October 2001 
Volume 15, Number 10 

Supreme Court to examine scope of disability law 
Adhering to tradition, the U.S. Supreme Court opened its 2001-2002 term on the first Monday in October. On the court's docket are two matters seeking interpretation of the Americans with Disabilities Act (ADA). While neither case involves public safety personnel, the decisions in both cases could greatly affect the application of the ADA to the fire and police services. 

In the first case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, No. 00-1089, the justices are being asked to determine whether an impairment that precludes an employee from performing only a few of the required job tasks qualifies as a "disability" under the act. The U.S. Court of Appeals for the Sixth Circuit found that an assembly line worker who suffers from carpal tunnel syndrome fit the statutory definition of being disabled. The employer unsuccessfully argued that the appeals court misinterpreted the statute and ignored prior case law holding that the inability to perform a narrow range of jobs is not the equivalent of the "major life activity" of "working." 

If the high court upholds the ruling, public safety agencies may have to grant ADA rights to job applicants if a physical or mental disability prevents 

 them from performing some, but not all, of the essential elements of the job being sought. Such a holding would increase the burden on an employer to defend the validity of selection criteria. The justices have scheduled oral arguments in November. 

In the other matter, U.S. Airways, Inc. v. Barnett, No. 00-1250, the Supreme Court is faced with the issue of whether a seniority system for job assignments must give way if the employer needs to make a "reasonable accommodation" for a disabled person. The U.S. Court of Appeals for the Ninth Circuit ruled that an injured airline cargo handler must be allowed to remain reassigned to the mailroom even though more senior employees normally would have first choice on the position. The airline argues that while the ADA states that reassignment is one type of "reasonable accommodation," bucking an established seniority system essentially grants a preference to the disabled employee. 

Given the wide use of seniority in public safety agencies, an affirmation of the lower court ruling could produce disharmony if a fire fighter or police officer were denied an assignment because the employer was accommodating a disabled more junior employee. 

Bill would pay for 75,000 new fire fighters 
Fire union leaders, fire chiefs, and Congressional leaders from both sides of the aisle gathered earlier this month to kick-off a campaign to create a federally-funded program to pay for 75,000 new fire fighters. The program, modeled after the federal community policing initiative, would require $1 billion annually for seven years. 

A bipartisan group of Senators and Representatives joined Harold Schaitberger, General President of the International Association of Fire 

 Fighters, AFL-CIO (IAFF), and International Association of Fire Chiefs (ICHIEFS) President John Buckman October 11 in announcing the proposal. Under the "Staffing for Adequate Fire and Emergency Response (SAFER) Fire Fighters Act" Congress would provide the funds for municipalities to hire additional fire service personnel. Federal money would pay up to 75 percent or $30,000 of the salary and benefits of new fire fighters for a maximum of three years. Communities would be 
October 2001 
Volume 15, Number 10 
required to fund the individual for a fourth year. 

Schaitberger observed, "As Americans, we are at war, and the first step in being prepared for the next disaster is to have enough fire fighters to do the job. This legislation will be a living memorial to their sacrifice," referring to the 343 fire fighters lost last month in the World Trade Center attack. "Right now the fire service is not mission capable because two-thirds of the nation's fire departments are drastically understaffed," the union leader added. 

Buckman endorsed the proposal noting that the recent terrorist attacks on New York City and the Pentagon have highlighted the changing role of America's fire departments and focused significant attention on the resources which are allocated to support them in their mission. 

 "Our fire fighters are truly America's `first responders'," Buckman said, "and they perform the duties of true `domestic defenders' because they must deal with incidents that occur on our own soil." "If we are preparing for a war overseas," Buckman concluded, "we must not fail to prepare for war here. And that means we must staff up our nation's fire service because that mission will be carried out by America's fire and rescue personnel more than anyone else." 

Senator Chris Dodd (D - Conn.) is the leading sponsor of the bill, which has not as yet been formally introduced in Congress. The SAFER proposal is likely to gain broad support in Congress if a funding mechanism can be identified. Sponsors expect action on the idea during the current session. 

Houston death forces minimum staffing issue 
The death this month of a veteran Houston fire fighter may accomplish what years of complaints from the fire fighters' union could not: placement of four fire fighters on each piece of fire apparatus. Captain Jay P. Jahnke died in the early morning hours of October 13 during a six-alarm fire at a luxury apartment building. Jahnke's squad consisted of only two other fire fighters despite nationally recommended standards of at least four fire fighters per engine or truck. For over a decade the Houston Professional Fire Fighters Association (HPFFA), Local 341 of the International Association of Fire Fighters, AFL-CIO, has complained that the department practice of dispatching apparatus with only three fire fighters was unsafe. City officials have continually resisted full staffing because of the cost of hiring sufficient personnel. Efforts to improve staffing were detoured a few years ago as the department assigned new personnel to staff an expanding emergency medical division. 

In a surprise act, Jahnke's widow, Dawn, giving the 20-year veteran's eulogy, urged city officials to hire sufficient fire fighters to fully staff the department. In a hastily called news conference following the funeral, Mayor Lee P. Brown, a candidate for re-election, apparently sensing a 

 political disaster at hand, announced a plan to fully staff all fire apparatus. The mayor's plan will authorize extra overtime and reassignment of personnel from some ambulances. Fire cadets who are certified EMTs will be placed on the ambulances. Additionally, some uniformed personnel assigned to staff positions will be transferred to assist in manning the city's 119 pumpers and ladder trucks. A mayoral proposal to hire 400 fire fighters over the next six years was rejected by city council this summer because a tax hike would be required. 

HPFFA President Steve Williams declared that the mayor's interim plan would not work and called upon the city to hire several hundred additional fire fighters as soon as possible. 

Houston fire fighters, who work a 46.7 hour average week, have been at odds with the mayor over the question of overtime rate. During the term of Brown's predecessor the fire fighters worked overtime at straight time. The union has been demanding time and one-half from the current administration. The city and the union have been at impasse for some months on a new meet-and-confer contract. 

Questions about the safety of utilizing only three fire fighters per engine have been in the public 
October 2001 
Volume 15, Number 10 
eye since the first of the month when a committee of HFD district chiefs took the unprecedented step of appearing before city council to present their study of the staffing problem. Their research found 83 percent of engines and ladder trucks were understaffed daily. Further, Houston is the only city among the nation's ten largest to routinely staff apparatus with only two fire fighters and a supervisor. The chiefs called the manning problem not only a threat to fire fighter safety but also a threat to the safety of the citizenry.  The National Institute of Occupational Safety and Health in its report on the death of two other HFD fire fighters last year recommended a minimum of four fire fighters with five on an engine and six on a ladder truck in high risk areas. As of last month, Texas adopted Occupational Safety and Health Administration (OSHA) standards for combating structural fires. The OSHA standards mandate the "two in/two out" procedure. Apparatus with less than a full compliment of fire fighters will have to await a second engine prior to entering the fire site. 

Union suspicious of FDNY interviews after WTC tragedy 
A dispute over how surviving fire fighters from the World Trade Center attack should be interviewed has erupted between the Fire Department of New York (FDNY) and the Uniformed Firefighters Association (UFA). The union is advising its members not to speak to department representatives who are conducting the post-incident safety investigation. 

At the core of the union's stance is its objection to the use of personnel from the department's Bureau of Investigations and Trials (BITS), which usually questions fire fighters suspected of misconduct. Additionally, the UFA objects to the interviews being recorded. 

A FDNY spokesman said the union is 

 misunderstanding the investigative process. Frank Gribbon said that investigators are using audio recorders, not video camera. Additionally, the group includes fire marshals and supervisors in addition to BITS personnel. The UFA is urging fire fighters to wait until they can be interviewed by "knowledgeable and experienced fire chiefs." "Just state that you are not ready to talk at this time," the union is advising members who might be approached by the investigators. 

Gribbon denied that the interviews were being conducted for disciplinary purposes but rather to record the history of the incident that claimed the lives of over 300 fire fighters. 

Sept. 11 tragedy affecting fire service outside of NYC 
While many fire executives are already complaining about a shortage of personnel to staff their departments, the events of September 11 may further complicate manpower issue. Why? Fire fighters who are members of military reserve units may be called to active duty. And no one knows exactly how long they will be gone. Additionally, many fire fighters may experience substantial pay cuts while departments, large and small, scramble to staff not only normal assignments but also the extra work brought on by anti-terrorism efforts. 

President Bush's call-up of 50,000 reservists could affect the nation's fire protection services. Small departments would be hardest hit as activation 

 of only one paid fire fighter would have a substantial effect on work schedules. 

The call-ups create a level of uncertainty for fire service administrators. Federal law requires reservists be given their old jobs back upon deactivation. Thus, shortage of applicants and extensive training time makes hiring permanent replacements seems unlikely. While reservists can be activated for up to two years, most assignments are expected to be far shorter. Nonetheless, either increased overtime or running with less than a full crew of fire fighters would appear to be the primary responses available. Labor contracts may prevent use of smaller crews. 
October 2001 
Volume 15, Number 10 
Litigation  then set fire to the living room. Shortly thereafter fire fighters and other law enforcement personnel arrived at the scene. Urban, a fire fighter, approached the house with a fire hose but was stopped by a police officer who told him he could not enter the house because there was a man inside with a gun. After about five minutes the fire fighters received permission from the police to start spraying water on the house. During the course of the incident one fire fighter inadvertently busted a tape the police had placed around the house. An argument ensued between the police and the fire fighters. A police supervisor intervened and resolved the dispute. In the meantime, Lansdown had retreated to his bedroom and was lying face down while the other side of the home was on fire. At that point Urban, observing Lansdown through the open window, stated that a rescue attempt needed to be made. A police officer standing by replied, "No, let him die." Urban made no attempt to rescue Lansdown. About 30 minutes after Lansdown had started the fire, he was pronounced dead from smoke inhalation. The cause of the death was ruled a suicide. Nonetheless, Lansdown's estate filed suit against the police officers alleging a violation of Lansdown's civil rights. Meanwhile two fire fighters filed suit against certain of the officers claiming their rights had been violated as well. Trial court granted summary judgment for all of the defendants. Estate and fire fighters appeal. 

HELD: The trial court concluded that although the events of that day indicated a lack of professionalism on the part of those hired to serve the community, the incident did not rise to the level of a constitutional violation. Lansdown was solely responsible for the situation that created the danger to his life. Similarly, the detention of the fire fighters by the police officers did not rise to a violation of their constitutional rights. The fire fighters had not been seized pursuant to an unconstitutional policy or custom of the government and thus there is no supervisory or municipal liability for the police officer's actions against the fire fighters. While the entire situation indicated carelessness, incompetence and extreme lack of professionalism, a constitutional 

Supreme Court update 
In addition to the court's actions reported elsewhere, one case of interest was filed over the summer. In Chicago Fire Fighters Union, Local No. 2 v. City of Chicago, Illinois, No. 01-365, a group of white fire fighters are challenging the city's 1987 affirmative action plan relative to the hiring and promotion of minority fire fighters. The group claims the plan is no longer necessary and should be dropped. Additionally, they assert the trial court used the wrong standard of comparison in deciding that minorities are underrepresented in the fire department selection process. The high court has yet to decide whether or not to review this matter. 

Cases of interest 

Civil liability 
A police officer responded to a call that a truck had been driven through the wall of a building. While en route to the incident, the officer received another call from the dispatcher ordering him to respond to a gasoline drive-off where a man driving a truck and wearing a ski mask had left a gasoline station without paying. He had written the word "God" at the top of the clerk's charge book. Upon arrival at the gas station the clerk informed the officer that the person involved had driven to the house across the street. The police officer recognized the truck and house as belonging to Lansdown. The officer knew Lansdown and knew that he had a history of mental illness as well as a propensity for violence. The officer then observed Lansdown as he poured gasoline on various parts of his property and lit them on fire. Lansdown then retreated inside the house, breaking down the back door to obtain entry. A few moments later, Lansdown jumped through the front window of the house shattering the glass. He posted a page from the Bible on a tree in the front lawn and then retreated into the home. He 
October 2001 
Volume 15, Number 10 
violation did not occur. Summary judgment for police officers affirmed. [Lansdown v. Chadwick, 258 F.3d 754 (8th Cir. 2001)]  only two years experience as a fire fighter and lacking the minimum number of years as a training instructor. Further, he had falsified the fact that he had earned college credits when, in fact, he had never attended a college. After being denied the instructor position for which he was highly qualified, Bass took an engineer/paramedic position. Bass filed a union grievance over his failure to be selected. Subsequently, the grievance was settled without a hearing by reassigning Bass to be a fourth training instructor. He was given the job title and pay but was not assigned any of the responsibilities of the position. On his first day as a training instructor, Bass was assigned to clean out a warehouse, work ordinarily done by prison inmates. Bass had no other routine work assignments and performed largely custodial and clerical duties. He was instructed not to record those custodial duties in his work log. Bass was not permitted overtime pay or other supplemental pay, all of which was available to other training instructors. A year later Bass was transferred out of the training bureau and assigned temporarily to the fire chief's staff. When one of the budgeted training instructor positions opened, Bass was not assigned to it. Bass subsequently sued his employer contending discrimination and violation of federal fair employment laws. Specifically, Bass claimed that he was discriminated on the basis of his white race. Trial court granted summary judgment to the county and fire fighter appeals. 

HELD: Discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim. The Constitution does not distinguish between races. Thus, the fact that Bass is white does not bar his efforts at enforcing federal fair employment law. Racial discrimination against whites is just as repugnant to constitutionally protected values of equality as racial discrimination against blacks. Under federal fair employment law a plaintiff may establish a claim through the introduction of direct evidence of discrimination or through circumstantial evidence that creates an inference of discrimination. When circumstantial evidence is used, the plaintiff must first establish a prima facie case of 

Promotion procedures 
Because of financial woes the fire department was reorganized. A number of assignments were eliminated, including all four training captain positions. Bass, a white male, had held one of these positions. The training captain slots were replaced with three lieutenant- level training instructor positions. Bass applied for one of these three positions. The requirements stated that an individual needed two years of experience as a training instructor and must possess a teacher certificate or obtain one within 18 months of employment. Bass's qualifications far exceeded these minimums. According to department rules the selection of the training instructors was to be conducted by a three-member panel. A performance-based interview was to be used in which candidates were asked pre-selected questions to test their responses to hypothetical situations. The three individuals appointed to the panel were a black male, a Hispanic male, and a black female. The black male was a member of an advocacy group for black fire fighters and was known to support affirmative action. The other two individuals had no knowledge or experience as fire fighters. Not only did the panel members lack experience as fire fighters and training instructors but also were given no training to help them evaluate which candidates were best qualified for the positions. Further, no job description for the position of training instructor was provided to them. Despite department rules that the interview was to be only one of several factors considered in selecting the training instructors, the department in fact relied solely upon the interview panel results. Bass received a low score on the interview and consequently was not chosen for one of the three training instructor positions. Rather, the highest interview scores attained and the individuals subsequently promoted were a black male and two white females. It was later learned that the black male did not possess even the minimum qualifications for the position, having 
October 2001 
Volume 15, Number 10 
discrimination. When that is accomplished, the employer must articulate some legitimate, non-discriminatory reason for the employee's rejection. If the employer meets this burden of production, the plaintiff can then counter that the employer's reasons are a pretext. In cases of discrimination proven by direct evidence, the employer must carry the burden of persuasion, much like other civil suits. Prior case law holds that subjective reasons for the employer's action, such as poor interviewing performance, can be as legitimate as any other reason. Certainly, an interview is frequently necessary to assess qualities that are particularly important to supervisory positions. Traits such as common sense, good judgment, ambition, loyalty, and tact often must be assessed primarily in a subjective fashion. However, in order for a subjective reason to be a legally sufficient, non-discriminatory reason a specific factual basis must exist upon which the subjective opinion is based. In this case the interviewers testified as to the basis for their opinions and those reasons were sufficient for the employer to meet its burden of producing a legitimate non-discriminatory reason for not hiring Bass as the instructor. However, other evidence in the case raises questions of discrimination. There is evidence that the county was pressured to hire minorities over non-minorities. The evidence shows that individuals who were substantially less qualified than Bass, and were black, were hired in front of Bass. Further, the employer disregarded its own procedures and relied exclusively on the interview process, a process designed purposely to create leeway for the promotion of people of a certain race. Thus, the evidence offered by Bass is more than sufficient to raise a genuine issue of fact regarding the county's alleged non-discriminatory reason for failing to promote him. The county's emphasis on promoting employees based on race as well as statements by the fire chief concerning the race-conscious efforts, coupled with the deviation from standard procedures and the lack of qualifications of the individual who was actually promoted, is sufficient for the matter to be afforded a trial on the question of race discrimination.  Summary judgment for county reversed. Remanded for trial. [Bass v. Board of County Commissioners, Orange, County, Florida, 256 F.3d 1095 (11th Cir. 2001)] 

Overtime 
Heder worked as a fire fighter/paramedic for the city for over two years at which time he resigned to go to work as a fire fighter for another city. All of the city's fire fighters received mandatory paramedic training. Under the collective bargaining agreement between the fire fighters' union and the city if a fire fighter left the city's employment within three years of completion of paramedic training, he was required to pay as liquidated damages all costs of the paramedic training. When Heder resigned from the department the city withheld nearly $2,300 from his final paycheck in an effort to recover more than $7,600 it alleged was due for his paramedic training. Former fire fighter filed suit against the city alleging that he was owed overtime money for training as a paramedic and that the city was unlawfully attempting to recoup his training costs. He files for summary judgment on the issues. 

HELD: Under the Fair Labor Standards Act (FLSA) employers must pay nonexempt employees overtime at 1-1/2 times their regular rate for all hours in excess of their maximum hour limit. Public agencies may set the work period for fire fighters at any time between seven and 28 days. Here, the city established the work period of 204 hours in 27 days. This corresponds to approximately 52.9 hours per week. The city, however, used a schedule whereby fire fighters worked three 24-hour shifts each nine-day duty cycle. There were three of these duty cycles each 27-day period for a total of 216 hours. The city acknowledges that it was responsible for overtime compensation for the hours between 204 and 216 in the work period. However, the parties disagree over the method of computing the rate for overtime compensation for hours beyond 216. Department of Labor recognizes three types of salary. In flat salary an employee's salary is for a regular number of hours per workweek. A fluctuating 
October 2001 
Volume 15, Number 10 
workweek employee's salary is for a fluctuating number of hours per workweek, while a variable workweek employee's salary is for a variable number of hours up to an agreed number of hours per week. Flat salary and variable workweek salaries are compensation for the regular number of hours per workweek and not compensation for any additional hours of overtime. By contrast, a fluctuating workweek employee's salary is, by definition, straight time compensation for whatever hours the employee is called upon to work, no matter how few or many. Fluctuating workweek employees are entitled only to half time for any overtime as contrasted to time and one-half in the other two examples. The collective bargaining agreement between the city and the fire fighters' union is less than clear on whether fire fighters are paid a flat salary or paid based on a fluctuating workweek. The nature of the fire fighter shifts are such that the workweeks will fluctuate. However, that does not mean that the parties agreed on what hours the salary would cover. The contract does provide that overtime shall be paid at time and one-half. Given this provision it would appear that the parties did not agree to a fluctuating workweek method. There is no clear, mutual understanding of a fluctuating workweek method. Thus, the former fire fighter is entitled to overtime compensation at time and one-half for all hours worked over 216 per 27 day work period. Because Heder resigned before three years had lapsed after his paramedic training, the city seeks to recoup training costs pursuant to the labor agreement. The former fire fighter contends he is not bound by the contract because he never agreed to it personally. However, given the fact that the union is the recognized and exclusive bargaining agent for the employees in the bargaining unit, he is bound by the contract even if he did not personally agree to it. Secondly, Heder argues that the union membership never voted to ratify the contract. While this may well be true, no provision of Wisconsin law requires employee ratification of a labor agreement before it takes force. Thus, he is bound by the contract. He likewise objects to the fact that the contract was retroactive and backdated.  Retroactivity is a way of life in labor negotiations. All provisions of the contract, including the liability for training costs, are entitled to retroactive effect. Heder additionally claims that requiring repayment of the training costs violates the FLSA. A review of the law reveals that several states have actually banned as against public policy any agreement requiring an employee to repay an employer a sum of money due to leaving the job within a specified period of time. Such agreements obviously restrict an employee's freedom to leave employment and reenter the job market while effectively reducing the amount of compensation an employee receives. Consequently, public policy requires that these types of agreements be closely scrutinized. In addition, the duration of the worker's obligation to remain with the employer must be reasonably related to the actual cost of training. In this case the city seeks to recoup the entire training cost for the three year commitment. Enforcing such a provision, however, would violate the FLSA because the statute clearly requires payment of overtime compensation. These overtime requirements would not be satisfied if the employee had to pay back a portion of the amount to the employer. It would be a transparent violation of the FLSA to require repayment of earned overtime. While an employer may be able to recoup training costs apportioned to the period of time covered by the agreement, a penalty such as in this case, is not enforceable. Summary judgment for fire fighter granting overtime and rejecting liability for reimbursement of training cost. [Heder v. City of Two Rivers, Wisconsin, 149 F. Supp.2d 677 (E.D. Wis. 2001)] 

Disciplinary procedures 
Simmons, a fire captain, was demoted to the position of fire fighter after testing positive for the use of marijuana. He challenged the disciplinary action pursuant to the grievance procedure set forth in the labor contract. As required by the contract the grievance was submitted to arbitration. The arbitrator subsequently found that the city had just cause to demote Simmons, but due to a number of 
October 2001 
Volume 15, Number 10 
mitigating factors, the penalty of rank reduction was too severe. The arbitrator, finding that Simmons had served ten months at the reduced rank, ordered him reinstated to the rank of captain with restoration of pay and no loss of seniority. The city appealed the order to trial court claiming that the arbitrator had exceeded his authority under Florida statute. The trial court agreed and vacated the award. Fire captain appeals. 

HELD: The standard of review of statutory arbitration awards is extremely limited in Florida. Such awards will be overturned only if an arbitrator exceeds his authority by going beyond the authority granted by the parties or the operative documents. Here, the city claims that the collective bargaining agreement empowered the arbitrator only to address whether just cause existed for discipline not the level of discipline. The wording of the collective bargaining agreement, however, states that "any disciplinary action is subject to the grievance provisions." To follow the city's interpretation of that phrase would be overly restrictive and would limit an arbitrator only to determining whether the employee committed the act in question, while punitive action taken against the employee would not be subject to grievance. This interpretation is contrary to the plain language of the contract. Thus, the phrase "any disciplinary action" includes the selection and severity of the discipline imposed. Arbitrator did not exceed his authority in reviewing the sanction imposed by the employer. Reversed for fire captain. [Simmons v. City of Avon Park, 788 So.2d 1076 (Fla. Dist. Ct. App. 2001)] 

 He did not notify his superiors of the existence of the videotape until some six months later when he learned that a local television reporter had obtained a copy of the tape. At that time the fire department commenced disciplinary investigation. Subsequently, the city filed administrative charges against 28 employees who participated in the videotaped party. The disciplinary action consisted of the discharge of seven employees and a range of suspensions for the remaining employees. The internal affairs director himself was transferred for failing to open a prompt investigation. Pursuant to the collective bargaining agreement between the city and the fire fighters' union, the 28 disciplined fire fighters filed a grievance. The matter went before an arbitrator. According to the labor agreement the employer was to conduct disciplinary investigations when it received complaints or had reason to believe that grounds for discipline existed. The arbitrator interpreted this provision to mean that the city was required to institute an investigation at the time it learned of the alleged misconduct and that the six-month delay in commencing this investigation was far beyond any reasonable time period. Consequently, the arbitrator concluded that the disciplinary action should be rescinded. The arbitrator did consider the question of whether public policy would require the discipline to be upheld. The arbitrator concluded that the likelihood of the reoccurrence of the behavior was small given the fact that of the fire fighters were very long term employees and that the case had received extensive publicity. The arbitrator concluded that the fire fighters were capable of rehabilitation and their conduct would not reoccur. He ordered them reinstated with full back pay. The union filed suit to enforce the arbitration and the action was resisted by the city who sought vacation of the award. Trial court granted the union's position and city appeals. 

HELD: Judicial review of arbitration awards is extremely limited. This restriction reflects the legislature's intent to provide finality to labor disputes subject to arbitration. One ground for overturning an award, however, is if the award contravenes established norms of public policy. In order to vacate 

Arbitrator's authority 
A fire department executive learned of the existence of a videotape of an unauthorized retirement party that had been held some seven years earlier at the firehouse. The videotape depicted fire fighters drinking alcoholic beverages inside the firehouse; leaving the firehouse to respond to calls; some participants making offensive racial, gender, and ethnic slurs; and others engaging in raucous conduct, such as exposing their buttocks and genitals. The matter was referred to the internal affairs director. 
October 2001 
Volume 15, Number 10 
an award under the public policy exception the court is required to undertake a two-step analysis. First, the court must inquire whether a well-defined dominate public policy can be identified and second, whether the award violates that policy. As to the first question, it is without doubt that the State of Illinois favors safe and effective fire protection service. This public policy is articulated in a variety of state statutes. The arbitrator ordered the workers reinstated because of the lack of timeliness in launching the investigation. However, the collective bargaining agreement does not provide for any specific time in which an investigation should be launched. Public policy considerations regarding the health, safety, and welfare of the public and its fire prevention services mitigate against inappropriate remedies for violation of fire department rules. While the arbitrator cited six reasons that he was assured that the fire fighters would cause no future danger to the public, he made that determination without considering the merits of the case. The record reflects that the arbitrator viewed the tape only for the limited purposes of showing that it was the basis for the city to impose discipline. Without considering the conduct contained on the tape the arbitrator was unable to fashion an appropriate award. Failure to consider the merits of the allegation ignores the seriousness of any possible lack of readiness of fire fighters who are on a 24-hour response status. It is without doubt that fire fighters who were in a state of intoxication are ill-equipped to protect the citizens of the city. Given that the arbitrator held no hearing whatsoever on the merits of the alleged infractions and failed to consider any evidence against the fire fighters themselves, the award failed to promote the safety and welfare of the public in direct contravention of well established public policy. As prior cases have held when public policy is at issue, it is the court's responsibility to protect the public interest at stake. That is why courts will not give the drunken pilot the opportunity to fly a commercial airliner again even though no harm befell his passengers. Arbitration award order vacated and discipline reinstated. [Chicago Fire Fighters Union,  Local 2 v. City of Chicago, 751 N.E.2d 1169 (Ill. App. Ct. 2001)] 

Leave 
The fire fighters' union filed suit against the city contending that various civil service commission rules regarding the accumulation of annual leave and the payment of longevity pay contradicted Louisiana statutes on the same topics. On the question of accumulation of leave, the fire fighters objected to a "use it or lose it" policy of the city that limited the number of vacation days that could be carried forward from year to year. On the longevity pay question the fire fighters objected to the fact that the city paid two and one-half percent every five years while state law required two percent each year. Trial court ruled for fire fighters as did intermediate appellate court. City appeals. 

HELD: The city's "use it or lose it" leave provision limits the carryforward for vacation time to either 45 or 90 days depending on when the particular fire fighter was employed. State statute specifies that fire fighters shall be given annual leave days with full pay up to a specific maximum number of days and prohibits the forfeiture of vacation privileges for any cause. The city argues that its "use-it-or-lose-it" provision does not violate the terms or the intent of the statute. The statutory guarantee, they argue, relates to the minimum number of vacation days earned by a fire fighter. The city's rule, while allowing earned vacation days be carried forward, simply places a reasonable limitation on the period of time within which the earned days must be used. Thus, the rule denies a fire fighter the right to earn a vacation day in one year at one salary and then to demand payment for those vacation days 15 years later at a higher salary. The rule does not require forfeiture of earned vacation days when the fire fighter has been given a reasonable opportunity to use the vacation. A ceiling on the number of vacation days a fire fighter may carry forward is not in and of itself a forfeiture of earned vacation days, unless the fire fighter was denied the opportunity to use the days. Louisiana law neither grants nor denies fire fighters 
October 2001 
Volume 15, Number 10 
the right to carry forward vacation days to future years. The statute is simply silent on the issue and, therefore, does not conflict with the commission rule limiting the number of days carried forward. On the question of longevity pay, state law mandates a minimum monthly salary for fire fighters of $400 and a two percent salary increase for each year of additional service up to 20. The city pays far beyond the minimum of $400 but pays only a two and one-half percent longevity pay approximately every five years. Thus, the city rule results in most cases in a lesser salary than if the statutory increases were implemented. The city contends that state statutory pay scheme providing for minimum salary and longevity increases should be viewed as a whole. The city argues that the combined salary and longevity payments received by city fire fighters is well above the minimum level required by the statute. This view ignores the specific mandates of the statute regarding the amount and frequency of longevity pay. The court cannot allow the statute to be disregarded. The city's best recourse lies with lobbying the legislature to change the law. Reversed for city on carryforward question but affirmed for fire fighters on longevity pay issue. [New Orleans Firefighters Local 632 v. City of New Orleans, 788 So.2d 1166 (La. 2001)]  granting 15 days annually and allowing a buy-back at the end of each year or at retirement. The city gained additional managerial controls. Shift swapping will be limited and increased medical examination of injured fire fighters will be conducted. A light duty assignment category was also created for injured personnel. 

LaPorte, Indiana 

fire fighters 
Wage parity with the city's police officers highlights the new labor contract for LaPorte fire fighters. To accomplish parity, individual fire fighters will gain wage boosts as high as 15 percent, compared to four percent for other city employees. The fire chief will now earn the same wage as the police chief, about $46,000 annually. 

Pinellas Park, Florida 

fire fighters 
The 75 members of Local 2193, International Association of Fire Fighters, AFL-CIO, last month endorsed a new labor pact with the City of Pinellas Park. Wages and incentives will rise an average of 20 percent over the three year life of the deal. By the end of the contract, starting pay will be $32,206. Fire fighters and paramedics will also receive increases in pension benefits in the last two years of the agreement. 
Settlements 

Boston, Massachusetts 

fire fighters 

Plant City, Florida 

fire fighters 
After months of political conflict with the mayor, Boston's fire fighters have overwhelmingly approved a new four-year labor accord. Members of Local 718 of the International Association of Fire Fighters, AFL-CIO, have worked without a contract for about two years. The deal provides a 4.5 percent pay raise retroactive to July 1999, a 4 percent boost retroactive to July 2000, another 4.5 percent retroactive to July of this year, and a final 4 percent coming in July 2002. The city also increased longevity pay for fire fighters with more than five years service. A standardized sick leave policy was established 
Fire fighters in Plant City are now eligible for a two percent cost of living raise and up to a three percent merit raise under a newly approved labor pact. The contract also creates for the first time a career development program. Movement up the career ladder will increase pay by 2.5 percent at each step. The average Plant City fire fighter earns more than $27,000 annually while working a 56-hour week. Local 2103 of the International Association of Fire Fighters, AFL-CIO, is the bargaining agent for the fire fighters.