November 2001 
Volume 15, Number 11 

Bargaining bill killed in Senate on narrow vote 
"Close but no cigar" characterizes efforts to pass a federal law granting collective bargaining rights to all fire fighters and police officers. The Senate Democratic leadership this month sought a vote on S.952, "The Public Employer-Employee Cooperation Act," by attaching it as a rider to a spending bill for the Departments of Labor, Education, and Health and Human Services. The strategy failed, however, when supporters narrowly failed to overcome a Republican procedural move that blocked consideration of the proposal on its merits. 

Senate Republicans threatened to kill consideration of the spending bill with S.952 attached by filibustering and other procedural tactics. In such cases, the procedural blocks can be overcome with a successful cloture vote. Under Senate rules, however, a three-fifths "supermajority" is necessary to shut off the stalling tactics. The effort to consider the first national public sector bargaining law was defeated 56 to 44. Despite an apparent majority of Senators favoring the measure, full consideration of the matter was blocked. 

The bill would assign the Federal Labor Relations Authority to oversee collective bargaining by emergency service workers in states that do not currently permit union contracts. Supporters of the measure, including Majority Leader Thomas Daschle (D.-S.D.), said it would ease labor restrictions in 22 states. Republican opponents claimed that passage of the bill would preempt local laws in 27 states. While the cloture vote generally followed party lines, 

 seven Republicans voted for cloture while two Democrats voted to block consideration of the amendment. The Senate's one independent, James Jeffords of Vermont, sided with the Democrats. 

Senator Dashcle, who proposed the amendment, argued that granting bargaining rights to fire fighters and police officers was particularly appropriate in light of recent events. Republicans responded by insisting that such matters are best left to the states. Republicans had earlier produced a memo that claimed that passage of the Daschle proposal could lead to strikes by fire fighters and police officers during a terrorist attack. 

Harold Schaitberger, General President of the International Association of Fire Fighters (IAFF), AFL-CIO, labeled the strike argument "trash." Passage of a national collective bargaining bill is the number one legislative priority of the IAFF. Various national police groups including the Fraternal Order of Police, the International Union of Police Associations, AFL-CIO, the International Brotherhood of Police Officers, and the National Association of Police Organizations have also lobbied for passage of S.952. 

Whether the proposed bargaining law will receive additional consideration by either body of Congress during this term is unknown at this time. Over 180 of the 435 members of the House of Representatives have signed on as co-sponsors for the companion bill. That measure has not been considered by the full House. 

. . . but Congress does raise federal death benefit 
Congress did approve raising the amount awarded to survivors of public safety officers killed in the line of duty to $250,000. The increase was passed as part of anti-terrorism legislation enacted last  month. President Bush signed the bill into law on October 26. The provisions of the law were made retroactive to January 1. Thus, the family of any fire fighter or police officer killed in the line of duty since 
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the first of the year is eligible for the $250,000. Other legislation enacted within the last month mandates that survivors of public safety personnel killed in the September 11 attack be paid the benefit amount within 30 days of application.  The Public Safety Officer Benefit was first passed into law in 1976 to assist families of fire fighters and police officers who are killed or totally disabled in the line of duty. The original benefit was $50,000. 

Fire fighters clash with police at WTC as tensions erupt 
In a violent confrontation that revealed tensions over the World Trade Center (WTC) tragedy, several hundred New York City fire fighters clashed with police officers at "Ground Zero" November 2. The fire fighters were protesting plans to reduce the number of personnel searching for human remains at the site. About a dozen fire fighters were arrested - including three top fire union officials - as a result of the melee in which five police officers were injured. 

The march, which began peacefully, turned violent when demonstrators broke through barricades and scuffled with police. Minutes later the crowd moved to City Hall where they were met by police officers in riot gear. Protestors were heard shouting, "Rudy must go!" - a reference to outgoing Mayor Rudolph Guiliani. 

Mayor Guiliani later blasted the demonstration organizers for misleading fire fighters into believing that the city no longer cared about recovery of remains at "Ground Zero." Fire union officials responded by blaming the police for starting the confrontation. 

At the heart of the dispute was a new city plan to reduce the number of fire fighters, police officers, and emergency crew "spotters" at the WTC site because of safety concerns. "Spotters" pinpoint human remains at the site. Construction crews then stop work and special recovery teams remove the debris and gather the remains. The news of the plan prompted an angry response from fire service personnel. Union officials labled the WTC site "sacred ground." 

Several arrests were made at the WTC scene. Additional fire fighters were arrested following review of a videotape of the incident. Union officials claimed the follow-up arrests were due to the 

 criticism of the mayor. Among those arrested were Peter Gorman, head of the Uniformed Fire Officers Association, and Kevin Gallagher, president of the Uniformed Firefighters Association (UFA). 

A week after the event the mayor ordered the investigation and arrests halted. The announcement came as the mayor doubled the number of fire fighters at the scene to 50 after earlier cutting the staffing to 25. Meanwhile, the Manhattan District Attorney's Office offered a deal to all arrested fire fighters. The prosecutor's office agreed to drop all charges after six months if the defendants stayed out of further trouble. 

The protest was the latest incident in simmering tension between fire fighters, police officers, and the city administration. Recently, fire and police personnel have clashed over their respective roles. Some observers say the conflict has its origins in the 1930s when the police department formed its own emergency rescue team. In recent years the two agencies have argued over whether fire department personnel or the police department Emergency Service Unit should handled building collapses, explosions, and other rescue incidents. Each group criticized the other after the original WTC bombing in 1993. The fire department accused the police of "grandstanding" by using a police helicopter to effect rescues from the top of one of the towers. Police officials alleged, but never proved, that some fire fighters looted bars and liquor stores during the incident. 

Outgoing Fire Commissioner Thomas Von Essen, himself a former union president, has not been immune from criticism by his subordinates. He was booed by fire fighters at a benefit concert last month. 

In the wings of the conflict is a tentative labor 
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agreement that has been approved by UFA leadership but has yet to be ratified. The pact calls for raises of 12 percent over 30 months. Many fire  fighters now view the pay hikes as inadequate and believe the contract will be rejected by the union's membership when put to a vote. 
Litigation 
carrying the float in an apparent parody of a dragging murder death of a black man in Texas some months earlier. All three of the men participated in the parade solely as citizens of the community and were not wearing uniforms or other insignia that would identify them as police officers and fire fighters in the City of New York. The day following the parade a television station aired a videotape featuring the "Black to the Future" float. Much public controversy ensued. When it was discovered that city personnel had participated in the float, the New York City mayor was quoted as saying that he had talked about the matter with the police and fire commissioners and they had agreed that any police officer or fire fighter involved in "this disgusting display of racism" would be fired. When the three city employees learned that their departments were interested in talking to them, they reported to their stations. They were immediately suspended from duty. Disciplinary action was instituted against the three. The matter went before an arbitrator who ruled that the three should be dismissed. The police commissioner and fire commissioner adopted the recommendation and the three individuals were discharged from their respective departments. They subsequently filed suit claiming that their dismissals were in violation of their First Amendment free speech rights as well as their due process rights. Trial court rejected the police commissioner's and fire commissioner's request for summary judgment based on the theory of qualified immunity. Summary judgment was granted to the commissioners on the due process claim. The various municipal defendants appeal. 

HELD: For over thirty years the Supreme Court has consistently held that while government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nevertheless 

Supreme Court update 
Last month, the Supreme Court declined to review Chicago Fire Fighters Union, Local No. 2 v. City of Chicago, Illinois, No. 01-365. The refusal brings to an end a challenge by white fire fighters to the city's affirmative action promotions. The dispute began in 1973 when the federal government accused the city of racial discrimination in fire department promotions. The suit was settled with a race-conscious affirmative action plan. Lower courts upheld the appropriateness of the plan. 

Cases of interest 

Dismissal procedures 
Steiner, a fire fighter, hosted a barbecue at his home for several of his friends including Walters, another fire fighter, and Locurto, a police officer. They discussed the possibility of creating a float for their town's annual Labor Day parade to be held the following day. The group had previously sponsored floats that parodied various racial groups, television shows and movies. Ultimately, the group decided to enter a float entitled "Black to the Future" parodying the fact that the predominantly Caucasian community in which they resided was facing possible racial integration. The float was prepared for the parade but because of the heavy rain the parade was canceled. Consequently, the "Black to the Future" float never reached the viewing stand where local politicians were judging the float. Rather, Steiner, Walters, Locurto, and several friends sat on the float costumed in black face. They chanted various race-related slogans and carried props, including a fried chicken bucket. A number of the individuals ate watermelon and threw the rinds at the audience. Walters, in one instance, let himself dangle off the back of the truck 
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prohibits it from punishing its employees in retaliation for the content of their protected speech. To make out a claim of illegal retaliation, a plaintiff must establish that what he said or did constituted speech on a matter of public concern and that the speech was a motivating factor in the adverse action taken by the employer. The government employer may nonetheless sanction the employee if the speech's disruptive effect outweighs the First Amendment value of the employee's comments. This rule applies even if the government employer is merely predicting a disruptive effect without an actual disruptive effect occurring. In this case the trial court should have inquired into the subjective intent of the police commissioner and fire commissioner when they dismissed the employees. Given this is a genuine issue of material fact that needs to be resolved, the motion for summary judgment based on qualified immunity is rejected. As to the due process claim, however, the police officer and fire fighters were afforded the appropriate process due them. Ordinarily, the due process clause of the Fourteenth Amendment requires a local government to afford its employees some kind of hearing prior to depriving them of a significant liberty or property interest. The employees in this case possessed a constitutionally protected property interest in their tenure as public employees, terminable only for cause. Procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards. Here, the former public safety employees complain that their employer had already made up its mind to terminate them prior to giving them a hearing. Thus, the fire commissioner and police commissioner were not impartial hearing officers but rather had already reached a decision before the pre-termination hearing. However, the pre-termination hearing does not purport to resolve the propriety of the discharge but serves mainly as a check against a mistake being made by insuring that reasonable grounds exist to support the termination. Additionally, federal courts have never  held that a neutral hearing officer is a necessary component of due process at a pre-termination hearing. Given that state law provided a full formal post-deprivation hearing in cases of termination, constitutional due process was satisfied in this case. Remanded for further proceedings on the First 
Amendment claim. [Locurto v. Safir, 264 F.3d 154 
(2nd Cir. 2001)] 

Handicap discrimination 

Collis was employed as a paramedic in a neighboring county when he applied for a position with Gwinnett County. He passed the physical examination even though he had a forty percent loss of hearing in each ear and wore hearing aids. When placed in the training program he successfully completed the skills portion and was assigned to six weeks of field training. During the field training he evidenced good relationship with patients but exhibited problems with communication. One of his field training officers wrote a memo recommending that he be fitted with special hearing aids and headphones in order to better hear the radio. The county agreed to purchase the new hearing aids. Collis was assessed by a doctor and new hearing aids were fitted. The headphones, however, were not provided nor did Collis request them. Some months later the paramedic supervisor recommended that Collis be terminated. He had demonstrated problems with hearing radio communications and knowing which radio channel to use. Collis had also demonstrated difficulty in directly communicating with other people. The county terminated Collis and he returned to his prior paramedic position in the neighboring county. He then filed a handicap discrimination suit claiming that the termination was in violation of the Americans with Disabilities Act (ADA). The county moved for summary judgment. 

HELD: The ADA prohibits employers from discriminating against individuals on the basis of their disabilities. Whether a person has a disability is an individualized inquiry. Under the law, one has a disability if he is substantially limited in a major life 
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activity. When the major life activity under consideration is that of working, "substantially limits" requires, at a minimum, that the individual allege they are unable to work in a broad class of jobs. Likewise, the individual must be otherwise qualified, which means being able to perform the essential elements of the job. The ADA further creates an affirmative duty for employers to reasonably accommodate individuals with disabilities. In this case, Collis has not shown that he has a disability within the meaning of the ADA. While his hearing was in fact impaired, the evidence demonstrates that the supervisor's belief that Collis had limited ability to hear was based on his actual performance not on an irrational perception. He had difficulty talking on the radio and communicating with patients. Likewise, the only job Collis sought from the county was that of paramedic. Nothing in the evidence suggests that the county considered him unable to perform other jobs. Thus, he has failed to show that he was considered to be limited in his ability to work. Likewise, the paramedic has failed to demonstrate that he is otherwise qualified. His poor performance occurred during essential elements of the job - communicating during emergencies. This shortcoming occurred even when the county provided accommodation to him in the form of special hearing aids. The paramedic has  fire or police academy. Any academy graduate who passed the exam was hired as a fire fighter or police officer without regard to their passing scores. Sodolak and Nugent filed suit claiming that this scheme violated Texas law, which required that vacancies for beginning positions be filled by competitive examination. Parties moved for summary judgment. 

HELD: The city admits that it has used the selection procedure for fire fighters and police officers for over twenty years. It argues that the term "beginning position" as used in state civil service law does not include trainees at the fire and police academies. A review of prior Texas law, however, suggests the contrary. Various cases have granted seniority time and probationary service time to individuals while in training academies. Thus, the term "beginning position" refers to trainees, not to individuals who have just been sworn in as fire fighters or police officers. Accordingly the city's hiring scheme violates state civil service law. The city counters that the plaintiffs cannot challenge the recruiting policies of the police department because the collective bargaining agreement between the police union and the city specifically authorizes the city to continue to use the old procedure of giving the civil service exam to cadets after completion of the training academy. The city argues this collective bargaining agreement supercedes the provisions of state statute. While it is true that a labor contract may supercede certain provisions of state law the labor contract is not relevant in this case. The police officer's union is the bargaining representative for current police officers only. The union has no authority to bargain away the rights of non-employees. Since the plaintiffs in this case were not members of the police union and were not employed by the police department, they cannot be held subject to the terms of the bargaining contract. Further, the plaintiffs claim that they were not hired because they were victims of racial discrimination, a choice by the city to give preference to minority and female applicants. While the city claims the individuals were not hired because of spotty work records, evidence 
failed to establish a violation of the ADA. Summary 
judgment for county. [Collis v. Gwinnett County, Georgia, 156 F. Supp.2d 1342 (N.D. Ga. 2001)] 

Selection procedures 

Texas civil service law provides that the selection process for fire fighters and police officers be based on an open, competitive, and free examination that establishes an eligibility list. Two individuals, Sodolak and Nugent, both white males, applied for positions with the fire department and police department respectively. They were not allowed to sit for the respective entrance examinations. Rather, the city, in an effort to improve minority hiring, was administering the entrance examinations only after recruits had completed the 
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suggests the contrary. Testimony from individuals working in the recruiting divisions of the fire department and police department indicated that they were to target minority applicants and to scrutinize minority applications less stringently than applications from whites. Given this evidence, a jury could conclude that the city had deliberately failed to follow state law and intended to discriminate against white applicants in order to increase minority representation in academy classes.  suit against the fire department claiming a violation of the Americans with Disabilities Act (ADA). He claimed he was fully qualified to perform the essential functions of an active duty fire lieutenant. He further claimed that because he was treated as being disabled, he lost many benefits afforded full duty fire fighters, such as career advancement and overtime. Both parties moved for summary judgment. 

HELD: A plaintiff alleging a violation of the ADA must establish that he is a disabled person within the meaning of the law, that he is otherwise qualified to perform his job, and he suffered an adverse employment action because of his disability. To establish disability the plaintiff must show he has a physical impairment that substantially limits one or more major life activities or that he is regarded as having such an impairment. Here, Simms does not argue that he is substantially limited in working but rather claims that the fire department regarded him as being disabled by restricting his ability to perform a range of jobs. Since Simms was precluded from working not only as a fulltime fire fighter but also as a supervisor in training, he is precluded from more than one type of position within the department. Thus, the court finds that he is substantially limited in his ability of work and therefore meets the definition of being "disabled." Secondly, Simms must show that he can perform the essential functions of the job. He contends that despite his diabetes he has always been and continues to be qualified to handle the responsibilities required of a full duty fire fighter. The fire department contends that Simms' condition presents a direct threat to others in the workplace because he might suffer an episode that would place him or others at risk. There is material dispute as to whether Simms is qualified to act as a full duty fire fighter and that dispute must be resolved by a jury trial. Finally, Simms must show that there was an adverse employment action taken against him. Prior case law holds that an adverse employment action must constitute a materially adverse change in the terms and conditions of employment. The city argues that no such action has taken place because Simms retained his rank and base pay and thus has failed to 
Summary judgment for defendants denied. 
Summary judgment for plaintiffs granted on the question of improper use of state civil service tests. [Nugent v. City of Houston, Texas, 159 F. Supp.2d 529 (S.D. Tex. 2001)] 

Handicap discrimination 

Simms was a seven-year veteran of the fire department. He held the rank of lieutenant. During his career he served with a variety of ladder and engine companies. In 1991, he was diagnosed with diabetes. Through a careful regiment of diet and medication prescribed by his doctor he was able to control the disease. Simms did not disclose his medical condition to the department. Rather, the fire department learned of his diabetes after receiving an anonymous letter stating that Simms had been observed "shooting up" while on the job. Shortly thereafter, he was interviewed by the department's medical officer and given a blood test. The department placed him on light duty until he was able to provide more information regarding his medical condition or the alleged drug use. Department policy required that individuals with diabetes remain on light duty while using oral medication or insulin. The department conducted a medical assessment and review of Simms' condition and its affect on his ability to be a fire fighter. As a result he was placed on permanent light duty. Simms sought to alter his assignment by requesting return to full duty as well as requesting transfer to an instructor's position in the training unit. Each of these requests was denied because of his diabetes. Subsequently, Simms filed 
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show that he suffered any loss because of the light duty assignment. However, materially adverse change in the terms or conditions of employment is not limited solely to pay but may encompass other less tangible changes, such as a less distinguished title, material loss of benefits, or significantly diminished material responsibilities. Simms' case fits within this analysis. Simms' case satisfies two of the three pronged test for coverage under the ADA. He is entitled to a jury trial on the question 
without merit, the public employer is not obligated 
to arbitrate the dispute if the grievant submits it to arbitration directly. In this case the labor contract is clear, the union retained control over the grievance process. Reversed and order compelling arbitration vacated. [City of Pembroke Pines v. Zitnick, 792 So.2d 677 (Fla. Dist. Ct. App. 2001)] 

Bargaining subjects 

Beginning in 1967 the fire department provided fire and rescue services for both civilian and commercial aircraft at the city airport. Nearby, the National Guard maintained a daytime fire and rescue contingent. Through a joint agreement between the city and the guard each party aided the other, although the city fire department was the primary provider of services. After a study and much public comment the city council decided to continue its cooperation with the National Guard but transferred primary responsibility for airport fire fighting to the National Guard contingent. The city fire fighters who were assigned to the station at the airport were to be transferred elsewhere. The fire fighters' union construed this action to be an attempt to subcontract fire fighting services and filed a grievance. The union argued that the airport fire services had been historically performed by a member of the bargaining unit, that the authority to contract out contained in the management rights clause of the labor agreement was not intended to permit the city to contract out bargaining unit work, and that the contracting out violated city civil service law as well as the minimum manning provisions of the labor agreement. Meanwhile, the labor agreement expired and before the city and the union had negotiated a new contract, the city signed an agreement contracting the airport fire and rescue services to the National Guard. The union filed suit. Trial court ruled for city and union appeals. 

HELD: In its first part the union argues that civil service statutes require civil service employees to provide all city services and prohibit subcontracting of work to non-civil service employees. The Idaho statutory civil service scheme governs "employees 
of whether he can perform the essential elements of 
the job. Summary judgment is partially granted to the fire fighter while the city's motion for summary judgment is denied entirely. [Simms v. City of New York, New York, 160 F. Supp.2d 398 (E.D.N.Y. 2001)] 

Disciplinary procedures 

Zitnick was a fire fighter who was terminated after an investigation into allegations he falsified materials in a city-sponsored contest. He filed to grieve the matter under the labor contract between the fire fighters union and the city. The union made an independent inquiry of the allegations and declined to pursue the matter to arbitration due to a lack of merit. Zitnick then filed his grievance personally with the city. The city declined to consider the grievance, citing the collective bargaining agreement that stated the union had 21 days to determine if a grievance existed. If in its opinion no grievance existed, no further action was necessary. As a result of the unions refusal to pursue the grievance Zitnick filed suit. Trial court conducted a hearing and ordered the matter to arbitration. City appeals. 

HELD: City claims that the union is a certified bargaining agent that has retained control over the grievance procedure. Therefore, it is not obligated to submit to arbitration because the union declined to pursue the grievance. The city is correct. Under Florida law, where a certified bargaining agent retains contractual control over the arbitral step of the grievance and it declines to process a grievance to arbitration because it believes the grievance to be 
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of cities" but does not address employer-employee relationships with private entities. Civil service laws regulate how positions of employment are filled and dictate the method of appointment, promotion, removal, and discharge. Public services are to be performed wherever practical by public employees. The effort to contract out the fire fighting services had no effect on members of the bargaining unit. No positions were lost; the fire fighters were simply reassigned to different stations. Although the contract with the National Guard will likely make it unnecessary for the city to hire additional new employees for sometime, this does not violate state civil service law. In its second point the union argues that the collective bargaining agreement requires the matter go to arbitration. Idaho law favors arbitration in labor cases. Arbitration allows parties to settle their disputes without expending time and unnecessary expense on needless litigation. The city argues that it need not arbitrate the matter because contracting of services is within the express language of the management rights clause. However, this dispute requires not only an interpretation of the management rights clause but also the sections of the labor contract that specifically discuss the compensation and assignments of airport fire fighters and the minimum manning standards on airport related vehicles. Since the labor agreement provides that arbitration is available for any dispute involving an interpretation and application of segments of the contract, the trial court erred when it did not recognize the enforceability of the arbitration provision. Here, the question presented is whether the city is obligated to bargain over the contracting out of fire fighting services. The union argues that contracting out is a mandatory bargaining subject because it falls within the statutory requirement that the city meet and confer in good faith over "terms and conditions of employment." The United States Supreme Court has held that the subject of contracting out is within the literal meaning of the phrase "terms and conditions of employment," particularly where the contracting out of work performed by members of an established bargaining unit results in termination of members'  employment. Since the Idaho bargaining law is based on the federal National Labor Relations Act (NLRA), it should be interpreted consistent with NLRA cases. NLRA decisions hold that an employer is required to bargain over the contracting of work being done by members of the bargaining unit because of the desire to promote peaceful settlement of disputes. In enacting its labor laws, the Idaho legislature sought to promote negotiations to resolve disputes and provide a statutory framework to follow where collective bargaining failed to yield agreement. Any requirement the city 
bargained with the union on this matter does not 
conflict with the city's management rights. In summary, the fire fighters are entitled to bargain in anticipation of the city's actions to replace union members with National Guard fire fighters to perform the work previously performed by union members. Reversed for fire fighters union. [International Association of Fire Fighters, Local No. 672 v. City of Boise, 30 P.3d 940 (Idaho 2001)] 

Substance abuse testing 

Lalama was a fire fighter who was suffering from an alcohol abuse problem. He so informed his supervisors and he was placed on paid sick leave. He was then admitted into a residential substance abuse program. Upon completion of the program and return to active duty he signed an agreement with the city that he would be placed on probation. One of the conditions of Lalama's probation was that he submit to random drug testing. One particular morning Lalama was ordered to provide a urine sample for drug testing. He urinated into a container provided by the official in the fire department responsible for the drug test. The container was sealed and Lalama placed his initials on the seal. He then placed the container in a bag and both he and the fire department official signed the form that accompanied the container. The preprinted identification number from the form was placed on the label affixed to the seal. Lalama was given a copy of the form and the fire department official 
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retained a copy. The fire department official then placed the bag containing the urine sample in a locked box of which only he and the laboratory courier had keys. He then called the laboratory to send a courier to pick up the sample. Later that afternoon, the courier was observed taking the sample. However, the courier did not fill in the blank for his signature on the transmittal form and no receipt was obtained from him. When the sample arrived at the laboratory the seal was intact along with the form that included the preprinted identification number. Under analysis the sample tested positive for cocaine. Lalama subsequently was terminated from the fire department. He appealed his termination and a hearing was conducted before an administrative law judge. On the question of the chain of custody of the urine specimen, the administrative law judge ruled that the testimony presented demonstrated by a preponderance of the evidence that the specimen that arrived at the lab was the same specimen given by the former fire fighter. Ultimately, the administrative law judge filed a report with the merit system board recommending that the termination be upheld. The board, however, reversed the recommendation, finding two missing links in the chain of custody, in particular the lack of a record on the date and time the sample was picked up and the lack of signature of the individual courier who retrieved the sample. The board ruled the drug test invalid and dropped the charges against Lalama. The fire department appeals. 

HELD: In a case where an administrative agency's findings of fact are contrary to the findings of an administrative law judge who heard the case, there is a particularly strong need for careful judicial review. In this case the sole basis of the board's decision was that the city failed to present adequate evidence of the chain of custody of Lalama's urine sample. Most prior case law involving chain of custody issues have been in criminal cases. Administrative proceedings have a lower legal standard than criminal cases. A party seeking to introduce drug test results only needs to show a reasonable probability that the integrity of the sample 

 has been maintained. Here, the administrative law judge correctly determined that the city had made the required showing of an uninterrupted chain of possession of the urine sample. The sample was immediately sealed in the container and secured. When the laboratory received the sample, the seal 
was unbroken. Even though the courier did not sign 
for the sample or leave a receipt, a fire department official testified he saw the courier remove the sample from the locked box. The evidence was sufficient to demonstrate that the chain of custody had been maintained. The merit board improperly rejected the hearing officer's recommendation. Reversed for fire department. Matter is referred for further proceedings. [In the matter of Mario Lalama, 770 A.2d 444 (N.J. Super. App. Div. 2001)] 

Dismissal grounds 

In 1997, Watkins and Thomas, president and vice president of the fire fighters' union respectively, met with the fire chief and discussed both their own and other fire fighter's concerns about low morale in the department. The employees' concerns centered around instances of inappropriate conduct by a particular fire captain. The chief told the union officials that the incidents they related regarding the captain amounted to outdated hearsay upon which he could not act. The chief told the fire fighters that in order to act upon their concerns he required timely written documentation of instances of the captain's misconduct. Both Watkins and Thomas understood the chief's statement to mean that they must obtain factual information before reporting any future misconduct by the fire captain. Two years later, the fire captain went to a local merchant and attempted to obtain tax-exempt status for items he bought for the fire department. He allegedly became angry at the checker and made inappropriate comments. Two union members heard rumors about the incident and reported them to Watkins and Thomas. Because other employees had been disciplined for bringing the captain's conduct to management's attention, they feared any attempt to report the captain's misconduct 
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would bring retribution. Thus, the reporting union members insisted that Watkins and Thomas shield their identities. Watkins and Thomas decided to conduct an investigation themselves. They went to the merchant and informed the employees that they were investigating the matter as a union issue. They verified the statements regarding the captain's behavior. Watkins wrote a letter on union letterhead to the fire chief, signed as union president, asking that the fire captain be disciplined. Upon receiving the letter, the fire chief launched an investigation into the conduct of Watkins and Thomas. He subsequently asked the two to disclose the names of the union members who had initially reported the fire captain's misconduct. Watkins and Thomas refused to disclose the members' names, claiming that to do so would reveal confidential union information. This action subsequently resulted in Watkins and Thomas being terminated from the fire department. The administrative charges involved conducting an unauthorized investigation and failing to disclose the names of the union members who had reported the captain's misconduct. The union filed an unfair labor practice charge with the state labor board. Following a hearing, the state labor board found that the city had committed an unfair labor practice by terminating Watkins and Thomas because they were engaged in protected union activities. The trial court confirmed the labor board's ruling and city appeals. 

HELD: Ohio labor law guarantees that public employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid and protection." This section of the law is modeled after the federal National Labor Relations Act (NLRA). The NLRA provision has been interpreted by the courts to protect employees from retaliation by employers when they seek to improve working conditions by resorting to administrative and judicial forums. Other courts have held that concerted activities are protected if the activities might reasonably be seen as affecting terms or conditions of employment. Here the activities of Watkins and Thomas in investigating and reporting 

 on the captain's conduct may be reasonably viewed as affecting the terms and conditions of employment. The captain functioned in a management capacity at the fire department. He was investigated because the alleged continued misconduct on his part was affecting the internal atmosphere of the department. All of the actions that Watkins and Thomas took were taken as union officials and were intertwined with 
promoting employee working conditions. Employees' concerted efforts to bring ongoing problems with a supervisor to the attention of 
management are protected activities. The record further reflects that the city had no legitimate reason 
to determine the identity of the union members who reported the incident. The city committed an unfair labor practice when it terminated the union officers for engaging in protected concerted activity on behalf of the union. [State Employment Relations Board v. Union Township Trustees, 755 N.E.2d (Ohio Ct. App. 2001)] 
Settlements 

Columbus, Ohio 

fire fighters 

The new labor agreement between the City of Columbus and Local 67 of the International Association of Fire Fighters, AFL-CIO, will provide a four percent pay hike in each of the contract's three years. The pact is retroactive to June 1. The contract pushes starting pay for fire fighters to just over $30,000 while senior personnel will top a base of $46,000 for the first time. 

Seattle, Washington 

fire fighters 

Members of Local 27 of the International Association of Fire Fighters, AFL-CIO, representing Seattle fire fighters last month approved new contracts that run through the end of 2004. A retroactive one-year contract covers 2001 while a multi-year pact begins January 1, 2002. Initially, beginning fire fighter wage goes to $43,392 while veteran personnel will earn a base of $54,240. Fire lieutenant base wage now ranges between $62,352 and $65,196. Captains now draw $71,712 to