December 2001 
Volume 15, Number 12 

Are fire fighters unfit to be parents? 
A District of Columbia fire fighter this month asked a Maryland appeals court to overturn a lower court ruling granting custody of his two children to his ex-wife. Gerald Burton claims he lost custody of his six-year-old son and five-year-old daughter because he works 24-hour shifts followed by three days off. The case is being watched closely by fire fighters and other shift workers. 

"If the decision to take custody away from Mr. Burton hinges on that he works shift work, everybody who works shift work better beware. I think you're going to see a lot of other cases," Ray Sneed, president of the D.C. Firefighters Association told the Washington Post. "Today it's Jerry Burton. Tomorrow it's every fire fighter and those who work in shifts. Trust me: when this thing starts flipping, it could get very ugly from a societal point of view," Sneed added. 

Burton's ex-wife Diedre rejects the notion that the case is about shift work. She claims the trial judge awarded her custody of the children because her former spouse lied to the court about changing his work schedule. She also claims that Burton is trying to use the events of September 11 and the heroics of other fire fighters to gain sympathy 

 for his bid for custody. 

The appeal stems from a ruling by a Prince George's County judge last February that Burton's work hours did not provide a stable environment for children. Burton who resides in a Maryland suburb of D.C., volunteered to change his work schedule to a traditional 40-hour week and the judge made the offer a condition of a custody agreement in which the fire fighter and his ex-wife shared custody. But less than a month into the agreement, Diedre Burton returned to court complaining that the fire fighter did not live up to his part of the agreement. 

For his part Burton claims he swapped shifts with other fire fighters so that he would be home with the children at night. On several occasions, however, he was not able to complete a shift swap and a cousin looked after the children. Burton told the court that no nine-to-five job was available for him to transfer to. 

Viewing the lower court ruling as an attack on their ability to retain custody of their children, many area fire fighters appeared at the appeals court hearing in support of Burton's position. A decision in the matter is months away. 

Light duty must be equal for pregnant fire fighters 
A federal court jury this month found that Bernalillo County, New Mexico, violated fair employment laws when a fire department official refused to allow a pregnant fire fighter to go on light duty without taking a pay cut. The jury awarded Kelli Murtagh $35,000 for emotional distress. 

In her suit Murtagh claimed that in 1999 the county's former fire chief, after consulting with the county attorney, approved her request to go on light duty, but only if she took a cut in hours. While the 

 normal fire fighter schedule called for a 56-hour workweek, light duty had traditionally involved 50 hours per week. Murtagh claimed that her hours were cut to 40 per week resulting in reduced pay and benefits. 

The jurors found that the fire chief's actions constituted sex discrimination and violated federal pregnancy discrimination law. The trial judge must still rule on whether Murtagh is due back pay. 

While still pregnant Murtagh returned to 
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regular duty but subsequently produced a doctor's note saying she could not engage in fire fighting. The county offered her a paramedic position, an offer she rejected out of concern for the welfare of her unborn child. Murtagh criticized the department for  requiring her to continue in a fire combat position while pregnant. "They made me choose between protecting my fellow fire fighters and protecting my baby," Murtagh stated. "I should never have been put in that position." 

Fallen FDNY personnel to be paid overtime 
A tragedy such as occurred September 11 produces practical considerations that are sometimes overlooked. In the case of the New York City Fire Department (FDNY) a judgment had to be made regarding the pay of the personnel lost in the collapse of the World Trade Center. FDNY officials announced last month that more than $4 million in overtime was to be paid to the fire fighters lost in the tragedy. 

From September 11 until September 29, the 343 missing fire fighters were paid full salaries plus 320 hours of overtime. The payments may also boost pension benefits for their survivors. The overtime stopped when it became clear that the missing personnel did not survive the attack. 

"We stopped paying overtime when all hopes of a recovery were exhausted, and a presumption was made," said one FDNY official. "They have found people alive up to 14 days after a disaster, and we went a little beyond that for our families." 

In addition to being maintained on the payroll, 24 fallen fire fighters gained pension 

 increases when they were promoted posthumously. Meanwhile, Mayor Rudolph Giuliani plans to ask the state legislature to modify pension law to allow the overtime pay to be credited toward retirement. Under the current law, the overtime cannot be credited for pension purposes because it is paid to the fire fighters' families after death. 

FDNY officials also announced that battalion chiefs and deputy chiefs who supervised fire suppression and rescue operations at the WTC would receive overtime pay rather than compensatory time for the extra hours worked. Under the city's contract with the Uniformed Fire Officers Association, supervisors are normally awarded compensatory time. Because of the extremely long hours worked, however, the chiefs will collect pay for half of their overtime hours and time off for the remaining hours. The accumulated pay will average about $5,000 per supervisor. FDNY personnel, who usually rotate between nine-hour daytime and 15-hour nighttime tours, worked 12-hour shifts daily for the period following the attack. 

. . . but survivors may be planning to sue 
Hundreds of New York fire fighters filed legal notices this month as a prelude to seeking monetary damages for any potential medical problems that might arise from the World Trade Center attacks. 

Some of the fire fighters who have worked the site since September 11 have complained of respiratory problems and have questioned whether they were issued proper filtering equipment. 

Under New York law, a notice of claim must 

 normally be filed within 90 days of an incident in order for an individual to later be allowed to sue a city. Governor George Pataki has extended the filing period because of the gravity of the incident. 

The filing of the notice is necessary to preserve the right to sue at a later time. The notice also gives the city the opportunity to settle claims without going to court. 

No court has yet determined whether or not the city has liability to the rescue workers. 
December 2001 
Volume 15, Number 12 

Buffalo using rotating closures to cut costs 
Want to solve your staffing problem and save money at the same time? Deadline a fire company occasionally. That is the strategy the City of Buffalo, New York, is following in response to both a fiscal crisis and a lack of fire fighters. Last month the Common Council approved a plan to close one or two fire companies on a rotating basis through June. The plan is expected to save the cash-starved city in excess of $500,000 by not paying overtime to reach minimum manning levels. Normally, off duty personnel would be called back at an overtime pay rate to maintain staffing required levels. 

Under the labor contract, fire officials have the authority to close one to two companies daily when available personnel drop below minimum manning levels. Hazardous materials companies are excluded from the plan and no firehouse will be completely closed. 

The program, which began as a pilot project in September, has not had an effect on response times, according to fire department officials. Union leaders disagree, however, suggesting that response time data can be misleading. Anthony Hynes, vice 

 president of the Buffalo Professional Fire Fighters Association, contended that "serious" fires have increased since the rotating shutdowns and in some cases flames have spread faster and caused more damage. 

Hynes stated, "I'm happy there are no layoffs, but I recognize that this is a time when hard decisions have to be made. But I'm concerned about the safety of our fire fighters." 

Some lawmakers have criticized the fire fighters' union for targeting certain councilmembers for defeat in recent elections. They also accused union members of misleading the public by suggesting that entire fire stations would be closed under the cost-cutting strategy. 

In an effort to close the city's $60 million budget gap one councilmember has suggested imposing a ten percent payroll tax on exempt employees - including fire fighters and police officers - who are not bound by city residency requirements. Councilmember Charley Fisher III asserts that it is unfair to have laid off 75 employees who are Buffalo residents but protect the jobs of individuals who live in the suburbs. 
Litigation 
few individuals employed in public safety normally fall within the protection of the ADA, the legal definition of "disability" continues to develop, with some courts taking an expansive viewpoint. A decision in Barnett is expected in the spring. 

No fire service-related cases are currently before the justices. 

Supreme Court update 
This month the justices heard arguments in a private sector labor case that could have an impact on public safety agencies. The case, U.S. Airways, Inc. v. Barnett, No. 00-1250, raises the question of whether the reasonable accommodation requirement of the Americans with Disabilities Act (ADA) requires disregarding a bona fide seniority system, if necessary, when reassigning disabled personnel. Since shifts and work assignments within public safety organizations are often bid based on seniority, a requirement to ignore this system in order to accommodate disabled personnel would constitute a major change in the organizational culture. While 

Cases of interest 

Dismissal procedures 
Dolan was a 15-year veteran fire fighter who held the position of fire engineer. He was responsible for driving the fire engine to the fire scene. He was generally viewed as an excellent fire fighter by his colleagues but had a bleak disciplinary 
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history. Specifically, he had been involved in a series of alcohol-related incidents, including an arrest for operating a vehicle while intoxicated. He had been suspended several times as a result of the incidents. In 1997, while driving home on a snowy evening Dolan lost control of his vehicle and slid into a ditch. A police officer witnessed the accident and saw Dolan flee the scene. When officers arrived at Dolan's home to investigate the incident, the officers suspected that he was intoxicated. After conducting a field sobriety test one of the officers attempted to arrest Dolan for operating a vehicle while intoxicated. A struggle ensued in which two officers suffered minor injuries. Dolan was charged with resisting arrest as well as the intoxicated driving offense. Ultimately, he was found guilty only of interfering with an official act, the other charges being dropped. Prior to the disposition of criminal charges the fire chief discharged Dolan from his position for violating fire department regulations. The chief's decision was based on the most recent incident as well as Dolan's extensive disciplinary history. Following the loss of his job Dolan voluntarily sought and completed a substance abuse treatment program. The civil service commission upheld the termination decision and Dolan appealed to the trial court. Several fire fighters testified to Dolan's competency as a fire fighter. His substance abuse counselor testified that Dolan had been sober since completing his outpatient treatment program. The court found that Dolan's misconduct was not sufficiently detrimental to the public interest to justify his termination. It also found that he was a recovering alcoholic and had recognized the underlying problem of his off-duty conduct. The trial judge believed that several months' suspension would be an appropriate sanction but upon reviewing Iowa statute he concluded that his options were limited to either affirming the civil service commission decision or reinstating Dolan. He determined that he was not permitted to simply suspend Dolan. Consequently, the court reinstated Dolan with back pay as of the date of his discharge. The civil service commission appeals.  HELD: Iowa statute provides for a trial de novo from an appeal of a civil service decision. A trial de novo must be distinguished from a review de novo. These are different proceedings. In a review proceeding the reviewing court is restricted to the record made in the lower tribunal. In a trial de novo the court hearing the case anew is permitted to receive additional evidence to that presented to the civil service commission. The trial de novo would also permit the court to select the same remedies that are available to the civil service commission. In the case of fire fighters, the fire chief may suspend, demote, or discharge a fire fighter for misconduct. On appeal the civil service commission may affirm, modify or reverse the case. Thus, the commission has the same disciplinary options as the fire chief and on an appeal de novo the trial court would similarly have at hand the same disciplinary options as the chief and the commission. The trial court thus misinterpreted the state law to believe that it was limited in the disposition it could make in this case. The objective of the trial denovo is to permit the trial court to independently determine whether the sanction imposed by the civil service commission is warranted. The appeals court similarly is entitled to modify the commission's decision in its de novo review. Under Iowa law a fire chief may discharge an employee for misconduct. Dolan was discharged for violating departmental rules which provide that the ordinary rules of good behavior observed by law abiding citizens must be observed by fire fighters. He was found guilty of violating the law that prohibits interference with official duties. The struggle with police officers disgraced and reflected poorly upon Dolan and, by extension, on the fire department. In determining whether dismissal was warranted in this case the court must consider the primary objective of the state statute, which is to protect the public's interest. Dolan's consistent disrespect of authority in public as well as his failure to exercise self-control was sufficiently detrimental to the public interest and warranted termination. He contends, however, that evidence of his rehabilitation as an alcoholic 
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mitigates the effect of his past behavior. Ordinarily, evidence of rehabilitation of alcohol abuse following a termination decision would not be relevant in a subsequent de novo proceeding. Such proceedings consider facts and circumstances leading to the original termination. The evidence that Dolan no longer consumes alcohol does not impact the issue of misconduct or the circumstances of the termination. Fire fighters are protectors of the community. In order to maintain public trust fire fighters must adhere to the highest standard of respect for others. Not only must fire fighters maintain the trust of the public to whom they are charged to serve, they must also have the respect of their colleagues who are called to place their very lives in each others' hands. Detrimental conduct by a member of the fire department has an adverse effect on the overall morale and efficiency of the department. Dolan's discharge was warranted. Reversed with dismissal of fire fighter reinstated. [Dolan v. Civil Service Commission of the City of Davenport, 634 N.W.2d 657 (Iowa 2001)]  Ultimately, the town sought a court injunction to prevent the matter being from being sent to an arbitrator. The trial court determined that the contract's arbitration clause did not specifically include language that excluded grievances from the arbitration procedures. The union moved to dismiss the suit on the grounds that the collective bargaining agreement specifically left the decision about jurisdiction to the arbitrator. The trial court ultimately agreed that it had no authority to determine whether the grievance was arbitrable. The town appeals. 

HELD: The prime issue in this case is whether the trial court has jurisdiction to determine whether fire fighter grievances are arbitrable under the collective bargaining agreement. Generally, the question of whether a controversy is arbitrable under a contract is a question of law for the courts to decide. Nonetheless, a presumption favors arbitration when the claim falls within the scope of an arbitration provision. An arbitration clause in a contract should not be denied effect unless it may be said with positive assurance that the clause is not susceptible to an interpretation and covers the asserted dispute. Even the arbitrability of a dispute may itself be subject to arbitration if the parties agree. The contract in question defines "grievance" as an allegation by a bargaining unit employee that there has been a breach, misinterpretation, or improper application of the contract. Prior case law has found that this definition does not explicitly exclude discipline from grievance procedures. When there is ambiguity as to what type of arbitration clause is contained in an agreement and whether arbitration is applicable, doubt must be resolved in favor of arbitration. The language of the contract also expressly confers power upon the arbitrator to determine whether he has jurisdiction. When a collective bargaining agreement reserves a jurisdictional determination for the arbitrator, the court should not make an independent determination of arbitrability of the grievance. In this case, the trial court was correct and it lacked the jurisdiction to determine the arbitrability of the grievance. It is 

Dismissal procedures 
Watkins and Thomas were fire department employees who were terminated because they refused to give information to their superiors concerning alleged misconduct by another fire department employee. The two fire fighters contended that to do so would reveal confidential union information. During the process of terminating the two fire fighters they filed a grievance under the collective bargaining agreement between the city and the union. After the three-step grievance failed to resolve the matter they demanded arbitration. The city responded that arbitration was not available for disciplinary action and their only appeal was to court. Meanwhile, the union filed an unfair labor practice charge with the state labor relations board claiming that the town's actions in firing the two fire fighters interfered with their right to engage in constitutionally protected activity. The labor board agreed and ordered the fire fighters reinstated. The legal appeal continued, however. 
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the duty of the arbitrator to make such decisions. Given that the state labor board has ordered the two fire fighters reinstated, arbitration on the merits of their grievances may now be moot. Affirmed for fire fighters. [Union Township v. Union Township Professional Firefighters' Local 3412, 756 N.E.2d 204 (Ohio Ct. App. 2001)] 

Riverside, California 

fire fighters 
Concerns about turnover in the Riverside Fire Department served as the impetus for a new multi-year labor contract that grants pay hikes in excess of 20 percent. The new pact provides five percent wage boosts in January 2002, July 2002, July 2003, and January 2004. In recent years about ten fire fighter/paramedics have left the department for better paying agencies. The pay moves the base wage of veteran fire fighters to over $55,000 next month. The contract, which expires in July 2004, also grants additional pay to shift fire investigators and rescue team members. The Riverside City Fire Fighters Association, Local 1067 of the International Association of Fire Fighters, AFL-CIO, is the bargaining agent. 

Santa Fe, New Mexico 

fire fighters 
Settlements 

Dunkirk, New York 

fire fighters 
A three-year labor contract was approved this month between the Town of Dunkirk and its two dozen fire fighters represented by Local 616 of the International Association of Fire Fighters, AFL-CIO. The contract calls for raises of 3.9 percent in 2002, 3.2 percent in 2003, and another 3.2 percent in 2004. Changes in longevity pay and holiday pay are also part of the agreement. 
Santa Fe fire fighters have gained a half-percent recurring annual raise to settle a dispute over whether fire fighters should have been paid last year for a snow day. The settlement will average about $200 per year per fire fighter. The half-percent will be added to the 3.5 percent raise already negotiated for the start of the next fiscal year in July. The snow day controversy arose when the mayor gave nonessential city employees a day off last December due to snow. Fire fighters were required to work. The fire fighters' union, Local 2059 of the International Association of Fire Fighters, AFL-CIO, filed a grievance arguing that fire fighters should have been paid double time for the day. The added raise settles that claim. 

Hernando County, Florida 

fire fighters 
Variable raises averaging 7.8 percent highlight the new labor agreement between Hernando County and its fire fighters. Starting pay will rise $2,000 to $25,524 while beginning wage for fire fighter/paramedics goes to $31,999. The pact covers about 70 fire fighters who belong to Local 3760 of the International Association of Fire Fighters, AFL-CIO. 

Portland, Maine 

fire fighters 
A new two-year agreement approved this month grants Portland's 231 fire fighters pay raises of two percent each year. The contract, which is effective through June 2003, provides for the modest pay increases because of tough financial circumstances in the city. The fire service personnel are members of Local 740 of the International Association of Fire Fighters, AFL-CIO. 
 
December 2001 
Volume 15, Number 12