April 17 marked a pivotal day for the national fire union's number one legislative priority. According to the International Association of Fire Fighters (IAFF), AFL-CIO, Representative Mike Rogers (R. - Mich.) became the 218th member of Congress to cosponsor H.R. 1475, the national collective bargaining bill. With 435 members in the House of Representatives, over half now support the Public Safety Employer-Employee Cooperation Act.
Majority support does not mean smooth sailing for the proposal, however. The IAFF must convince the leadership of the Republican-controlled house to allow the bill to come to the floor.
Dubbed the IAFF's number one legislative priority, the proposed law would assign the Federal Labor Relations Authority to oversee collective bargaining by emergency service workers in states that do not currently permit pubic safety union contracts. Despite the existence of a national private sector bargaining law, opponents of H.R. 1475 claim that public sector bargaining should best be left to the individual states.
Representative John Boehner (R. - Ohio), chairman of the Education and
Workforce Committee, has pledged to convene a meeting between the IAFF and
bill opponents to force a compromise that might be brought to the floor
for a vote. Last November, the Senate Democratic leadership attempted to
bring the proposal up for a vote but was denied in a procedural move.
A majority of Senators reportedly favor the bill.
Representative Rogers is the 52nd Republican to endorse the bill, demonstrating strong bipartisan support, according to the IAFF.
Meanwhile, the Kentucky legislature recently killed a bill that would have granted fire fighters in the Blue Grass state the right to bargain. Fire fighters clad in red T-shirts and carrying helmets packed the Senate gallery on April 15, the last day of the session, and watched Senate President David Williams rule that the bargaining bill would not be considered. An attempt to override the ruling fell short by one vote.
The bill, which would have mandated Kentucky municipalities bargain with paid fire fighters over wages and benefits, earlier had passed the Democrat-led House of Representatives. But, one Democratic senator left the chamber rather than vote against the fire fighters. The measure failed 19-18. Under Kentucky Senate rules, 20 votes were needed to bring the bill to the floor for consideration.
The losses of the New York Fire Department (FDNY) on September 11 apparently has not exempted the department from the realities of municipal financing. A $5 billion budget gap for the City of New York is requiring across the board budget cuts. Mayor Michael Bloomberg has unveiled a budget that includes staff reductions and closing of firehouses.
Unless state or federal funds are forthcoming, Mayor Bloomberg intends to close eight engine companies and reassign about 80 fire fighters from investigative and chauffeur duties to suppression companies.
Officials of the Uniformed Firefighters Association reacted harshly at
the news. "We paid in
blood," said one union trustee. Another official said fire fighters will
be the first line of defense in case of another terrorist attack on the
city. "You don't cut an army during wartime, and you don't cut the New
York City fire department when it's reeling from the worst losses in our
history," said union vice president Mike Carter.
The FDNY lost 343 fire fighters and 44 pieces of fire fighting apparatus during the terrorist attack
Compounding the FDNY staffing problems is a report that retirements are running at triple the usual rate. Since January, 343 fire fighters have filed for retirement, compared to 93 during the first quarter of 2001. Currently, about 11 percent of the city's fire fighters and 85 percent of the fire officers are eligible to retire. About 500 fire service personnel retire annually. That many pension applications have been received in the seven months since the tragedy.
A 20-year veteran FDNY fire fighter is entitled to a pension equal to
50 percent of what was earned in the last year of employment. This past
year, many fire fighters who would normally earn about $65,000 saw
their incomes jump to $80,000 due to overtime after September 11. Union
officials are pushing legislation to permit fire fighters to remain on the
job but lock in the higher earnings amount for later computation of retirement
benefits. The mayor stated the proposal was worth exploring if financially
feasible.
The department is planning to hire about 1,200 new fire fighters this year.
Saying it has outlived its usefulness, U.S. District Judge Harry Hupp April 8 ended the Los Angeles Fire Department's (LAFD) 28-year-old quota system of selecting personnel. The system was established in 1974 as part of a consent degree between the city and the U.S. Department of Justice (DOJ) to diversify the fire department.
At the time the LAFD was about 90 percent white. LAFD officials said that today nearly 50 percent of the workforce is black, Hispanic, or Asian.
Under the old decree, after offering jobs to the top candidates the LAFD
would hire out of rank order the best applicants from underrepresented ethnic
groups.
In recent years a sufficiently diverse applicant pool has made such preferential
hiring unnecessary.
The judges ruling came following a suit by a white applicant who was refused permission to take the 1994 selection test. He was rejected again in 1999 because he did not reside in Los Angeles. In 2001, the city and DOJ agreed to drop the residency requirement from the consent decree. The challenger, David Alexander, is now employed by the LAFD.
DOJ joined in the city's request to end court oversight of the process. Judge Hupp declined to rule on whether the 1974 consent decree was constitutional in light of subsequent Supreme Court rulings.
New York City is not the only town in the Empire State facing budget concerns. Buffalo city officials have been wrestling with a revenue shortfall that will likely result in the furlough this summer of about 100 police officers. But not so fast say police officials. Why doesn’t the city just lay-off fire fighters instead?
In an unprecedented battle between the two public safety agencies, police officials are circulating data suggesting that their department is relatively lean for a mid-sized city while the fire department is overstaffed. Police officials surveyed seven cities comparable in size to Buffalo. The Buffalo Police Department employed 4.02 employees per thousand population, below the 4.32 average of the comparable cities. However, the fire department employed 2.99 employees per thousand population, higher than the 2.41 in the sample cities. Thus, according to police officials, the police department manpower is seven percent below the mean while the fire department is 24 percent above. On a typical evening 136 firefighters are on duty while about 85 police officers are in service.
Buffalo Fire Commissioner Calvin Worthy has refused to be drawn into the debate. “I have enough problems taking care of my own department, let alone looking at another department,” he said. Worthy noted that the department is mandated by contract to staff four fire fighters on each truck.
Union officials were more vocal, however. “I find it interesting that the police are putting the emphasis on the fire department and its numbers, when they don’t know anything about our inner workings and how we fight fires,” said Anthony Page, a fire captain and vice president of Local 282 of the International Association of Fire Fighters, AFL-CIO.
The Buffalo Fire Department is authorized 900 positions. Under current
budget plans about 60 unfilled slots will be eliminated and 16 fire fighters
laid-off. The police department funds 973 positions. About 50
vacant police positions will be dropped along with the 102 projected furloughs.
“We might become the only city in the nation that would have more fire fighters
than police officers,” observed Police Commissioner Rocco Diina.
Seeking review from the Supreme Court is Watts v. City of Norman, Oklahoma, No. 01-1299. Lower federal courts found that a black fire captain who retired rather than accept demotion to fire fighter was not the subject of unlawful racial discrimination. The demotion order followed the captain striking a subordinate fire fighter. The subordinate, who is white, was not disciplined. Lower courts found that captain, due to his supervisory position, could be held to a different behavior standard than the fire fighter. Thus, different treatment of two employees was not based on race. The former captain is arguing that the lower courts used the wrong legal standard in considering his claim. No review determination has been made yet.
The City of Indianapolis staffs the fire department on two different schedules.
Suppression fire fighters work 24 hour shifts followed by 48 hours off, with
an additional day off every three weeks. Non-suppression personnel
work eight hour shifts, five days a week. Both groups include fire
fighters who are members of the military reserve or National Guard.
The obligation of these individuals to the military consists generally of
one two-week period during the year and one weekend day per month.
Indiana statute provides that public employees are to be granted leaves of
absence without loss of pay for military service up to 15 days per year.
In addition, an Indianapolis municipal ordinance grants “in accordance with
state law a maximum of 15 eight-hour working days of paid military leave.”
The fire department general order regarding military leave states that personnel
who are members of the armed forces are entitled to leaves of absence with
pay for periods not to exceed 120 duty hours in one calendar year.
Leaves of absence in excess of 120 hours shall be without pay. One
hundred twenty hours of leave came from converting 15 eight-hour days into
hours. In implementing this general order the fire department docked
suppression fire fighters for 24 hours of leave for each scheduled tour of
duty missed while non-suppression fire fighters were docked only eight-hours
per day for each day missed. Consequently, suppression fire fighters
used up their allotted 120 hours during the two-week drill period, leaving
nothing left over for the monthly weekend obligation. In contrast the
eight-hour per day fire fighters use only 80 hours of paid leave during the
two-week camp and had some time left over to cover their weekend obligation.
Suppression fire fighters brought suit claiming that the policy was discriminatory
and in violation of the Uniform Services Employment and Re-employment Rights
Act (USERRA). Trial judge found that the city policy did not violate
the federal statute and fire fighters appeal.
HELD: USERRA prohibits discrimination based on an employee’s membership
in the armed services. The law does not expressly require paid military
leave. An employer violates the law by denying a benefit of employment
because of the employee’s service in the military. The Indianapolis
approach to transforming the requirement of a number of days of paid leave
into certain hours is a common one among fire service nationwide. In
this case, however, the city’s action does not violate the anti-discrimination
aspect of the USERRA. The State of Indiana has granted a benefit to
members of the reserve in the form of paid leave. It is a benefit that
other employees do not receive. The suppression fire fighters claim
that the benefit treats them differently than non-suppression fire fighters.
However, suppression fire fighters receive as much leave as everyone else,
under 120 hours. Any disparity in this case does not arise because
of military service. The benefit arises from military service and is,
in fact, equally distributed. The fact that the benefit does not cover
all duty time for suppression fire fighters is not the result of the military
service. If the suppression personnel received 360 hours of paid leave
as they would like, everyone else would receive 120 hours, thereby creating
a disparate impact opposite from that alleged by suppression personnel.
The city’s method of providing military leave to its fire service personnel
does not violate federal law. Affirmed for city. [Miller v. City
of Indianapolis, Indiana, 281 F.3d 648 (7th Cir. 2002)]
Bianchi was a veteran fire fighter who after 17 years of service was promoted to lieutenant. Eventually, he was assigned as a supervisor at a ladder company. Approximately six weeks after assuming command of the company, Bianchi began to institute changes in the discipline and the training at the firehouse, some of which apparently was not well received by the members of the company. Shortly thereafter Bianchi became the object of harassment at the fire station. He discovered several used condoms placed in his desk drawer along with explicit homosexual playing cards. Other materials were placed in his desk including advertisements for homosexual magazines. He also found envelopes with a return address from a gay fire fighters’ association. The harassers also allegedly placed urine and feces on the sleeve of Bianchi’s turnout gear. Though reticent to do so, Bianchi ultimately brought the matter to the attention of his superiors. Initially no official action was taken. Ultimately, Bianchi informed the battalion chief that the matter was not being handled to his satisfaction and he intended to air his complaints to outside sources such as the civil service commission. At that time Bianchi was transferred from the firehouse to an administrative position. Eventually a meeting was held with the battalion chief. At that meeting the city notified Bianchi he was being removed from fire fighting line duties and would be subject to a physical and mental exam before he could return to work. Sometime after the meeting Bianchi received a threatening letter at his home. The letter was smeared with feces. The letter was turned over to the department, which launched an investigation with the assistance of the police department. Ultimately, a report sustained Bianchi’s accusations of harassment finding that the firehouse constituted a hostile work environment for him. The following month Bianchi took a medical leave of absence. Bianchi did not return to work. Upon expiration of his sick leave the fire department sent Bianchi a letter advising him that his leave was running out. He was also advised that unless he requested a leave of absence without pay he would be separated from the department. Bianchi took no further action and his department considered that he had abandoned his position. Subsequently, Bianchi filed suit against the city claiming sexual harassment and violation of his First Amendment right of free speech. The city moves for summary judgment.
HELD: Federal law makes it an unlawful employment practice to discriminate
against an individual because of sex. To prevail on a hostile work
environment claim a plaintiff must demonstrate: 1) he suffered discrimination
because of sex; 2) the discrimination was pervasive and regular; 3) some
negative impact resulted from the discrimination; 4) the conduct would affect
a reasonable person in a similar position; and 5) the employer has responsibility
in the case. The Supreme Court has ruled that same sex sexual harassment
is covered by statute. However, Bianchi can prevail on his claim only
if he can demonstrate that he was discriminated against because of his sex.
The city claims he has failed to do so. The plaintiff may prove same
sex sexual harassment by: 1) demonstrating a scenario in which harassment
was motivated by the aggressor’s sexual desire; 2) showing that the harasser
displayed hostility toward the participation of a particular sex in the work
place; or 3) illustrating that the harasser’s conduct was motivated by the
belief that the victim did not conform to the stereotype of his or her gender.
None of these three situations fit Bianchi. While the action taken
against Bianchi undoubtedly constituted harassment, simply because harassers
use materials of a sexual nature does not mean that the harassment violates
federal law. Only if one of the three previously mentioned circumstances
is proven is a case of same sex harassment established. The fire fighter
also asserts a First Amendment claim alleging that his free speech rights
were violated. The First Amendment does not protect all speech.
When the government acts as an employer, it may constitutionally limit some
speech in the workplace. The first test of whether speech is protected
concerns whether the speech touches upon a matter of public concern.
If the answer is affirmative, then a balancing test between the interest
of the employer in maintaining a harmonious workplace and the interest of
the employee in speaking out is utilized. Here, the city contends that
the concerns of Bianchi did not rise to the level of public concern.
However, when members of the fire department are spending their time placing
condoms in a co-worker’s desk, addressing fictitious letters, and threatening
their co-worker either because they believe he is gay or unhappy with his
leadership style, it is a matter of public concern. Not only was Bianchi
speaking out against his own treatment, he exposed conduct that might cause
a public outcry about the fitness of this important public institution.
Bianchi is entitled to voice his concerns about the practices of the fire
department and in doing so engage in protected First Amendment activity.
When examined under the balancing test, clearly the employee’s interest in
speaking out prevails. The department offered no example of how his
speech disrupted the functioning of the fire service. While the department
spent time and resources investigating the claim, it makes no assertion that
efficiency gains took precedence over Bianchi’s free speech rights.
Summary judgment for city on sexual harassment claim. Case to proceed
to trial on other issues. (In a subsequent jury trial, Bianchi was
awarded $1.2 million.) [Bianchi V. City of Philadelphia, Pennsylvania, 183
F. Supp.2d 726 (E.D. Pa. 2002)]
On April 13, 1999, only 42 of the 161 employees of the New Orleans Fire Department who were scheduled to report to work actually reported. The remaining personnel, approximately 74 percent of the scheduled workforce, called in sick. Upon returning to work, some of the fire fighters submitted leave slips while others did not. Some of the leave slips contained the signature of a physician while others did not. Nonetheless, the fire superintendent reviewed the leave slips and denied the request for sick leave and placed the individuals on leave without pay status for that day. Only the employees who had been sick on the day before their tour of duty were granted sick leave. When fire fighters discovered that they had been placed on leave without pay and docked for the one day of work, many filed notice of appeal with the civil service commission. The commission held a hearing and listened to testimony by more than 100 fire fighters regarding the natures of their illness on the day in question. The commission also heard that a large number of the fire fighters were members of the fire fighters’ union which was in a dispute with the city administration. The fire fighters’ union had also picketed a fire chiefs’ conference a few days before the sick-out. A statistician prepared an analysis concerning the probability that 119 out of 161 employees would be sick on the same day. He observed that on average 97 percent of the workforce reported daily to the fire department but on April 13 only 26 percent reported. Ultimately, the civil service commission ruled that as to most of the fire fighters the city had taken appropriate action by converting their sick leave to leave without pay. Fire fighters appeal.
HELD: The fire fighters argue that the commission erred in upholding the docking of 86 employees because the city failed to prove that each employee had improperly faked illness. The fire fighters argue that reducing the employees’ pay was a disciplinary action, meaning the civil service board and the city was required to show individually that each employee committed an act detrimental to the service. Certain civil service rules grant employees the right to appeal disciplinary actions including “reductions in pay.” However, the action in this case was not a disciplinary action but rather an administrative action. There is no evidence that the action was noted in the individual fire fighters personnel file or that the action was used in any type of negative way other than to dock the salary. Because of the large number of absent fire fighters, the fire superintendent had good reason to suspect the fire fighters were participating in an illegal sick-out. While it is true that the city failed to submit any direct evidence to show that any individual fire fighter was faking illness, the circumstantial evidence was more than sufficient to establish that a fire fighter’s use of sick leave was nothing more than a thinly disguised scheme to engage in an unlawful sick-out. The fact that $28,000 in overtime pay was necessary to cover staffing shortages tended to show how the sick-out impaired the efficiency of the fire department. In fact, prior case law holds that misuse of sick leave by its very nature impairs the efficient operation of the public service. Since the action of the fire superintendent was not a “reduction in pay” within the meaning of the civil service statute, the civil service requirement of sending each employee notice of the actions was not violated. Affirmed for city. [Airhart v. New Orleans Fire Department, 807 So.2d 1043 (La. Ct. App. 2002)]
A union filed a petition to certify a bargaining unit of town employees in eleven job classifications. Within the group were 27 part-time fire fighters. The town objected to the inclusion of the part-time fire fighters within the bargaining unit claiming they were not “public employees” within the meaning of New Hampshire law. Ultimately, a hearing officer disagreed with the town’s objections and certified the bargaining unit. Town appeals.
HELD: Under New Hampshire law a “public employee” is defined as
“any person employed by a public employer except persons in a probationary
or temporary status, or employed seasonally, irregularly or on call.”
The city argues that part-time fire fighters are on-call employees.
State law does not define who is “on call.” Here, the hearing officer
determined that the part-time fire fighters were not on-call employees because
each fire fighter generally worked several hours per week responding to calls,
training, and covering for the fulltime fire fighters. It was also
noted that both fulltime and part-time employees are necessary to the day-to-day
functioning of the fire department. The city counters that fire fighters
are like part-time police officers. Prior case law holds that although
part-time police officers share much in common with fulltime officers, they
are actually on-call employees who work on an irregular basis. The
union in this case claims the part-time fire fighters are different than
part-time police officers because the fire fighters are required to attend
regular training sessions and respond to calls if they are available.
However, nothing in the statute suggests that the term “on call” turns on
whether an employee is required to respond to a call. Simply because
there is an expectation that fire fighters respond to calls with greater
regularity than part-time police officers does not change the outcome.
The labor board erred in concluding that the part-time fire fighters were
not on-call employees. Reversed for town excluding part-time fire fighters
from the bargaining unit. Bargaining unit not certified as total number
of members dropped below statutory minimum. [Appeal of Town of Litchfield,
790 A.2d 135 (N.H. 2002)]
Mottram was a veteran member of the fire service. During the first
ten years of his employment he worked as a paramedic and ultimately became
a supervisor. During that time he responded to approximately ten emergencies
per day ranging from individuals who were injured in minor events all the
way to airline crashes, decapitations, shootings and house fires. In
the early 1990s, Mottram was assigned to various administrative positions
that did not require him to respond to emergencies but every two months he
worked a 24-hour shift in order to maintain his certification as a paramedic.
On one of those shifts he responded to a fire at a residence that resulted
in multiple burn injuries to several persons and one fatality. The
fire was especially disturbing to him because it reminded him of a horrible
fire to which he had responded many years earlier in which six members of
a family had perished. Coincidentally, a week before the fire Mottram
had contacted a psychologist regarding concerns that he might be predisposed
to suffering a disabling injury. He had been suffering from anxiety
and excessive sleeping. During his appointment with a psychologist
three days after the structural fire it was noted that his condition had
moved to serious depression. The psychologist continued to see Mottram
and ultimately concluded that he was suffering from serious post-traumatic
stress disorder (PTSD). The psychologist considered the
major fire as the critical incident in causing the PTSD. A psychiatrist
examined Mottram and came to the same conclusion. Mottram filed a worker’s
compensation claim asserting that the PTSD was an occupational disease arising
out of and in the course of his employment. The worker’s compensation
commission concluded that PTSD was not a disease within the meaning of Virginia
worker’s compensation law. However, an intermediate court on appeal
recognized PTSD as a compensable injury under the law. Employer appeals
claiming that PTSD is not an occupational disease compensable under Virginia
worker’s compensation law.
HELD: The employer does not dispute that Mottram suffers from PTSD,
only that PTSD is not a compensable disease under state law. The employer
argues that the PTSD resulted from exposure to multiple shocking and frightening
events and is thereby a repetitive trauma injury rather than a disease.
Repetitive trauma injuries are not compensable. Prior case law, however,
rejects this approach to the statute. Credible evidence establishes
that Mottram’s repeated exposure to the traumatic stressors caused reactions
to his neurobiological system. These neurobiological responses, although
initially beneficial, may have had long-term negative consequences when related
to chronic symptoms of PTSD. Thus, the condition must be considered
a “disease” within the meaning of state law. To recover benefits, however,
Mottram must show that either PTSD is an occupational disease or is an ordinary
disease of life that should be treated as an occupational disease.
An occupational disease is one arising out of and in the course of employment
but not an ordinary disease of life to which the general public is exposed
outside of employment. There is no evidence that Mottram was exposed
to traumatic events outside of his employment. In fact, medical evidence
emphasized that PTSD was intimately related to his service connected activities.
Based on the record, Mottram’s PTSD was an occupational disease for the purposes
of worker’s compensation law. Remanded for further proceedings in calculating
of benefits. [Fairfax County Fire and Rescue Department v. Mottram,
559 S.E.2d 698 (Va. 2002)]
he employee, providing employees are aware of the policy. The record in
this case does not indicate whether or not the former employees were aware
of the city's unwritten policy of never paying for sick leave. The case
is remanded for further proceedings to assess the extent of the employees'
knowledge of city policy. [Howell v. City of Princeton, 559 S.E.2d 424
(W. Va. 2001)]
The West Virginia Wage Payment and Collections Act states that whenever
an employee resigns the employer shall pay the employee’s wages no later
than the next regular payday. The law defines “wages” to “include then
accrued fringe benefits capable of calculation and payable directly to an
employee.” Further the term “fringe benefits” is defined to include
“regular vacation, graduated vacation, floating vacation, holidays, sick
leave, personal leave, production incentive bonuses, sickness and accident
benefits, and benefits related to medical and pension coverage.” A
group of fire fighters and police officers who had left the city’s employment
filed suit claiming that the city owed monetary payments for the employees’
accumulated sick pay. Trial court granted summary judgment for the
city and officers appeal.
HELD: The former public safety officers allege that the city violated
state law by failing to pay them wages in the form of their accumulated fringe
benefits after they left the city’s employment. A quick reading of
the statute would initially lead to the conclusion that an employer is obligated
in all instances to pay for unused fringe benefits. This view is not
legally correct, however. Prior case law holds that the statute does
not make payment for fringe benefits mandatory and that the terms and conditions
of fringe benefits are controlled by the agreement between the employer and
the employee. Terms of employment concerning the payment of unused
fringe benefits must be express and specific so that employees understand
the amount of unused fringe benefit pay, if any, owed to them upon separation
of employment. Prior case law also holds that an unwritten policy that
is longstanding is sufficient to constitute the express understanding between
the employer and the employee, providing employees are aware of the policy.
The record in this case does not indicate whether or not the former employees
were aware of the city’s unwritten policy of never paying for sick leave.
The case is remanded for further proceedings to assess the extent of the
employees’ knowledge of city policy. [Howell v. City of Princeton,
559 S.E.2d 424 (W. Va. 2001)]
The threat of placing a pay referendum before city voters apparently was sufficient impetus for the City of Corpus Christi to ink a new contract with its fire fighters. Members of the Corpus Christi Fire Fighters Association, Local 936 of the International Association of Fire Fighters, AFL-CIO, collected sufficient signatures to place before voters a proposed 8.5 percent wage hike. The petition was cancelled when the city agreed to a retroactive pay deal. Fire service personnel will receive a three percent wage hike retroactive to August 1. Another two percent is awarded this month with as much as three percent coming in November, depending on rank. Included in the contract is a “me too” clause whereby fire fighters will gain any additional benefits that might be negotiated by the police union during its bargaining.
A two year contractual impasse ended when Los Alamos County officials and members of Local 3279 of the International Association of Fire Fighters, AFL-CIO, reached accord on a new labor pact. Most of the department will receive an immediate 7.5 percent wage hike. Drivers and engineers will receive a 10 percent pay boost. Fire fighters will also be eligible for the countywide raises due to be decided in June. This wage hike likely will not exceed three percent. The current boosts come on top of interim raises approved last year in an effort to provide fire fighters some relief during negotiations. The agreement was reached after county officials gained approval from the Los Alamos National Laboratory, which pays the cost of the county fire department.