May 2000
Volume 14, Number 5

Fire fighter deaths hit ten-year peak
According to data released earlier this month by the National Fire Protection Association (NFPA), 112 on-duty fire fighter fatalities occurred in 1999, marking the highest annual American fire fighter death toll since 1989 (118). The report cites an increase of 21 deaths from 1998 and also indicates that stress and overexertion, usually resulting in heart attacks, continue to be the leading cause of fatal injury for fire fighters.

"We need to recognize what has caused last year's increase in fatalities, and take the necessary steps to reverse the trend," said Rita Fahy, NFPA manager of fire databases and systems and co-author of the annual report. "Incident management, the use of PASS devices and accountability systems, safe driving practices, and increased attention to fire fighter health and fitness are essential to making real reductions in on-duty fire fighter fatalities."

The report shows 57 fatalities were attributable to stress and overexertion. The second-leading cause of death was entrapment, which resulted in 24 fatalities in 1999. Fire fighters being struck by objects produced 21 deaths. Of those 21 fatalities, 11 deaths were caused by motor vehicle crashes and eight deaths were the result of the victims being struck by motor vehicles at a fire scene.

 According to the NFPA, although on-duty fire fighter fatalities have declined over the past two decades, the rate of deaths per million structure fires has dropped only slightly while the rate of deaths in vehicle collisions per million structure fires while responding to alarms has more than doubled. The six-fatality structure fire in Worcester, Massachusetts, in December was the highest single loss of fire fighters in 1999.

The largest proportion of deaths, 50 percent, occurred on the fire ground. Twenty-nine percent occurred while responding to or returning from alarms. 

"It's possible that changes in equipment and clothing have allowed fire fighters to be more aggressive at fires," Ms. Fahy suggested. "However, the lack of on-scene accountability of personnel operating at the fire ground as one component of incident management has exposed fire fighters to greater dangers. Taking the time to re-evaluate departmental command techniques is an important means of reducing the risks which fire fighters are faced."

NFPA has tracked fire fighter fatalities for nearly 25 years. The report is updated annually and will appear in detail in the July/August issue of the NFPA Journal. 

Employer controls comp time use Supreme Court says
Nothing in federal overtime law prohibits a public employer from ordering an employee to use compensatory time, so said the Supreme Court earlier this month. The ruling dashed that hopes of a group of Texas deputy sheriffs who asserted that compensatory time earned from working overtime was a substitute for cash and thus, like cash, belonged to the employee once earned. Since an employer cannot lawfully control how an employee spends wages, the boss should not be able to tell the employee when to use earned comp time. Not so said the justices. While the Fair Labor Standards Act (FLSA) specifies the circumstances under which compensatory time must be credited to a public employee and the amount that may be accumulated, the law is largely silent as to controls placed upon
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comp time usage. Thus, nothing prevents an employer from ordering an employee to take the day off and charge the comp time account.

The case, Christensen v. Harris County, Texas, No. 98-1167, arose when the sheriff's department, concerned about its unfunded liability for accrued overtime, adopted a rule limiting the number of earned compensatory time hours that deputies could accumulate. Although the FLSA cap is 480 hours, Harris County Sheriff's Department set an internal limit of 240 hours. Any deputy who approached the limit was required to "burn" hours by taking time off. A group of 127 deputies brought suit over the matter. The deputies conceded that the FLSA was largely silent on the issue but argued that absent a prior agreement with the employer, once time is earned the employee controls when to use it, subject only to the requirement that employer's operations not be disrupted. The Department of Labor (DOL) in an advisory opinion agreed on the basis that the county had no contrary prior agreement with the deputies over comp time use. Case law in two other federal circuits had previously adopted this position. A Houston federal judge concurred with the deputies but the Court of Appeals for the Fifth Circuit reversed. 

On appeal, Justice Clarence Thomas, writing for the 6 to 3 majority, found that the DOL advisory opinion was not entitled to the high level of judicial deference given to more formal administrative rulings. The justices were not bound to follow DOL's interpretation of the law. Similarly, since the FLSA is silent on the question of forced comp time use, the county was not prohibited from ordering use of the accrued time to prevent cash liability. Otherwise, employers would have to pay cash in every instance where accrued time exceeded the 480-hour cap. Adopting this view, Justice Thomas suggested, would effectively nullify Congress' efforts to provide governmental entities flexibility in compensating their employees for worked overtime.

The Harris County Deputies' Organization, Local 154 of the International Union of Police

 Associations (IUPA), which backed the deputies' suit, has no labor contract with the county. Theoretically, each individual deputy reaches agreement with the county over whether to receive cash or compensatory time for worked overtime. Since the deputies enjoy only limited civil service protection, the employer essentially mandates the overtime rules. 

While the Supreme Court may have resolved the question of who controls compensatory time usage, justices showed no interest in reconsidering the constitutionality of the FLSA as applied to local government. After reading recent decisions that have limited the power of Congress to control state governments, some court-watchers had suggested that the justices might entertain reconsideration of the constitutionality of the FLSA. Neither Justice Thomas' majority opinion nor Justice Steven's dissent displayed any hint that the court held concerns about the FLSA's constitutional applicability to lower branches of government. 

Congress first made the FLSA applicable to local government in 1966. In 1976, the Supreme Court ruled that Congress lacked the power to regulate wages and hours of local government employees engaged in "traditional governmental functions." In 1985, the court reversed itself, finding no constitutional bar to applying the wage and hour law to all local government workers. Recent decisions that affirmed the retention of state powers under the Tenth Amendment and the limitations on federal courts to hear cases involving the states had raised speculation that justices might reconsider the constitutionality of the FLSA application to state and local government. 

Harris County Attorney Michael Fleming called the decision "a huge victory for local taxpayers," claiming the ruling will save the county up to $20 million in overtime costs. One of the deputies' attorney, Murray Malakoff, reacted, "It's a sad day for the working man. The bottom line is that they will bend the rules when the rules favor management." 

The ruling affects all public employees,
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including fire fighters and paramedics. Exempt employees, such as command level personnel, remain unaffected. 

Without a labor agreement containing contrary rules, public employers now possess the primary control over when compensatory time is used. Since comp time must be paid out in cash upon an employee's separation from service,

 governmental employers may choose to reduce unfunded liability by directing that employees use their accumulated time during lulls in demands for service. 

The International Association of Fire Fighters, AFL-CIO, had filed an amicus curiae (friend-of-the-court) brief in the case supporting the deputies' legal position.

Congressional committee holds hearing on bargaining bill
Each session of Congress for over a decade has seen a national public safety bargaining bill introduced, but the proposals have never received serious consideration. Things were different May 9 when for the first time ever the House Subcommittee on Employer-Employee Relations held a hearing on such a bill, H.R.1093.

The hearing represents a major victory for public safety unions. Collective argaining for fire fighters has been a cornerstone of the International Association of Fire Fighters, AFL-CIO, (IAFF) legislative effort for many years. The bill is also being pushed by the Fraternal Order of Police and several other law enforcement labor groups. An IAFF representative was among the committee witnesses.

Representative John Boehner (R.-Ohio), the committee chairman, opened the hearing by stating that he personally had serious concerns about the desirability of the legislation but had granted the hearing out of respect for the work of fire fighters and police officers. 

Testifying for the IAFF was Frederick Nesbitt, Director of Governmental Affairs. Also testifying in favor of the bill was Gilbert Gallegos, President of the Grand Lodge of the Fraternal Order of Police. Presenting evidence in opposition was Gene Kinsey, Mayor of Grand Junction, Colorado, and Chicago labor lawyer Theodore Clark.

Accompanying Nesbitt were several IAFF members, including Matt Moseley, an Atlanta fire fighter who gained national television coverage last year as he was lowered on a cable from a helicopter

 to rescue a worker from a burning building. Also in the entourage was Michael Regan, a Fairfax County, Virginia, fire fighter and member of the federal rapid response team that travels around the world performing rescue missions. The IAFF official used the two men as examples of brave fire fighters who do not enjoy bargaining rights.

The opponents of the bill argued that the proposal constituted an unconstitutional infringement on state sovereignty and would place an unreasonable financial burden on local governments.

H.R.1093, which the IAFF helped draft, would impose minimum bargaining rights for public safety employees in states that do not currently permit bargaining. The Federal Labor Relations Authority would be responsible for monitoring state laws to ensure compliance with the federal standards. Under the proposal, public entities would have to bargain with fire and police unions and enter into a labor contract. However, in a compromise effort to gain broader support for the bill, strikes are banned and fact-finding and mediation, not binding arbitration, are the remedies for any impasse in negotiations.

The proposed law has the bipartisan support of 240 cosponsors in the House of Representatives, more than a majority of the members. However, only 17 sponsors have signed on in the Senate, clouding the bill's future for the foreseeable future.

The next step in the legislative process would be approval of the measure by the entire Committee on Education and the Workforce. 
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Tax problems tie up Worcester fire fighter donations
Touched by the deaths of six Worcester, Massachusetts, fire fighters in a warehouse fire last December, thousands of people have donated at least $8.5 million to a variety of funds to assist the dead men's families. Yet, it now appears that the survivors may see little of the money. The culprit? The taxman. 

Internal Revenue Service (IRS) regulations prohibit a nonprofit organization from making individuals wealthy. Because there is so much money, some of it may have to be diverted to other uses.

"The fund grew far beyond any expectations of what it might be," said Thomas Cole, a spokesman for the Worcester Telegram & Gazette newspaper, which set up the primary charitable fund. "I have to acknowledge that there's a possibility that the families will not receive all of it." 

So far the newspaper's fund has collected about $6.4 million. The newspaper is working with the IRS and tax advisers to try to clear legal hurdles and distribute funds to the families of the victim fire fighters. 

The distribution problem comes from the nonprofit status of the fund. Donations to recognized nonprofit organizations are deductible

 from federal income tax returns. The 43,000 contributions to the fund were thus deductible from the donors' tax returns. But, IRS rules do not intend for nonprofit groups to benefit only a few people. "The hallmark of a tax exemption is that it has to benefit the community in general," Sally Kaplan Levy, a tax attorney, told the Boston Globe. "If there's millions of dollars and only six families, the IRS is going to look at the amounts going to individuals," Ms. Levy stated.

The families have not gone without, however. Another fund, established by the fire fighters' credit union, received nearly 20,000 contributions and dispersed more than $2 million. The Salvation Army is preparing to distribute $171,000 it collected.

The December 3 fire was the worst loss of life among fire fighters in more than 20 years. Seventeen children were left fatherless by the tragedy. President Clinton and Vice President Gore as well as fire fighters from across the nation attended a memorial service that attracted 40,000 mourners.

Telegram & Gazette officials plan to set up a community board independent of the paper to make decisions about how to disperse the funds.

D.C. rejects five fire fighters per truck; acting chief resigns
"How do you budget a human life" read a sign carried by one of 200 District of Columbia fire fighters during a protest march May 8. About 200 fire fighters demonstrated against the District's financial control board's rejection of a proposal to add a fifth fire fighter to ladder trucks, a move fire department officials argued would save lives. Following the vote, the interim fire chief abruptly resigned. 

Thomas Tippett, a 32-year veteran fire fighter and former union official, moved quickly to implement changes in the department following being named interim chief. He proposed creation

 of paramedic engine companies and ultimately cross-training of fire fighters and paramedics. But, most recently he pushed for adding the fifth fire fighter and restoring battalion chief aides. With the support of Mayor Anthony Williams, Tippett submitted a $4 million budget request for the additional personnel. The financial control board, an entity created by Congress after the city's financial condition deteriorated, vetoed the proposal. At that point, Tippett said goodbye.

In his resignation letter to the mayor, Tippett said, "I have made a solemn promise to the fire fighters of this city and to their families that I would
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do everything in my power to improve safety and not unnecessarily place my employees in harm's way. Therefore, I cannot in good faith carry out the directive." 

The D.C. Fire Department has seen the death

 of three fire fighters in two different incidents in the last two years. The fifth fire fighter on ladder trucks and the battalion chief aides were recommendations that emerged from studying the fatal fires.
Litigation
refusal to pay constitutes a breach of contract. In contract actions, the time of the breach controls individual rights, not the time the actual damage results. The breach of contract, if any, occurred when the city altered the ordinance in 1979. Georgia recognizes a six-year statute of limitations for breaches of contract. Since more than six years have lapsed since the alleged breach, Seagraves' and Daniels' claims are barred by statute of limitation. Reversed for city. [City of East Point v. Seagraves, 524 S.E.2d 755 (Ga. App. 1999)]

Supreme Court update
In addition to the Christensen decision, a petition for review has been filed with the court in Velardi v. New York City Fire Department Pension Fund. A former fire fighter is asking the justices to overturn a lower court finding that the Americans With Disabilities Act of 1992 does not apply retroactively to a claim that arose in 1975. The high court has yet to act on the petition.

Cases of interest

Worker's compensation

Sick leave
Camp was employed as a battalion chief on the fire department. He sustained an injury in the performance of his job. He subsequently filed for and received worker's compensation benefits. Approximately 10 years later, the city sought to modify his benefits, alleging that Camp had failed to return to work when the city offered an appropriate job to him. Specifically, the city offered him the position of fire dispatcher, which Camp refused, claiming that he could not sit for any extended period of time. At a hearing on the matter, the worker's compensation judge found that Camp could perform the dispatcher job and had failed to act in good faith on the job referral. Thus, the city was entitled to reduce his compensation payments as well as being entitled to a substantial credit for funds overpaid to him. Former fire fighter appeals.

HELD: Camp contends that were he to accept the dispatcher position, he would lose a substantial monetary benefit. The value of the pension he currently received exceeded the value of the pay of a fire dispatcher. Under Pennsylvania
Seagraves and Daniels began employment at the city in the early 1970's. At that time a municipal ordinance granted compensation to employees upon their retirement for all unused sick days. In 1979, however, the city amended the ordinance to provide that unused sick leave accrued after December 31, 1978, would not be compensated at retirement. When Seagraves and Daniels retired some 15 years later, they were paid for the unused sick leave accrued prior to December 31, 1978. They were not compensated for any sick leave after the date of the new ordinance. The two former employees filed suit arguing that the ordinance change was a breach of contract and they had a vested right in compensation for their unused sick days. Trial court ordered city to pay for the additional sick days. City appeals.

HELD: Seagraves and Daniels contend that their right to be compensated for all unused sick leave vested when they began working under the terms of the original city ordinance. Thus, the city's
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law, an employer seeking to modify a worker's compensation claim must produce evidence that there is an open job which fits the occupational category for which the claimant has been given medical clearance. Here, Camp argues that an individual should not be required to take the alternate position if acceptance of the position would result in a loss of a qualitative benefit. He contends that his pension is a qualitative benefit to which he contributed and which exceeds by $5,000 a year the wages that he would receive if he took the fire dispatcher job. On the other hand, if he were reemployed by anyone other than the city, his pension would continue. The record in this case, however, shows that the hearing judge did not consider this particular question. Case is remanded for worker's compensation judge to determine if the fire communications dispatch position was actually available to Camp in light of any detrimental affect on his battalion chief pension. Reversed for fire fighter. [Camp v. Worker's Compensation Appeal Board (City of Philadelphia), 746 A.2d 1219 (Pa. Cmwlth. 2000)] from fire fighters having to live within a 25-minute response time to the headquarters station to now having to reside with a 25-mile radius of the center of town. Local 49 of the International Association of Fire Fighters, AFL-CIO, represented the 82 employees covered by the agreement. 

Murrieta, California

fire fighters
A new three-year contract giving Murrieta fire fighters immediate raises ranging from as high as 18 to 23 percent was approved last month by city council. Some fire fighter salaries jumped by $17,000. Under the new pact, the maximum fire fighter salary jumps to $44,738 annually, an 18 percent boost. Engineers gain a 20 percent raise while fire captain's salary increased by 23 percent. The sharp increases, retroactive to March 1, were necessary to bring salaries in line with area departments. The fire fighters' union is the Murrieta Fire Fighters Association, Local 3540 of the International Association of Fire Fighters, AFL-CIO.
Settlements

Providence, Rhode Island

fire fighters

Bloomington, Illinois

fire fighters
 The new two-year labor pact between the City of Providence and its fire fighters' union extends health benefits to "domestic partners" and partners of the same sex. The city's mayor supported the provision because of the diversity of the community. This provision is a first for fire fighter labor agreements in Rhode Island. Key economic provisions of the agreement include an immediate non-retroactive pay hike of 3.25 percent followed by a 3.75 percent pay boost on July 1. Resolution of grievances will no be given 30 days, up from the previous 10 days, before being sent to an arbitrator. The parties also pledges to resolve remaining differences on pension and cost-of-living increases through bargaining and mediation before proceeding to binding arbitration. Local 799 of the International Association of Fire Fighters, AFL-CIO, handled negotiations for the fire fighters. 
Bloomington city officials and the fire fighters' union have agreed to a three-year labor pact in only five bargaining sessions in less than two months. Both parties attributed the brisk pace to "interest-based bargaining" wherein each side dropped inflated proposals and placed all issues up front. The pact calls for 3 percent wage hikes in the first two years with a wage reopener for the final year. Effective May 1, pay for fire fighters began at $31,823 while veteran captains now earn $59,161. During negotiations, the union swapped a change in premium health care coverage for an added personal day off. Left open for future discussions was establishment of a wellness and fitness program. The contract does change the residency requirement