September 2000
Volume 14, Number 9

Schaitberger outlines view to chiefs
In his first major public speech since being elected General President of the International Association of Fire Fighters (IAFF), AFL-CIO, Harold Schaitberger told the nation's fire chiefs that while the IAFF remains anxious to work on issues of mutual concern, "We are a labor union." Speaking at the International Association of Fire Chiefs (ICHIEFS) meeting in Dallas last month, Schaitberger described the perspective he will follow in leading the union during his term of office. "The IAFF is not a trade or fraternal association. We are a labor union and we have an absolute duty and responsibility to our members. Our sole purpose is to represent their interests," Schaitberger told the chiefs. "I will not hesitate to use the power of my office and the power and influence of our union to protect the interests of every IAFF member and every IAFF affiliate throughout the United States and Canada."

In a more conciliatory mood, Schaitberger noted numerous times when the international union and the chiefs had worked together to accomplish common goals, such as the joint wellness-fitness program and the candidate physical ability test. He praised the fire department managers who "understand the problems fire fighters face" and who have "waged many battles on their behalf with the public officials, the bureaucrats, and the bean

 counters who don't understand."

"It is no secret that the IAFF's top legislative priority is the passage of a national collective bargaining bill for all professional fire fighters," he told the ICHIEFS group. "Experience has shown that when fire fighters can discuss workplace issues with their employer, partnerships and cooperation can develop which leads to improved labor-management relations and better cost effective delivery of fire and EMS services."

Schaitberger also called for passage of NFPA 1710 Standard on Organization and Deployment for Career Fire Departments. He said research shows that widespread problems exist in staffing, response times, and resource allocation in the nation's fire department. Implementation of the proposal standard from the National Fire Protection Association (NFPA) would help alleviate those problems. He urged the chiefs to support the proposal at the NFPA meeting next spring.

In closing, the IAFF leader told the chiefs that they had nothing to fear from their local union or from an IAFF organizing effort in their community. He also assured the assembly he would be true to his word. "If I say the IAFF will cooperate with you, we will. If I say the IAFF can't, we won't. What I can assure you is that you will always know where we stand."

Binding arbitration awaits California governor's signature
California lawmakers last month approved a bill granting binding arbitration to fire fighter and police unions in wage disputes. The bill now awaits the signature of Governor Gray Davis before becoming law. The governor, who has taken no public position on the measure, has until the end of the month to sign it into law. The bill, which has been several years working its way through the legislative process, mandates establishment of an arbitration panel in cases of impasse over fire fighter or police wages and benefits. The parties would submit last-best offers on each contested issue. The panel would then select the submissions that best comply with
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specified statutory factors, such as the employer's ability to pay, the rate of inflation, wages in comparable jurisdictions, and the peculiarities of the job. Any panel decision could be amended by the parties prior to it being made public.

The proposed law does not provide for arbitration of non-economic items, such as working condition disputes nor discipline and grievance actions.

Under the bill, each party to the negotiations will appoint a member of the arbitration panel and the two panel members will select a third person to serve as chair. If the two appointed members cannot decide on a chair, the bill specifies a procedure that involves striking names from a seven-person list established by the American Arbitration Association. The panel is granted subpoena power and authority to examine the records of the employer and the employee organization.

Passage of the measure brought an

 immediate retort from the League of California Cities: a threatened lawsuit. League officials claim the measure violates the state constitution because it removes control of 60 percent of a city's budget (e.g., personnel costs) and places it in the hands of non-elected arbitrators. Another critic, state Senator Ray Haynes, a Republican, said the measure "represents the destruction of representative democracy" because it removes the issue of expenditure of public funds from the hands of elected officials. 

Currently under California law fire fighters and police officers possess the right to join unions, present grievances, and bargain collectively. Public employers are required to bargain in good faith but mediation is the current remedy for impasse. However, twenty-three local jurisdictions already have binding arbitration under local procedures. These jurisdictions would not be affected by the proposal. 

Benefits for inmate fire fighters?
The families of fire fighters who die in the line of duty are entitled to nearly $150,000 in death benefits from the U.S. Department of Justice (DOJ) _ that is unless the fire fighters are prison inmates. The deaths of Michael Todd Bishop and Rodgie Braithwaite while fighting a wildfire in Utah last month have again raised questions about the fairness of the DOJ Public Safety Officer Benefit Program. Bishop and Braithwaite were residents Utah's state prison and members of the "Flame-In-Gos" inmate fire fighter program. They were killed by lightening strikes August 23.

The deaths have raised an ethical question over whether their families should be entitled to the same honors and benefits that dead paid and volunteer fire fighters receive. The deceased inmates were buried with patriotic honors. Their names will be inscribed along with 31 others on a memorial wall being established for Utah's fallen fire fighters. Efforts are underway to have the two names included on the national memorial in Maryland.

"You're dang right they deserve it

 [benefits]," said Salt Lake County fire battalion chief Mont Cooper. "They were out there doing the same things we were doing."

The mother of Braithwaite's victims disagreed. "People don't know the other side," said Kim Williams, mother of a 10-year-old boy who was killed in a 1997 wreck while riding in an automobile driven by Braithwaite. The deceased inmate was subsequently convicted of vehicular homicide and sentenced to up to five years. Bishop was serving time for firing a shotgun at police officers during a car chase. The officers were pursuing Bishop and another man following a burglary.

The federal benefits program requires a deceased be a certified fire fighter. Neither inmate qualified nor were they eligible for state worker's compensation. 

In 1990, DOJ denied benefit applications by families of five Arizona inmates who were killed fighting a fire. Several months may pass before DOJ decides on the Utah applications.
September 2000
Volume 14, Number 9

Some San Francisco fire fighters earning big bucks
Across the nation fire fighter pay ranges widely. Despite a perception of depressed fire service wages generally, some fire professionals do quite well economically. If a list of the highest paid fire fighters were compiled, certain San Francisco fire fighters would certainly be near the top, at least according to The San Francisco Chronicle newspaper. 

The newspaper reported last month that some city fire fighters were among 523 municipal employees who will top the $100,000 pay mark this year. In fact, city projections indicate that 135 fire

 service employees, ranging from fire fighter to command level officers, are expected to break the 100K mark in 2000. For example, two fire fighters who help repair fire apparatus are reportedly on a pace to draw $124,000 each. 

How can this happen? Overtime, what else. Staffing shortages in the San Francisco Fire Department are blamed for the need to utilize existing personnel beyond their normal work schedules. 

Of course, the cost of living is high in the Bay Area.

South Carolina department adds protective vests
Concerned about increasing incidents of violence against fire fighters, the Beaufort, South Carolina, Fire Department announced this month it is placing bullet-resistant vests on its fire apparatus. Beaufort will be the first fire department in the state so equipped. The new equipment - Safariland™ Threat Level IIIA vests _ cost $350 each. At least two vests will be placed on each piece of fire apparatus. 

Department officials are concerned for fire fighter safety following events in Memphis and

 Waterbury, Connecticut, this year in which fire fighters were shot and killed. One year ago in Port Royal, South Carolina, fire fighters were in the line of fire when a gunmen shot four police officers during a domestic dispute.

Beaufort Fire Chief Wendell Wilburn noted that because of quick response times, fire fighters acting as emergency medical first responders may arrive at a crime scene before the criminal has fled. Danger is increased because a fire fighter's uniform can easily be confused with that of a police officer.
Litigation

Cases of interest

Dismissal grounds

 defeat. Goldstein wrote the fire company's executive committee alleging that the fire captain had screamed at various members of the company, had dispatched an inexperienced crew, had left emergency medical technicians behind at the station thereby compromising patient care, and had shown favoritism by failing to suspend an individual who had violated company procedures. This letter was followed by several others, all of which pointed out various shortcomings and concerns that Goldstein held about the operation of the volunteer company.
Goldstein was a tenured veteran volunteer fire fighter. Over the course of his career he was elected to numerous positions in the fire company. In 1995, however, he lost the election for company captain. Before losing the election he had been a consistent letter writer to the volunteer company's leadership. In the letters he would express his concerns, worries, and complaints. The letter writing campaign accelerated following his election
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After writing approximately one-half dozen letters Goldstein spoke with the president of the fire company executive committee. Goldstein memorialized that discussion with another letter that confirmed that the fire company would enforce its rules against all members and that various other issues would be addressed. In exchange for this promise of action, Goldstein agreed that he would bring any future problems to the president's attention before resorting to other actions. Indeed, approximately two months later, Goldstein penned a letter to the full executive committee president complaining that certain fire fighters were riding illegally because they lacked appropriate certifications and inservice training. Goldstein also sent a copy of that letter to the executive committee. At that point the president suspended Goldstein for failing to abide by his agreement to route complaints to his attention first. The executive committee confirmed the 90-day suspension. The full company upheld the suspension by vote. While on suspension Goldstein was terminated because of alleged falsification of CPR training records. Following a hearing the executive committee upheld the termination. Goldstein filed suit claiming that his termination was in retaliation for the exercise of his First Amendment rights. Trial court held for volunteer fire company and former fire fighter appeals.

HELD: The First Amendment to the Constitution provides protection against governmental intrusion for the exercise of free speech by a citizen. Such a right, however, does not apply to private entities. The first question raised in this case is whether the volunteer fire company is subject to the requirements of the First Amendment. In order for the First Amendment to apply to a volunteer fire company it must be shown that the company is a state actor. Private parties can become state actors under a variety of circumstances. In this situation, the facts suggest that indeed the private fire company has all attributes of a state entity and is subject to the coverage of the Constitution. The volunteer fire company receives

 a significant portion of its revenues from the State of Maryland. The state funds the training of the fire fighters. State law grants volunteer fire fighters special authority not given the ordinary citizen. Statutes also cloak the fire companies with sovereign immunity in civil suits. In addition, the State of Maryland itself treats volunteer fire companies as a public-type entity. Thus, the volunteer company must conduct its business consistent with the First Amendment. A state entity may not condition public employment on a basis that infringes the employee's constitutionally protected interest of free expression. The court's role, however, is to seek a balance between the interest of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as employer, in promoting the efficiency of the public service. To trigger a First Amendment claim the speech in issue must relate to a matter of public concern. Second, the employee's interest in speaking out must outweigh the employer's interest in efficient operation of the work place. Third, the employee must establish some form of retaliation by the employer, and finally the employee must establish a causal connection between the protected expression and the retaliation. In other words, the protected speech must be a substantial factor in the decision to take the alleged retaliatory action. Here, Goldstein claims that he was suspended and subsequently terminated because of his exercise of his First Amendment rights. Clearly his allegations of safety violations, inexperienced crews, lack of certifications, and favoritism are matters of public concern. When considering the balancing aspect of the test, the fire company claims that it has an interest in managing its internal affairs to promote efficiency and camaraderie. However, safety and qualifications of fire fighters is a matter of high public concern that outweighs any issue of efficiency. Any complaint by one fire fighter that another fire fighter is violating safety regulations is sure to affect camaraderie in the general sense. Permitting such complaints to always remain internal would endorse a red line of silence whereby fire companies would be permitted
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to quash complaints affecting public safety under the general claim of camaraderie. The court will not countenance such blanket immunity. A fire fighter's ability to exercise First Amendment rights could prove crucial to the safety and welfare of a community. Certainly, Goldstein was deprived of a valuable governmental benefit when he was terminated from his position. However, his case must ultimately fail. Goldstein has submitted no evidence to show that his protected speech was a substantial factor behind his suspension. All evidence presented shows that Goldstein was suspended and subsequently terminated for violating his express agreement to route complaints through the president of the executive board. When he sought after that agreement to bring matters directly to the executive committee, he clearly violated the agreement. Goldstein cannot establish that his termination was substantially based on his previous complaints. Dismissal of case affirmed. [Goldstein v. The Chestnut Ridge Volunteer Fire Company, 218 F.3d 337 (4th Cir. 2000)] appellate court ruled the disability benefits could not be withheld without a hearing. Meanwhile, the union filed an unfair labor practice grievance under the collective bargaining contract. The union demanded arbitration on the basis that the report to work order related to the terms and conditions of employment. Trial court issued a stay of the arbitration. The union and the fire fighters appeal both issues.

HELD: The first issue raised by the fire fighters is the claim that an evidentiary hearing is required regarding their capability medically to perform light duty assignments before being ordered to return to work. It is undisputed that the right of a disabled fire fighter to receive disability benefits is a property interest giving rise to procedural due process protection before those payments may be terminated. Although an administrative hearing may ultimately be required before the payments are terminated, the fire fighter is not entitled to a hearing prior to the issuance of a report for light duty order. Indeed, an order to report for duty made only after a medical determination of capability does not trigger a right to a hearing unless the fire fighter has submitted a report by his personal physician expressing a contrary opinion. Once evidence of continued total disability is submitted, a hearing is necessary to resolve the dispute. No purpose would be served by holding a hearing where the issue is not in dispute. The court properly rejected the fire fighters' claim of entitlement to a due process hearing before being ordered to return to duty. As to the claim that the matter should be submitted to arbitration pursuant to the collective bargain agreement, that assertion cannot be confirmed. The union claims that the order to specific light duty assignments directed to five of the fire fighters violated the labor contract regarding conditions of employment and assignments. However, the labor contract is entirely silent as to whether the contractual rights afforded regular fire fighters are applicable to disabled fire fighters. Prior case law holds that disabled fire fighters who do not perform regular duty in exchange for payment of the full

Disability eligibility
Six city fire fighters were receiving disability payments as provided under state law. Each was subsequently examined by the city's physician for the purpose of evaluating their physical ability to return to full duty or to return to light duty assignments. The physician found that five of the fire fighters were capable of performing light duty and one was able to return to full duty. Each fire fighter then was given a written order to report to their assignments. The fire fighters' union objected to the report for duty orders on the grounds that the fire fighters should have been afforded a hearing prior to the orders being issued. The fire fighters and their union brought a suit seeking a judicial determination that the fire fighters were entitled to a due process hearing prior to being moved from disability status to duty status. Trial court dismissed the suit, but on appeal relief was granted to two fire fighters who submitted medical documentation of their continued total disability. As to them, the
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amount of their regular wages should not be implicitly considered covered by a collective bargaining agreement. Any benefits for non-working fire fighters must be expressly provided for in the labor contract. The fire fighters may not benefit from the arbitration provision of the collective bargaining agreement. As such, the city does not breach the labor agreement by ordering the disabled fire fighters to report for light duty. [Uniform Firefighters of Cohoes, Local 2562, IAFF v. City of Cohoes, 731 N.E.2d 137 (N.Y. 2000)] agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use. Contrary to the former fire fighter's contention, the finding of reasonable suspicion was supported by more than just an anonymous letter. The city presented evidence of Wilson's physical manifestations of substance abuse the day he was tested, a long record of excessive absences, prior substance abuse problems, a reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any sign of recurring substance abuse. In light of this information, the city had reasonable suspicion to order the fire fighter tested. His dismissal is upheld. Reversed for city. [Wilson v. City of White Plains, 731 N.E.2d 1111 (N.Y. 2000)] 

Substance abuse testing
Four years after joining the city fire department, Wilson voluntarily sought treatment at a substance abuse facility. When he returned to work, the fire commissioner informed him that he would be monitored for signs of recurring substance abuse and would be tested if he showed such signs. Wilson acknowledged his understanding that any repetition of substance abuse would result in disciplinary action. A decade later, the fire commissioner received an anonymous letter stating that Wilson had been reporting to work under the influence of alcohol. A decision was made to investigate the situation further. As part of the investigation, fire department officials reviewed Wilson's personnel file, which revealed a history of chronic absenteeism. They also learned that Wilson had a reputation among his coworkers for working under the influence of alcohol or drugs and had been nicknamed "Scotch Wilson." A deputy fire commissioner contacted Wilson and observed his eyes were watery and that he was having difficulty focusing. At that point he was ordered to submit to urine and blood tests. The tests revealed large quantities of cocaine in his urine. Wilson was dismissed from his position as a fire fighter. On appeal the court annulled the dismissal concluding that there was no objective evidence that would have suggested that Wilson was abusing drugs or alcohol. Therefore, the order requiring him to submit to urine and blood testing was invalid. The city appeals. 

HELD: Both sides agree that a public

Fireman's Rule
McKernan was a fire fighter employed by the Wichita Fire Department. He was dispatched to a car fire. Upon arrival he discovered a 1993 Oldsmobile Achieva automobile with gasoline and rear tires burning. There were no visible flames around the engine compartment. Following department procedures, McKernan first circled the car to determine whether there were any injured persons in the area and to identify hazards. To eliminate any further ignition source, he attempted to open the hood of the car and disconnect the battery. He was unable to do so. As he stepped back from the car, a right hood gas strut exploded, firing the strut rod through the right headlight of the car, piercing McKernan's left hand, and striking him in the abdomen with sufficient force to penetrate his Kevlar™ fire fighter's jacket. The rod was later surgically removed from his left hand. The strut that injured McKernan was one of two attached to the car's hood to hold the hood open when raised. The other strut exploded later in the fire. Subsequent investigation determined the car had been stolen and set afire with a flammable liquid. During the course of his career McKernan had responded to approximately 50 automobile fires. His training had identified potential hazards during car fires and how 
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to handle those hazards. As a result of training McKernan knew that automobile tires, gas tanks, air bags, air conditioner evaporators, hollow drive shafts, and low impact bumpers could explode during car fires. He had been trained as to the potential explosion of gas filled hatchback struts but was unaware of the placement of gas struts under the hoods of vehicles. No training instructor nor safety manual of the department identified the use of gas filled struts as hood lifts or warned of specific dangers from their use. McKernan filed suit in federal court against the manufacturer of the automobile claiming that it was negligent in designing the gas hood struts and failing to warn of the risk of exploding struts. The manufacturer moved for summary judgement on the basis of the Fireman's Rule. The federal trial court referred the matter to the Kansas Supreme Court for interpretation of the state Fireman's Rule.

HELD: The Fireman's Rule, as adopted in Kansas in 1985, provides that a fire fighter who enters upon the premises of another in the discharge of his duty may not maintain a cause of action against the individual whose negligence created the risk that necessitated the fire fighter's presence and resulted in injury to the fire fighter. The rule was initially adopted on public policy grounds. Public policy precludes recovery against an individual whose negligence created a need for the presence of the fire fighter at the scene in his professional capacity. The rationale behind limiting a landowners' liability is that since a large proportion of fires are started by the negligence of landowners, it would be unreasonable to make that person respond in damages to a fire fighter who is employed and trained for the purposes of fighting such fires. This case, however, does not involve a landowner or his negligence but rather the alleged negligence of a third party, the automobile manufacturer. A strong public policy recognized in strict liability law is that responsibility be fixed wherever it will most effectively reduce the hazards and health risks inherent in defective products that reach the market. Allowing a suit under these circumstances promotes

 the public policy of fixing responsibility for defective products on the party who introduces the product to the market place. The Fireman's Rule does not serve as a bar to a product liability claim against a party whose negligence did not create the need for the fire fighter at the scene. Additionally, it is the law in Kansas that a fire fighter only assumes hazards that are known and can reasonably be anticipated at the site of the fire and as part of fire fighting. In a product liability case such as this, public policy bars recovery if the fire fighter is aware of the product defect and voluntarily proceeds in disregard of the known danger. It is for the jury to determine whether the hood struts in this case were unknown defective products not anticipated by the fire fighter. If so the Fireman's Rule would not preclude recovery for damages for the fire fighter's injury. [McKernan v. General Motors Corporation, 3 P.2d 1261 (Kan. 2000)]

Dismissal procedures
While serving as a member of the fire department Fenwick was indicted for engaging in organized criminal activity. Because of the indictment his supervisor temporarily suspended him. The state subsequently dismissed the indictment once Fenwick agreed to plead guilty to a Class A misdemeanor. He was placed on probation. The city agreed to reinstate him if he complied with the terms of his probation. However, within one year of his reinstatement Fenwick was arrested for driving while intoxicated. This arrest resulted in an attempt by the state to revoke Fenwick's probation. Similarly, the city instituted efforts to terminate Fenwick's employment for violating city personnel rules in the terms of his probation. Fenwick was thus terminated from the fire department. Immediately after his discharge he appealed the decision to the civil service commission. He requested a continuance of any hearing "for not more than 30 days after the date of the final disposition of the indictment." The civil service commission refused the continuance. Fenwick refused to participate in the proceedings
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and departed. The panel continued and eventually upheld Fenwick's termination. On appeal, the trial court concluded that the city had denied Fenwick his statutory right to a continuance of the civil service hearing. City appeals.

HELD: Texas civil service law provides that a fire fighter indicted for a felony or officially charged with the commission of a Class A or B misdemeanor and who is also charged administratively with a civil service violation "directly related to the indictment or complaint" may delay the civil service hearing for not more than 30 days after the date of the final disposition of the criminal charge. The phrase "directly related to" is nowhere defined in the statute. Therefore, the court looks to the common ordinary meaning of the term. Dictionary definitions suggest that the word "related" means "connected or associated as by origin or kind." "Directly" is defined as "close relational proximity." When put together, the plain meaning of the words "directly related to" connotes an uninterrupted, close relationship or link between the thing being considered. Therefore, the legislature intended that a civil servant be granted a continuance if there is a close, uninterrupted link between the administrative charges and the criminal charges. Applying the law to the facts of this case reveals such a link. In its notice of suspension the city focused upon Fenwick's probation. His return to work was conditioned upon his foregoing the consumption of alcoholic beverages. The city also noted that he had abused alcohol prior to and after reinstatement and that these infractions violated the terms of his probation and the conditions of his reinstatement. In short, Fenwick's consumption of alcohol was viewed by the city as at least one basis of his termination. Likewise, the state alluded to the consumption of alcohol as the basis for revoking his probation. Thus, the same factual circumstance (e.g., Fenwick's consumption of alcohol) was used by both the city and the state as a basis for his termination from his job as a fire fighter and his adjudication of criminal guilt. Given this identity of facts, there exists an uninterrupted close

 relationship between the civil service violation and the criminal charges. Fenwick was entitled to the 30-day continuance. Judgment of court affirmed for fire fighter. [City of Amarillo v. Fenwick, 19 S.W.3d 499 (Tex. App. 7th Dist. 2000)]
Settlements

Cranston, Rhode Island

fire fighters
An arbitrator has awarded Cranston fire fighters a retroactive 2 percent raise for 1997-98. The award becomes part of the fire fighters' base salary as the union and the city begin bargaining for 1998-1999. Disagreement among elected officials reportedly has delayed institution of bargaining sessions for prior and future years. The arbitration award changed neither the holiday pay structure nor the number of sick and vacation days. However, the city did gain changes in overtime procedures and grievance procedures. The fire fighters are represented by Local 1363 of the International Association of Fire Fighters, AFL-CIO.

Largo, Florida

fire fighters
The city's 114 fire fighters, fire lieutenants, and emergency medical personnel will see their salaries jump an average of 28 percent over the next three years. The new deal between Local 2427 of the International Association of Fire Fighters, AFL-CIO, and the city will put pay on average with the five highest paid departments in Pinellas County. Under the agreement, a first year fire fighter/EMT will earn $29,200, up $4,000 from the prior contract. Veteran fire fighters could see their salaries jump $13,000 over the life of the agreement.