged the court to reject the claim, arguing that no such cause of action exists in Texas in the context of public employment. 

Like most Texas peace officers and fire fighters, Midland officers are not protected by a

 labor agreement. Rather, they are considered at-will; subject to limited exceptions, they can be terminated for any reason or no reason. Texas law has traditionally treated at-will employment as a form of contractual relationship.

State Supreme Court Justice Priscilla Owen, writing for the court, agreed with the city's position. She noted that some states had extended the concept to employer-employee relationships. But, prior Texas case law has rejected the idea that every contractual relationship creates a duty of good faith and fair dealing. The requirement has been applied in disputes between insurers and their clients. However, in this relationship the bargaining power of the parties is unequal; the nature of insurance contracts creates the potential for unfair treatment of the insured. If an insured suffers a loss, he cannot easily obtain coverage from a different insurance carrier. However, a public employee who perceives that he has been treated unfairly or has been demoted, transferred, or discharged may seek alternative employment. Thus, as at-will employees, the officers have no enforceable claim against the city on this issue. 

Binding arbitration adopted in Delaware
Binding arbitration for fire and police labor disputes is now the law in Delaware. Last month, Governor Thomas Carper signed legislation providing binding arbitration for state and local government workers when an impasse arises in contract negotiations.

Under prior law, a fact-finder's determinations were advisory and could be ignored

 by the parties. The new statute utilizes a "last-best offer" procedure. Each side will submit its best offer and the arbitrator must then choose the employer's or the union's proposal in its entirety.

To ensure that the arbitrators are accountable to Delaware taxpayers, only members of the state labor board may serve in that capacity. The law contains a four-year sunset provision.

Female fire fighters protest hair standard
Orlando's 27 female fire fighters are criticizing an order to cut their hair, claiming that the policy is a throw back to a time when women were not welcome in the fire service. But, Fire Chief Charlie Walker says he is just enforcing the department's existing grooming standards.

Under a rule adopted in 1989, female fire fighters' hair cannot extend more than four inches
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below the collar. Men's hair cannot extend below the collar. In 1996, the fire fighters' union was told that the standard applied only when personnel were on duty. Hair pinned above the mandated limits was acceptable. Many female fire fighters grew their hair beyond the limit but pinned it up prior to reporting for duty.

Walker, who took his post in November, changed the rule's interpretation last month. "All

 women are to have their hair cut to conform to this order," he said in a memo to fire fighters.

City officials said the new interpretation was done for safety reasons. But, Suzie Paxton, an 18-year veteran fire lieutenant who will cut four inches off her hair, saw it differently. "This is the fire department sending a message to the women out there, `Don't come here unless you want to look like a man,'" she said.

Fairbanks fire fighters were forced to quit court says
The Alaska Supreme Court last month sided with two Fairbanks fire fighters who claimed they were compelled to resign their jobs because of intolerable working conditions. The state's high court affirmed a $496,000 jury verdict obtained after the men sued the city in 1997. 

The matter began in 1994 when fire fighters Jim Rice and Lee Despain reported to the city that the public safety director was overstating compensatory time. Upon learning of the report, the director called an attorney who had previously represented the two fire fighters and threatened to retaliate against the men. Included in the conversation was an insinuation that the two men might be "set-up." The attorney reported the call to the city manager who refused a request to place Rice and Despain on administrative leave until the issue was resolved. Because of longstanding animosity between the two fire fighters and city officials, Rice

 and Despain worried that they might indeed be framed for a crime. Consequently, the two 20-year veterans decided to resign from the department.

A subsequent whistleblower suit resulted in the monetary award. On appeal, the Alaska Supreme Court noted that to prove constructive discharge, employees must show that reasonable persons in their position would have felt compelled to resign. The unanimous court found that the fire fighters had carried the burden of proof on this issue, particularly since a former police officer testified that he had told the fire fighters that the police chief had access to marijuana that could be used to frame them with a crime. 

In endorsing the jury's verdict, the appeals court found that the fire fighters were not required to exhaust their administrative remedies under the collective bargaining agreement prior to filing a state whistleblower suit.
Litigation

Cases of interest

Civil liability
While visiting a friend, Ramirez began to sweat profusely, pace the floor, and say people were trying to kill him. He had been using cocaine and alcohol that evening. He kicked out a window screen and jumped two stories to the ground, fracturing his heel. He limped across the street to a bar. Upon observing Ramirez and his agitated state, the bartender summoned the police. Before the police arrived, a fight broke out involving Ramirez, the bartender, and several patrons. When two Chicago police officers arrived at the scene, they seized Ramirez and handcuffed him behind his back.
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They dropped him face down on the street while cuffed, restricting his breathing, and hit him twice in the head with nightsticks. Sometime during the process the officers called the Chicago Fire Department. Two fire department paramedics, Leon and Janozik, were dispatched to the scene. When they arrived, however, they refused to treat Ramirez or transport him in their ambulance. The police officers subsequently transported Ramirez in the police car to a nearby hospital. On arrival at the hospital it was determined that Ramirez was dead. An autopsy determined the cause of death was asphyxiation from being handcuffed while intoxicated on alcohol and cocaine. Ramirez's next of kin filed suit against the city, the police officers and the paramedics. It was claimed that the officers and paramedics conspired to deprive Ramirez of his constitutionally protected civil rights by failing to provide medical attention. Defendants, including paramedics, move for summary judgment.

HELD: To prevail in a civil rights claim the plaintiff must establish that Ramirez was deprived of a constitutionally protected right under color of law. Paramedics in this case argue that they have no liability for Ramirez's death because Ramirez was not in their custody but within the custody of the police department. They claim they did not suddenly acquire a duty to treat a man who was not in their custody. Public employees, such as the paramedics, who are dispatched specifically to aid Ramirez do acquire a constitutional obligation to aid him when the police, also public employees, take him into custody. The police department is the agency designated by the state to take persons into custody and the fire department is designated with the responsibility to provide medical care for persons in need. Indeed, the Chicago Fire Department paramedics have a duty to aid persons who are injured while in the custody of the city police, the county sheriff, or the state police. They cannot avoid liability by attempting to disperse responsibility to other public agencies. The paramedics also contend they did not act "under color of law" as required to establish a civil rights violation. Prior case law,

 however, establishes that the phrase "under color of law" is now so broad that it means the same thing as "state action." Paramedics as government employers are state actors. The fact that a private paramedic might have no liability in a similar situation makes no difference. The paramedics also argue they are entitled to qualified immunity. Qualified immunity is granted when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. The paramedics argue that it was not apparent from previous law that they had a constitutional duty to treat Ramirez and, thus, they did not knowingly violate the law. Hence, they claim they are entitled to qualified immunity. However, it would have been apparent to a reasonable fire department paramedic that he had a duty to provide medical care to a person in the custody of the police. The common sense, natural, and obvious view is that if an individual is in custody when paramedics arrive and therefore not free to seek other forms of assistance, then paramedics should be liable for failing to treat his injuries. The Constitution does not always require the decent thing; sometimes it even protects abhorrent behavior, but not here. In this case, a reasonable person would have known that the right thing was also demanded by the law. Summary judgment for paramedics denied. Matter to proceed to trial. [Ramirez v. City of Chicago, Illinois, 82 F.Supp.2d 836 (N.D. Ill. 1999)]

Worker's compensation
In early 1995, Ledford, a veteran fire fighter, experienced chest pains and tingling before going to a fire. He had felt the same tightness in his chest a year earlier while undergoing training for a survival course. The following month he participated in fighting an industrial fire where he experienced some minor smoke inhalation. Ledford returned to duty less than a week later. Over the next several months Ledford was dispatched to various fires. At one structural fire he discovered that a person had died. He sat on the back of the fire truck claiming that psychologically he could not fight the fire. In
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another incident he was dispatched to an automobile accident scene in which there were multiple fatalities. He claimed that he experienced psychological trauma from witnessing the multiple deaths and hearing the screams of one accident victim. In neither case did he suffer any physical injury. Ledford also reported incidents of panic attack when putting on a breathing mask over his face. Ultimately, the fire fighter filed for disability benefits, claiming that he suffered post-traumatic stress causing anxiety disorder. A hearing officer determined that the fire department had no liability for Ledford's claim because he had not suffered physical injury. Appeals court upheld the rejection of the claim. Another appeals court, however, reversed finding that Ledford's psychological problems began following the initial smoke inhalation episode. The fire department appeals.

HELD: Under Georgia law, a psychological injury is compensable only if it arises naturally and unavoidably from some discernible physical occurrence. A claimant is entitled to worker's compensation benefits for mental disability and psychic treatment which, while not necessarily precipitated by a physical injury, arose out of an accident in which a compensable physical injury was sustained. Here, Ledford had the burden of proof to establish that his psychological problems arose out of an accident in which he suffered some physical injury. He failed to carry that burden of proof. In fact, Ledford, a 21-year veteran, admitted in his testimony that his psychological problems began early in his fire fighting career. Since he failed to establish that the psychological injury was the result of a physical injury, he is not eligible for worker's compensation benefits under Georgia law. [Columbus Fire Department v. Ledford, 523 S.E.2d 58 (Ga. App. 1999)]

 from the fire. In so doing, water was spilled on the roadway. This spilt water subsequently froze. Some time later, Spruill, driving his Corvette, hit the ice and skidded off the roadway. He was injured and his automobile was damaged. Spruill filed suit against the volunteer fire companies for their alleged negligence. Trial court entered a judgment for the fire companies on the basis of statutory immunity. Appellate court, however, reversed that finding. Fire companies appeal.

HELD: North Carolina statute provides that "[a] rural fire department, or a fireman, who belongs to the department shall not be liable for damages to persons or property alleged to have been sustained and alleged to have occurred by reason of an act or omission, either of the rural fire department or the firemen at the scene of the reported fire, when that act or omission relates to the suppression of the reported fire or to the direction of traffic or enforcement of traffic laws or ordinances at the scene of or in connection with the fire, accident, or other hazards by the department or the firemen unless it is established that the damage occurred because of gross negligence, wanton conduct or intentional wrongdoing of the rural fire department or the firemen." It is apparent from this statute that the overall purpose was to protect rural volunteer fire departments from liability for ordinary negligence when responding to a fire. The plaintiff in this case claims that a reading of the statute limits the department's immunity only to events that occur "at the scene of a reported fire." A closer reading of the statute, however, requires a broader interpretation. In order for the immunity to attach, the act or omission must be related to suppression of the reported fire or to the direction of traffic. If the legislature in enacting the statute had intended to limit the immunity from suit only to events occurring at the scene of a reported fire, the statute would have been constructed in a different manner. It is clear that in order for immunity to apply to a rural fire department, the statute merely requires that the department's act or omission relate to the suppression of the reported fire. So long as the fire

Civil liability
Two volunteer fire companies responded to a reported fire on a rural paved road late one March evening. Fire fighters stopped to fill the tanks of their trucks at a hydrant approximately one-half mile
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department's actions are related to the suppression of the fire, it is irrelevant whether the alleged negligence occurs precisely at the scene of the fire. Here, the negligence occurred while the fire departments were filling their tanks to respond to a fire. Thus, their behavior related to the suppression of the reported fire and the departments are entitled to immunity from suit under North Carolina law. Reversed for fire departments. [Spruill v. Lake Phelps Volunteer Fire Department, 523 S.E.2d 672 (N.C. 2000)] Oregon denies benefits to employees who are going to or coming from work because those injuries are not considered to have occurred in the course of the employment. The reason for this rule is the employer exercises no control over the worker and the worker is rendering no services for the employer. The fire fighter in this case argues that because fire fighters travel from one station to another, traveling across town is part of a fire fighter's duties. While it may be true that traveling across the city is part of a fire fighter's work, the injury in this case did not occur while Alltucker was acting as a fire fighter. The fact that he was traveling from one station to another is not relevant. If he had telephoned in, in accordance with city policy, to determine where he was scheduled to work, he would have discovered he was scheduled to work at Station 5, not Station 2. If his injury had occurred while he was bicycling from home to Station 5, that injury would not be compensable due to the going and coming rule. The court sees no reason why the result should be different simply because the fire fighter failed to call in that morning and first reported to the wrong station. Dismissal of claim affirmed. [Alltucker v. City of Salem, 993 P.2d 159 (Ore. App. 1999)]

Worker's compensation
As a fire fighter and paramedic Alltucker worked alternating shifts at either one assignment or another. He was subject to assignment to any of the city's firehouses. While the work schedules were established monthly, the city issued a daily report covering last minute changes of assignment. For this reason, fire department employees were expected to call in each morning to verify the location to which they were to report for work. One particular morning Alltucker did not call in to check for schedule changes. Instead, he reported to work at his scheduled assignment, Station 2. When he arrived, Alltucker discovered that the schedule had changed and he was to report for work at Station 5. He left Station 2 and rode his bicycle to Station 5. En route, the fire fighter had a bicycle accident and injured his forearm. He filed for worker's compensation benefits. The city denied the claim arguing that he was not injured in the course and scope of his employment. A hearing officer set aside the denial but the full worker's compensation board reversed, siding with the city. Injured fire fighter appeals.

HELD: Oregon worker's compensation law defines compensable injury as one arising out of and in the course of employment. It is a well-established law that the "in the course of" prong concerns the time, place, and circumstances of the injury. Likewise, it is also well established that the "arising out of" prong requires a causal connection between the injury and the worker's employment.

Bargaining subjects
The city and the fire fighters' union were parties to a collective bargaining agreement. In 1991 the fire chief decided to revise the department grooming standards. He formed an employee committee for the purpose of creating a questionnaire to survey fire fighters. Based on the survey results the revised grooming standards were created and implemented. The chief did not consult the union about forming the committee, issuing the questionnaire, or revising the grooming standards. The city refused to rescind the implementation of the grooming standards when the fire fighters' union objected. About the same time, the city established a point accrual system for auto accidents involving city vehicles. This system looked at off-duty driving violations as well as on-duty driving violations. Under the new policy if the city suspected a fire 
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fighter was unable to safely drive, he was subject to a compulsory mental or physical exam. When the city refused to change its position on the grooming standards and the vehicle accident rules, the association filed suit claiming that both issues should have been subject to bargaining under Texas law. Trial court granted summary judgment to the city on the grooming standards question, holding that the city did not violate any statutory duty by forming the employee committee. Trial court did hold, however, that the new vehicular accident rules affected fire fighters conditions of employment and were subject to bargaining. Both parties appeal.

HELD: Texas law imposes a duty on the city and the union to bargain collectively and in good faith regarding "compensation, hours, and other conditions of employment." The duty imposed by state law is the same duty imposed on private sector employers and labor unions by federal labor law. In cases arising under federal labor law the Supreme Court has recognized that Congress left the term "wages, hours, and other terms or conditions of employment" undefined in order to reflect industry standards, the social and political climate at any given time, the needs of employers and employees, and many related factors. With respect to the limitations on what should be considered mandatory subjects of bargaining, the court has stated in broad terms that the limitation includes only issues that settle an aspect of the relationship between the employer and the employees. Under state employment laws related to public employees, a recognized limitation on mandatory bargaining is the concept of management prerogative, which involves issues of policy that should be exclusively reserved to a government's discretion. No prior Texas cases exist that have discussed the proper test to use in determining whether a subject is a condition of employment or a management prerogative. A review of case law from other states leads to the conclusion that a balancing test should be applied. A proposed bargaining subject constitutes a condition of employment only if it has a greater effect on working conditions than on management

 prerogatives. In the present case, the new grooming standards altered the requirements for mustaches, regulated the use of wigs and toupees, and specified in greater detail acceptable hairstyles. For the first time, standards for length of fingernails and use of jewelry were established. Prior standards were designed to help establish a positive public image for the fire department as well as promote safety related to a fire fighter's uniform and job duties. Inherent in the policy's purposes is the appearance of professionalism and the pride and prestige that comes from being a fire fighter. These types of concerns are largely subjective in nature and directly reflect a reasonable departmental policy. On the other hand, the policy's effect on working conditions is minimal. The individuality associated with wearing cosmetics, jewelry, or a certain type of hairstyle or moustache is of little consequence in the fire fighter's ability to perform his or her job. The revised grooming policy does not constitute a condition of employment and the city was under no obligation to bargain over the matter. As to the vehicle accident review rules, the balancing test is also applied. If the rule had a greater effect on working conditions than on management prerogatives, then it can be characterized as a condition of employment and the city would be required to bargain on the subject. The evidence at trial showed that approximately one-third of the city's fire fighters are required to drive. Thus, the implementation of any rule that would affect their ability to drive could have a significant effect on the fire fighters working conditions. In contrast, the city has significant safety interests that fall within its management prerogatives. The city has a genuine interest in assuring that individuals who drive large pieces of equipment, such as fire apparatus, are capable of doing so in emergency situations. When applying the balancing test to this situation, the management prerogatives prevail. The city has a right to implement rules or policies that help promote public safety. Public safety should not be a mandatory subject of bargaining. Unlike a private employee, the performance of a public employee,
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such as a fire fighter or police officer, directly affects the welfare of public citizens. A union should not be given an unlimited right to demand collective bargaining on issues that have a potentially strong effect on public safety. The city did not violate any statutory duty to bargain over these topics. Judgment for city. [Corpus Christi Fire Fighters Association v. City of Corpus Christi, 10 S.W.3d 723 (Tex. App. - Corpus Christi 1999)] agreement, retroactive to May 31, 1998, awards the nearly 1,500 fire service personnel a 3 percent wage hike the first year and 4 percent raises in each succeeding year. The award from a state arbitrator ends several years of negotiation between the city and Local 67 of the International Association of Fire Fighters. The arbitrator sided with the union on three of the four issues submitted for consideration. The only point rejected was the union's request that the city not be able to discipline fire fighters who fail to meet fitness standards. The union wanted the provision struck from the contract. One point upheld by arbitrator Harry Graham was the "position for position" requirement. This rule limits working out of classification and requires fire officers of equal rank to fill in for absent fire officers at night. The award also increases pay differentials across ranks from 16 percent to 18 percent. Current pay ranges from $25,958 for starting fire fighters to $39,707 for veterans.
Settlements

Brunswick, Maine

fire fighters
A pay raise and while reducing work hours highlights a new labor agreement between the city and fire fighters in Brunswick. A four-year contract will grant pay hikes of two percent each year. Additionally, over the term of the agreement the 50-hour workweek will be pared to 46 hours. Since pay is calculated on an hourly basis, fewer work hours would normally mean less pay. However, using a complicated formula, both sides agreed to determine base pay by dividing the pay rate by 49 the first year, 48 the second, 47 the third, and 46 the fourth year. Overtime will be paid for weekly hours that exceed the respective numerical standard for each year. Thus, by the final year of the contract any time worked over 46 hours in a week will be treated as overtime. The contract increases the educational incentive pay from $8 to $11 per credit hour at year four. Beginning July 1, 2001, fire fighters with more than 20 years of service will be paid an additional $25 per week. By the end of the contract term, a fire fighter/paramedic will be earning a base of $639.33 weekly. Local 340 of the International Association of Fire Fighters handled the negotiations.

Minneapolis, Minnesota

fire fighters
A new contract will grant Minneapolis' 500 fire fighters a series of four annual raises. The two-contract pact, which awaits final city council approval, will provide a 3 percent retroactive wage hike, followed by boosts of 3.05 percent, 3.15 percent, and another 3.15 percent in successive years. By the end of the agreement's life, a beginning fire fighter will earn a base of $35,392 while a seven-year veteran will draw $52,970. Annual uniform allowance increases to $750 in two steps during the contract term. In an unusual provision, the pact grants the fire fighters' union, Local 82 of the International Association of Fire Fighters, the authority to discipline members who behave in a hostile manner. The disciplinary action would not be subject to the grievance process.

Columbus, Ohio

fire fighters
Columbus fire fighters have a new three-year contract but the first two years are almost over. The