November 2000
Volume 14, Number 11

A tale of two cities: Drug use brings different responses
Sadly, the fire service has not been immune to the problem of drug use in the workplace. This month, however, two different cities are struggling with how to respond to drug use by their fire fighters. And, the responses may be quite different in each community.

In a high profile investigation in Madison, Wisconsin, five fire fighters are facing termination and two others suspensions for their alleged involvement with drugs, reportedly ranging from cocaine use to actual sale of drugs in the firehouse. Since April, the fire department has been conducting an internal investigation of several employees. The fire fighters were identified during a wide-ranging police investigation of cocaine trafficking at a local bar. Nine other persons, none of them fire fighters, have subsequently been convicted of federal drug charges. 

Fire Chief Debra Amesqua has refused to reveal the identity of the suspected fire fighters during the investigation despite requests from local media. This month, however, with completion of the investigation, the chief announced plans to disclose her disciplinary plans for each fire fighter. Facing several open records requests for the fire fighters' identities, Amesqua said that the public's interest in restoring confidence in the fire department outweighed the privacy and reputational interests of the individuals involved. But, Local 311 of the International Association of Fire Fighters, AFL-CIO, disagreed and filed suit to bar the disclosure claiming it would invade the fire fighters' privacy rights and unduly harm their reputations. 

A county judge ruled, however, that the public has a right to know the names of the suspected personnel. Circuit Judge Sarah O'Brien denied the union's request for an injunction against the fire

 chief. Further legal proceedings are expected before the matter is resolved. 

Meanwhile, questions have arisen about the cost of the discipline. Under Wisconsin law, only the fire commission may dismiss a fire fighter. The employee may contest the dismissal at a trial-like hearing while continuing to draw full pay and benefits. In recent years, because of the slowness of the process, the city has paid over $100,000 in suspension pay to two different employees that it sought to terminate.

A less contentious approach is occurring in Omaha, Nebraska. Last month, an agreement was reached between the city and two fire fighters who were charged with felony drug possession. Under the agreement, the fire fighters, Dale Hanna and Brian Decker, may apply for reinstatement to their jobs in 18 months if certain conditions are met. The individuals must complete a court-supervised treatment program, pass a monthly drug screen, and commit no other criminal offenses. If reinstated, they will be subject to random drug testing for a two year period.

Mike McDonnell, president of Local 385 of the International Association of Fire Fighters, AFL-CIO, stated, "We are grateful (for the two fire fighters' second chance). We understand it's a very serious problem." McDonnell added, "We cannot condone what they did, but we can help them, and stand with them, and make sure they get all the help."

Hanna is a 12-year veteran of the department while Decker, a seven-year veteran, is the recipient of the fire department's first Medal of Valor for saving a two-year-old child from a house fire. Last May, police officers allegedly found evidence of drugs in the fire fighters' homes.
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Volume 14, Number 11

Houston fire fighters protest staffing shortage
Two hundred Houston fire fighters marched on city hall November 1 to demand that the department staffing shortage be given higher priority. The group carried signs reading "No manpower = Your life" and "Citizens in downtown Houston outnumber ambulances 1 million to 1."

At the heart of the dispute is the issue of minimum staffing of fire apparatus and ambulances. Since the 1980s, various city administrations have made verbal commitments to man each engine and ladder truck with four fire fighters. Because of city growth and corresponding demands for service, the minimum staffing goal has never been reached. 

This year, a management study of the fire department by TriData Corporation concluded that two-thirds to three-fourths of the department's engines and trucks operate with only three fire fighters. In addition, the audit found that 20 engine companies exceed 3,000 calls per year and a dozen more are expected to cross that threshold by 2010.

Mayor Lee P. Brown expressed surprise at the protest. "Everybody knows public safety is my number 1 priority. That's where I've spent my life," said Brown, a former city police chief. In a letter to

 the editor of the Houston Chronicle the Mayor emphasized that three fire fighter manning was not an administration decision but was the result of an insufficient number of personnel.

Steve Williams, President of the Houston Professional Fire Fighters Association, claimed that the department had succeeded in protecting the city with inadequate resources only through the sacrifice and commitment of working fire fighters.

Ironically, a month before the protest the Houston Fire Department (HFD) was recommended for accreditation by the site visit team of the Commission on Fire Accreditation International (CFAI). If granted accreditation at the CFAI meeting next March, HFD will become the largest fire department in the country to receive the designation. A week before the accreditation announcement, Mayor Brown asked for and received the resignation of Fire Chief Lester Tyra, citing staffing deficiencies and issues of leadership of the 3,500-member department. 

The CFAI audit noted the staffing shortages but concluded that the city had an adequate plan in place to solve the problem within two years.

Sick Chicago firehouse garners state's attention
The Illinois Department of Labor (IDOL) earlier this month uncovered serious health and safety violations in a Chicago firehouse where over a dozen fire fighters and paramedics have been diagnosed with cancer during the last ten years. The IDOL has given city officials 15 days to abate the problems.

According to the IDOL report, diesel fume stains and residue are visible on the ceiling and walls. Engine fumes blow into the kitchen. Gaps around sliding poles have been sealed with blankets to prevent fumes from entering the sleeping area. The inspector also found seepage in the building's foundation as well as clogged sewer lines.

In August, the Chicago Firefighters Union, Local 2, IAFF, demanded the immediate closure of

 Engine No. 70, a 1905 building where the union contends a toxic mixture of asbestos and diesel fumes has caused at least 15 fire fighters and paramedics to contract cancer. Five of the fire fighters have since died.

The city is building 10 new fire stations and upgrading 90 others as part of a major capital improvement plan. However, Engine No. 70 is not included in the initial plan. Asbestos was removed from the station's basement last year at the union's request.

A spokesman said the union feels vindicated by the inspector's report. "These are the things we've been complaining about and they found that all of our complaints are valid," said union leader Bill Kugelman.
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Litigation impact. Trial court granted summary judgment in the fire department's favor on both claims. Fire fighters appeal.

HELD: Federal civil rights law prohibits discriminatory harassment so severe or pervasive as to alter the conditions of employment and create a hostile working environment. An employer creates a hostile working environment if: (1) the employee is a member of a protected group; (2) the employee is subjected to unwelcome harassment; (3) a causal nexus exists between the employee's membership in the protected group and the harassment; (4) the harassment affected a term, condition or privilege of employment; and (5) the employer knew, or should have known, of the harassment and failed to take prompt and effective remedial action. Here, the African-American fire fighters alleged a variety of misbehavior in the workplace. Fire fighters on the prior shift allegedly left windows open in the winter, misplaced kitchen items, and adjusted the station temperature too high or too low. Magazines containing racially offensive cartoons were left at the fire station. They also claim that an antique chest being restored by an African-American fire fighter was defaced with a hangman and noose. Further, they claim that the basketball hoop used by their shift was torn down. Other allegations were that protective gear had been tampered with and private property had been defaced. One fire fighter alleged he was wrongly accused of being intoxicated on duty and another claims that a false report of cocaine possession was filed against him. The fire department argues that many plausible, non-racial explanations exist for the actions alleged by the plaintiffs. The department further contends that it responded to each complaint and took appropriate remedial action. Although the evidence shows that the fire department often investigated the complaints and that specific behavior was seldom repeated, the evidence also shows that racially offensive behavior continued in other forms. Therefore, whether the fire department's remedial actions were effective as a matter of law is a question for the jury. Trial erred in granting summary judgment on the claim of
A recently filed case seeking high court review is Greer v. Amesqua, No. 00-461, wherein a former Madison, Wisconsin, fire fighter is alleging that his termination was the result of legally protected whistleblowing. The ex-fire fighter, who was also a part-time minister, compiled a media release criticizing the manner in which discipline was imposed in the department. He also made insinuations about the female fire chief's sexual orientation. Lower courts have rejected the claim, finding that the fire fighter's statements touched upon matters of public concern but the employer's interest in organizational harmony outweighed the employee's First Amendment interests. 

One other case of interest is Barkus v. City of Miami, Florida, No. 00-524, wherein several white fire fighters and a white police officer are attempting to challenge the city's use of race-conscious promotion procedures, claiming reverse discrimination. Lower courts have ruled that the effort is an impermissible collateral attack on a court-approved consent decree. 

A review decision has not been made in either case.

Cases of interest

Race discrimination
In 1992, four African-American fire fighters sued the fire department alleging racial discrimination. Two years later the parties reached a settlement and the fire department was released from all claims. In 1996, however, the same four individuals were joined by two other African-American fire fighters in bringing another action against the department alleging racial discrimination. The fire fighters claimed that racial discrimination was so severe and pervasive within the department as to create a hostile working environment. In addition, they alleged that the department promotion exam had a racially disparate
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intentional race discrimination. As to the claim that the promotion examination was racially discriminatory, federal civil rights law holds that employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than on another cannot be justified by business necessity. While very few African-Americans hold high ranking positions in the fire department, the record does not reveal the precise numbers. Additionally the sample size presented is simply too small to be statistically significant. Although white fire fighters passed the written examination in greater numbers than African-Americans, the sample size ranged from three to seven. No statistical inference can accurately be drawn from such a small sample size. Because the African-American fire fighters have not produced statistically significant evidence that blacks were disparately impacted by the promotion examination, trial court's grant of summary judgment on this claim must be upheld. Reversed in part for fire fighters and remanded for trial. [Mems v. City of St. Paul, Minnesota, Department of Fire and Safety Services, 224 F.3d 735 (8th Cir. 2000)] who participated in the videotaped party. Seven of the employees were discharged and others received varying lengths of suspension. The director of internal affairs was also removed from his position for failing to open an investigation upon learning of the tape. Pursuant to the collective bargaining agreement between the city and the fire fighters' union, the union filed grievances on half of the 28 fire fighters. The labor agreement provided that the employer shall conduct disciplinary investigations when it receives a complaint or has reason to believe an employee has failed to fulfill his responsibilities as an employee. An arbitrator found that the city was required to begin the disciplinary investigation at the time it learned of the alleged misconduct and that the 6½-month delay between discovery of the tape and the subsequent filing of charges was beyond any reasonable time period. The arbitrator ordered the fire fighters reinstated. The arbitrator also made a finding that future misconduct by the fire fighters involved was unlikely as each was a long-term employee and had no record of similar misconduct in the past. The union filed a court petition to enforce the arbitration award and the city countered to vacate the award. Trial court granted the union's petition to enforce the award. City appeals.

HELD: City argues that considerations of public policy are grounds to vacate this arbitration award. Under Illinois law, a court must enforce a labor arbitration award if the arbitrator acts within the scope of his authority and the award draws its essence from the bargaining agreement. However, if the award is repugnant to the established norms of public policy, the award may be vacated by the court. Questions of public policy are left to the courts, not the arbitrator. In order to vacate an award under the public policy exception, the court is required to take a two-step analysis. First, the court must inquire whether a well-defined and dominant public policy can be identified. Second, the court must determine whether the arbitrator's award violates that public policy. It is unquestionable that established policy exists in Illinois favoring safe and effective fire protection services. Numerous statutes

Disciplinary procedures
In 1997, the internal affairs division of the Chicago Fire Department (CFD) learned of the existence of a videotape of an unauthorized retirement party held in 1990 at a CFD firehouse. The videotape depicted fire fighters drinking alcoholic beverages inside the firehouse and then leaving the firehouse to respond to a call. Some participants also made offensive racial, gender, and ethnic slurs on the tape and some engaged in other conduct, such as exposing their bare buttocks and genitals. The director of internal affairs did not notify his superiors of the existence of the tape until six months later after he learned that a local television station had obtained a copy of the tape. At that time the fire department commenced a disciplinary investigation. Subsequently, the city filed administrative charges against 28 employees
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articulate this position. Having identified a well-defined public policy favoring safe and effective fire prevention services, the court next turns its attention to whether the arbitration award violated that public policy. In this matter the arbitrator held that the 6½-month delay in instituting the disciplinary action was too long. However, the bargaining agreement contains no explicit provision demanding the investigation of infractions within any specific time period. Previous Illinois cases hold that the nature of the conduct at issue must be considered before arbitrary time restrictions can be imposed. It is the behavior that violates public policy and is of prime concern. In this case the arbitrator gave several reasons why he was assured that the fire fighters pose no future danger to the public without ever considering the merits of the case. Although the arbitrator viewed the videotape, he did so specifically for the purpose of showing that it was the basis for the discipline. Without considering the conduct contained in the tape the arbitrator was unable to fashion an appropriate award. Failing to consider the merits of the allegations, he ignored the seriousness of the possible lack of readiness of the fire fighters to respond to emergency situations. It cannot be doubted that fire fighters who are ill-equipped to adequately perform their prescribed duties as a result of a state of intoxication may have a substantial detrimental impact on the health and safety of the citizens. The order of the arbitrator fails to show that any precautionary steps were taken to deter future misconduct. The arbitrator merely concluded, based on his own assumptions, that the fire fighters would fail to engage in future offensive behavior. He held no hearing whatsoever on the merits of the alleged infractions and failed to consider any evidence that the fire fighters took responsibility in anyway for their conduct. The arbitrator's award fails to promote the safety and welfare of the public in direct contravention of well-established public policy. Reversed and remanded for a hearing on the merits of the discipline. [Chicago Fire Fighters Union, Local No.2 v. City of Chicago, 735 N.E.2d 108 (Ill. App. Ct. 2000)]

Dismissal procedures
Deal was a captain on the fire department. He was instructed to report to a local medical center for an alcohol screening. Hospital personnel collected a urine sample from Deal who then returned to work. The results of the test were positive for alcohol at a level greatly in excess of the prohibited standard. The fire department subsequently notified Deal that his employment was being terminated. He filed an appeal of the termination with the civil service board. Following a hearing, the board issued a finding of fact that the evidence sufficiently established that Deal had violated the city's policy related to alcohol. The board also found that the city had acted in good faith and for cause in terminating Deal's employment. Trial court on appeal upheld the board's determination. Fire fighter appeals. 

HELD: Under Louisiana law any municipal employee who feels he has been discharged without just cause may demand a hearing before the civil service board to determine the reasonableness of the action. Both the employee and the employer shall be afforded an opportunity to appear before the board and present evidence. The procedures to be followed are to be informal and a board is not bound by legalistic rules of evidence. Deal argues that the city circumvented its own procedures in conducting alcohol tests of employees. He argues that the use of a urine test does not comply with the city's testing procedures, that the laboratory that conducted the test was not authorized to do so under city policy, and the reviewing physician was not properly selected as a medical review officer. In considering these claims the reviewing court is confined to a determination of whether the civil service board's decision was made in good faith and for cause. Courts look only to the evidence presented before the board and review this evidence in light of a presumption that the board found sufficient facts to afford a legal basis for its decision. Civil service board's factual conclusions must be given deference and will not be overturned if there is any evidence
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to support them and they are not manifestly erroneous or arbitrary. City policy states that testing for alcohol shall be by "those methods recognized by the State of Louisiana for DWI cases." Deal argues the city is limited to a test actually used by state personnel in DWI cases. While the phrase in question is somewhat unclear, a reasonable interpretation does not support Deal's position that the city is limited to a test which is actually used in DWI cases. Louisiana DWI statute provides that a urine test is a possible means by which the state can determine a driver's blood alcohol level. Thus, the civil service board could make a reasonable finding that the urinalysis method is recognized by the state. As to the laboratory that conducted the test, Deal argues that it is not authorized under the city screening policy. City policy authorizes the mayor to select a laboratory. While there is no direct evidence that the mayor ever designated the center in question as an appropriate laboratory, Deal did not object to the laboratory's authority at the time of the hearing. Thus, the court must defer to the civil service board's implicit finding that the laboratory was authorized to perform the test. Deal also argues that the physician that conducted the test interpretation was not shown to be an appropriate medical review officer. Once again, at the hearing Deal did not object to the doctor's qualifications. The doctor's testimony apparently satisfied the board and its determination that the physician was authorized to act as a medical review officer was not arbitrary. Dismissal for the fire fighter affirmed. [Deal v. Monroe Municipal Fire and Police Civil Service Board, 764 So.2d 257 (La. Ct. App. 2000)] mayor had not previously filled these vacancies because he believed that current employees were not productive workers. Therefore, city administrators decided to have the fire department perform a less extensive inspection of the hydrants twice a year to ensure that the hydrants were functioning. The fire department administrators later justified implementation of the program on the grounds that it was part of the job of a fire fighter to work with hydrants, know their location, and know that they work. The program was also classified as a new rule about pre-fire planning that was already part of the bargaining agreement. The fire fighter's union opposed the new program and filed a grievance. The grievance was repeatedly denied and the issue was eventually presented for arbitration. The arbitrator ruled that the fire hydrant inspection program was outside the scope of a fire fighter's duties and had not been properly negotiated. He sustained the grievance. On appeal, the trial court upheld the arbitrator's decision. City appeals.

HELD: The city first objects to the award on the grounds that the topic was not subject to arbitration. The collective bargaining agreement provides that written orders that constituted new rules, department operations, programs, and procedures were subject to review only through a portion of the grievance process. Operational changes were not fully appealable if the union was provided written notice of the proposed changes. The arbitrator found, however, that a different section of the collective bargaining agreement granted him the power to review the claim. That section defines a grievance as "any controversy, complaint, misunderstanding or dispute arising from the interpretation, application or observance of any provision of the contract." The arbitrator held the city could not rely on the other section in this manner or it could always submit proposed actions to the bargaining unit prior to their implementation and thereby avoid being subject to the entire grievance process. Under the bargaining agreement, issues regarding the grievance process are also subject to arbitration. The city has failed to show that the 

Arbitrator's authority
In 1997, the mayor was upset by media coverage regarding safety concerns arising from the fact that the city fire hydrants were not being properly maintained. The water department under whose purview the hydrants fell complained that it could not keep up with the twice-yearly inspections because of vacancies within the department. The
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arbitrator's decision was improper. Next, the city contends the arbitrator exceeded his authority by relying on facts not in evidence. This is a factual issue that is not reviewable by the courts. When agreeing to arbitration, the parties agree to accept the arbitrator's award, even if it results in a legally or factually inaccurate decision. Courts must simply accept the factual findings of the arbitrator and enforce the decision unless there is a statutory reason for not doing so. When determining whether the arbitrator exceeded his powers, the reviewing court must confirm the arbitration award if it finds that the arbitrator's award draws its essence from the bargaining agreement and it is not unlawful, arbitrary, or capricious. The test for determining whether an arbitration award draws its essence from the grievance is whether: (1) an award conflicts with the terms of the agreement; (2) an award imposes additional requirements that are not expressly provided for in the contract; (3) an award is without rational support; and (4) the award is based on general considerations of fairness and equity instead of the precise terms of the agreement. The city argues that the arbitrator's award departs from the essence of the agreement because of a prior ruling by the State Employment Relations Board (SERB). The city claims the arbitrator is bound by the SERB ruling that hydrant inspections are part of the fire fighters' class specifications. The city is in error. The arbitrator has the power to interpret the terms of the contract and is not bound by the findings of the SERB. The arbitrator considered all of the testimony and found that hydrant inspections have not historically been a duty of fire fighters for nearly 25 years. He found that their inspection duties have traditionally involved only building inspections. He concluded that the bargaining agreement's generalized description of fire fighters' duties could not have included hydrant inspections. The city's act of assigning the hydrant inspection work from the water department to fire fighters was outside the collective bargaining process in violation of the bargaining agreement. The arbitrator's decision is based upon the terms of the collective bargaining agreement and not on his own considerations of equity. The decision derives its essence from the agreement and must be upheld. Affirmed for fire fighters' union. [International Association of Fire Fighters, Local 92 v. City of Toledo, 735 N.E.2d 960 (Ohio Ct. App. 1999)]
Settlements

East Providence, Rhode Island

fire fighters
Two annual pay hikes of 3 percent each followed by a 4 percent raise provide the primary economic gains for East Providence fire fighters under a new three-year pact with the city. In addition to the hikes in direct compensation, the second year of the contract will see a one percent reduction in the fire fighters' contribution to the pension plan. The reduction means fire service personnel will contribute 7 percent of salary to their retirement plan. Fire fighters did agree to shift to the less expensive health care program utilized by other city workers. Local 850 of the International Association of Fire Fighters, AFL-CIO, serves as the bargaining agent for the city's 100 fire fighters.

Philadelphia, Pennsylvania

fire fighters
An arbitration award earlier this month grants Philadelphia fire fighters a 3 percent wage hike retroactive to July 1 and another 4 percent one year later. But the most important element of the award is an order that the city begin testing fire fighters for hepatitis C and set aside millions of dollars to cover related medical costs. The arbitration panel ordered the city to pay for confidential testing of active and retired employees, reimburse sick leave used in connection with the virus, and develop a policy for control of the disease. A wellness and fitness program is also to be created. The panel also ordered payment of $601 per employee each month to the union health and welfare fund. The city will also make two additional
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lump sum payments of $2.4 million each into the fund in lieu of the $1,000 bonus police officers received earlier this year. Local 22 of the International Association of Fire Fighters, AFL-CIO, represents the city's fire fighters and paramedics covered by the two year award. A 3 percent across-the-board wage increase is retroactive to May 12. Another 3 percent will be forthcoming on January 1, 2001. A 1.25 percent pay hike will be awarded on July 1, 2001. Starting pay for a fire fighter goes to $25,400, hitting $26,489 after the final raise in the contract. Advanced fire fighters will earn $35,681 this year. Fire captains will now draw a base wage of $46,421. All fire fighters are required to be certified as emergency medical technicians. This certification is worth an extra $60 monthly. An associate's degree in fire science adds $240 a year to the paycheck while a four-year degree garners $480. Fire fighters working 24-hour combat shifts earn a $40 per month meal allowance. Fire fighters will also be awarded one day's pay for each four months of perfect attendance on the job. Local 83 of the International Association of Fire Fighters, AFL-CIO, negotiated the deal for the fire fighters.

Plant City, Florida

fire fighters
The 24 members of Local 2103 of the International Association of Fire Fighters, AFL-CIO, have approved a new contract with Plant City, a week after rejecting the same offer. Fire service personnel will receive a 2 percent raise and up to a 3 percent merit increase. Residency requirements were altered to permit fire fighters to live within a 45-minute radius of the city, up from the previous 25-minute area. Pay in the department starts at $8.02 per hour.

Smithfield, Rhode Island

fire fighters
The Town of Smithfield and Local 2050 of the International Association of Fire Fighters, AFL-CIO, have reached accord on a new labor contract that includes pay raises retroactive to July 1. Fire fighters holding the rank of private will see their salaries lifted by 4 percent to $35,805. Another 4 percent will be forthcoming in each of the next two years. The union agreed to psychological testing for fire fighters who qualify for promotion while the town agreed to establish a promotion path for fire fighters and emergency medical technicians. Eliminated in the agreement is the unusual practice of considering the fire chief as part of the bargaining unit. The chief now becomes an exempt executive. Forty-two fire service employees are covered by the contract. 
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Topeka, Kansas

fire fighters
The City of Topeka and its fire fighters have reached an agreement on a three-year labor contract.