Collective bargaining, the goal of most public safety unions and the nightmare of many governmental administrators, continues to be an active issue nationwide. In recent weeks, political momentum for a national bargaining bill has continued to build while Missouri may be looking at a statewide vote on the matter. Meanwhile, a California court has struck down the cornerstone of its state law, binding arbitration.
The International Association of Fire Fighters (IAFF), AFL-CIO, announced recently that Senator Jim Inhofe, an Oklahoma Republican, has become the 23rd Senate co-sponsor of the bill and the 59th vote toward the 60 needed to end procedural blocking maneuvers. Senate Majority Leader Tom Daschle (D-S.D.) has pledged to bring the Public Safety Employer-Employee Cooperation Act (S.952) to the Senate floor if the IAFF is able to secure the 60 votes needed for cloture, the procedural term for closing debate and ending any filibusters. Last year, the IAFF bill was blocked from a floor vote despite having a 56-vote majority support. Shutting off the Republican-engineered filibuster would virtually assure passage of the act in the Senate. A companion bill, H.R. 1474, has 221 co-sponsors in the House of Representatives, three more than a majority. If the proposal becomes law, states will be compelled to allow fire fighters and other public safety officers to negotiate with their employers over wages, hours and working conditions. At least 18 states, mostly in the South, do not permit bargaining by public safety employees.
Missouri fire fighters are not waiting on Congress, however. The Missouri
State Council of Fire Fighters has gathered sufficient signatures on a
petition to force a vote to amend the state's constitution to allow collective
bargaining. The fire fighters' union delivered petitions with 200,000
signatures to the secretary of state's office in early May. Proponents
claim that the signatures far exceed the 125,000 necessary to land the initiative
a spot on the ballot. The collective bargaining proposal amendment would
grant paid fire fighters, fire dispatchers, and ambulance personnel the
right to bargain over wages, hours, and working conditions. Binding arbitration
would occur in case of impasse. Strikes would be prohibited. The Missouri
legislature passed a fire fighter bargaining bill in 1990 but then-Governor
John Ashcroft vetoed the measure due to concerns about its constitutionality.
Meanwhile, a California appeals court last month voided the state's binding arbitration law for county public safety personnel, ruling that the act violates home-rule provisions of the state constitution. The law was enacted in 2001 after years of lobbying by fire fighter and police officer unions. The Court of Appeal in Riverside ruled that granting a panel of arbitrators the ability to set wages based on the last/best offer of the parties interfered with local governmental authority over finances and employee compensation. The California Constitution provides that the legislature may not delegate to private parties the power to appropriate funds. Also, the law conflicts with a 1933 amendment specifically granting the county board of supervisors "complete authority" over employees' compensation.
Judge Betty A. Richli, writing for the three-member panel, noted that while public sector labor relations may be a matter of statewide concern appropriate for state legislative control, the state constitution is clear as to the setting of salaries. Likewise, the court found it a bit ironic that the legislature asserted that the public welfare is endangered unless public safety personnel cannot compel interest arbitration yet the legislature has failed to grant the same arbitration right to state-employed fire fighters and police officers.
The decision in County of Riverside v. Superior Court of Riverside County
sets aside an arbitration order on behalf of the Riverside Sheriff's Association.
The decision to appeal is pending.
Think working as a fire fighter is a stressful job? Try serving as President of the United States. That is the only occupation more stressful than the fire service! At least according to the newest edition of Jobs Rated Almanac. Fire fighter ranks 249 out of 250 on the stress scale, exceeded only by the country's leader. Only slightly less stressful are senior corporate executive, racecar driver, and taxi driver. The least stressful job? Musical instrument repairer.
Fire fighters and the President also share the bottom of another of the
book's six categories — worst working environment. Other categories
rated by the author, Les Krantz, are income, physical demands, potential
growth, and job security. When all six factors are grouped together, the
best overall job is biologist while the worst overall is lumberjack. No
public safety position finished in the top ten or bottom ten overall. However,
fire fighter ranks in the bottom 20 percent of jobs.
Best paying job? NBA basketball players who average $4,637,825 annually.
Krantz began the job rating research in 1988 using government statistics and surveys of professional organizations. The book is published by Barricade Books and sells for $14.95.
The corporate annual report for communications giant Motorola, Inc., released in April uses photographs of New York Fire Department (FDNY) personnel despite complaints by some that the company's equipment failed to perform adequately at the World Trade Center (WTC) disaster. Fire fighter Hisham Tawfiq of Engine 69 in Harlem appears on the cover with a Motorola radio attached to his turnout gear. He and a recently retired fire fighter are also pictured inside the report.
"It's an absolute disgrace for Motorola to use New York City fire fighters to advertise their company," Steve Cassidy, a union delegate for Engine 236 in Brooklyn, told the New York Daily News. "Motorola should not be bragging that New York City fire fighters are using their product when it proved completely inadequate." The FDNY recalled 2,700 Motorola digital radios in March 2001 after receiving union complaints that the units had not been properly tested. Old Motorola units were re-issued and were in use at the WTC. Several fire fighters reported radio problems on September 11.
A Motorola spokesperson said the photos were in the report to honor the
fire fighters who died at WTC. Jennifer Weyrauch said the annual report
was not an ad and is distributed only to stockholders. "I'm shocked that
someone would be upset by this," said Weyrauch. "The annual report is not
an ad for Motorola -- it's a document, an important document,
that is only disseminated to stockholders. It is not an advertising piece."
The text with the photograph of the two fire fighters reads, "What's relevant to society? A new reality. Safety. Security. The ability to protect. The ability to respond. In these times, the role of sophisticated, flexible and reliable communications has never been more important. Motorola is the undisputed leader and a committed partner dedicated to delivering it." The text also includes the phrase "not an ad."
Peter Gorman, president of the Uniformed Fire Officers Association, said he was concerned about the image of FDNY fire fighters in full bunker gear in the report. "I am deeply offended they would use my fire fighters, because the product that they delivered meant that our guys had inferior radios on 9-11," Gorman said.
The city granted permission for Motorola to use the photographs and the fire fighters depicted received no compensation.
Slanina worked as the city fire marshal. His immediate supervisor
was the fire chief. Both answered to the director of public safety
who was in charge of both the police and fire departments. Prior to
1999, Slanina’s desk was located in city hall where he had a city-provided
computer with Internet access but no connection to the city’s intra-office
network. When a new fire station was built, Slanina’s office was moved
to that station. He brought with him his old computer but the new fire
station had no Internet or network connection. One day while Slanina
was off on sick leave recovering from tooth surgery, the city’s management
information system coordinator began working to install the city network
on the fire station’s computers. He entered Slanina’s office with a
master key and attempted to continue his work. He discovered, however,
that Slanina had installed a password on the computer and, without the password,
he was unable to immediately access the hard drive and install the network
software. The computer technician contacted the fire chief about the
problem and the fire chief subsequently telephoned Slanina to obtain the
password. Slanina initially balked but was assured that the password
was necessary because the computer technician was already working overtime.
Slanina provided the password to the fire chief who then gave it to the computer
technician. Fifteen minutes later, however, Slanina himself showed
up at the office. This aroused the suspicion of the computer technician.
The computer technician told Slanina that it was going to take several hours
to finish the job. He purposely overstated the time to give himself
a chance to see if something was amiss. When Slanina finally left the
office, the technician saw the e-mail was running and discovered a newsgroup
of pornographic material. The technician conducted a search of the
hard drive and found both adult and child pornography on Slanina’s computer.
The fire chief was told of the discovery. The next day, the fire chief
contacted the director of public safety who ordered him to remove the computer
from the fire station and take it to the police station. That weekend
the director of public safety, along with the computer technician and the
fire chief, examined the computer and found explicit child pornography.
They discussed the matter and addressed the possibility of criminal violations
as well as misuse of city property. The next day Slanina was interviewed
by a police department internal affairs officer and provided a written statement.
He admitted to accessing the newsgroups and downloading the pictures of the
child pornography. He also consented to the police searching his computer
at home. The search at home resulted in the seizure of another computer
initially thought to belong to the fire marshal but later determined to be
city property. Other disks were also seized. Both the office
and home computers and disks were turned over to the FBI which spent time
examining them. Ultimately, the FBI found more than 100 files of child
pornography. Slanina was indicted and convicted of two counts of possession
of child pornography in violation of federal law. Trial court refused
to suppress the evidence seized in the searches of the computers. The
fire marshal was subsequently terminated from his position. He appealed
the criminal conviction.
HELD: Slanina argues that the warrantless searches of his office computer
violated his Fourth Amendment right against unreasonable search and seizure.
The threshold question on this Fourth Amendment case is whether Slanina had
a constitutionally protected reasonable expectation of privacy. If
he did, the government would normally have to use a warrant to intrude upon
that expectation. In the present case, the ex-fire marshal clearly
demonstrated a subjective expectation of privacy with respect to his office
and his computer. He locked the office door and limited the access
to computer files by password. He did not forfeit that expectation
by providing the password to the computer technician as he gave the password
for the limited purpose of installing the network not perusing his files.
This expectation is further heightened by the fact that the city had no policy
that prevented storage of personal information on its computers and did not
inform its employees that computer usage and Internet access would be monitored.
Thus, his expectation of privacy was reasonable. However, prior case
law holds that public employers’ intrusions on the constitutionally protected
privacy interests of government employees for non-investigative work-related
purposes, as well as for investigations of work-related misconduct, are permissible
providing they are reasonable. This case was complicated by the fact
that part of the search was conducted by the public safety director who is
a peace officer. However, other courts have ruled that the goal of
ensuring an efficient workplace should not be frustrated simply because the
same misconduct that violates a government employer’s policy also happens
to be illegal. From the inception of the search, it had already been
discovered that the newsgroups suggested the presence of child pornography.
Images of adult pornography had been found. The computer had been provided
to Slanina by the city and any use to access pornography was a violation
of city policy. Consequently, his supervisor, the public safety director,
was entitled to determine the extent of Slanina’s violations. The warrantless
search of his office computer was reasonable. The fact that the FBI
subsequently conducted a more exhaustive search of the equipment does not
alter the admissibility of the evidence. While the FBI agents’ search
does not fall under the workplace exception, their search was largely redundant
of the initial quest. Once the public safety director looked at the
computer Slanina’s expectation of privacy had already eroded. He cannot
then complain about the FBI search of the same material. Likewise,
his consent to search his home computer was valid and voluntary. Conviction
affirmed. [United States v. Slanina, 283 F.3d 670 (8th Cir. 2002)]
Naucke was employed as a fire chief and his brother-in-law, John, was
a part-time fire fighter with the department. Naucke’s wife, Theresa,
was president of the fire department ladies auxiliary. In 1998, the
city administrator proposed various changes within the department, including
changes to emergency medical service regulations that precluded certain fire
fighters from responding to medical calls. In response to the proposed
changes, Theresa approached the city administrator and expressed her dissatisfaction.
Some time thereafter, the administrator stopped Naucke and John on the street
and told them they were in jeopardy of losing their jobs if they did not
censure Theresa. Later, Theresa had her name put on the agenda for
an upcoming city council meeting to speak out against the proposed changes.
Before her scheduled appearance, however, Naucke was removed from his position
as fire chief. At approximately the same time the ladies auxiliary
was ordered to disband. Several months later Naucke was removed from
the department entirely. Nonetheless, Theresa attended the city council
meeting along with John. John addressed the city council regarding
what he believed was the illegal employment of a minor on the fire department.
He subsequently was fired from his part-time position with the department.
After the loss of her husband’s and brother’s jobs, Theresa continued to
voice her dissatisfaction to the council on various issues. She criticized
the city administrator as well. Subsequently, Theresa filed suit against
the city and the city administrator claiming that in response to her exercise
of free speech, she had been subjected to ridicule and humiliation by the
administrator and individual council members. Additionally, Naucke
and John brought suit alleging that the city administrator and the city council
retaliated against them because of Theresa and John’s public speech.
Trial court jury awarded monetary damages to Nauck and John, finding that
they had indeed been removed from the fire department as a result of their
own and Theresa’s First Amendment protected speech. Theresa’s personal
claim, however, was rejected by the trial court. Theresa and city administrator
appeal.
HELD: Criticism of public officials lies at the very core of speech
protected by the First Amendment. Retaliation by a government actor
in response to such exercise of First Amendment rights forms a basis for
civil liability. To establish a claim for retaliation, an individual
must show that he was engaged in constitutionally protected activity, that
the government official’s adverse action caused him to suffer an injury which
would chill a person of ordinary firmness from continuing in that activity,
and that the adverse action was motivated in part by the exercise of the
constitutional right. Theresa’s criticism of the city council and city
administrator is the type of speech intended to be protected by the First
Amendment. However, it would trivialize the First Amendment to hold
that any harassment for exercising the right of free speech was always actionable
no matter how unlikely to deter a person of ordinary firmness from that exercise.
The harassing comments Theresa attributes to the city administrator and members
of the city council were offensive, unprofessional, and inappropriate.
However, they were insufficient to deter a person of ordinary firmness from
continuing to speak out. Thus, her First Amendment right was not violated.
However, the evidence clearly establishes that Charles and John were terminated
because Theresa continued to speak out. A jury could reasonably conclude
that the city administrator improperly influenced the city council’s decision-making
process and was able to make good his threat to have Naucke and John terminated.
He thus is liable for his actions. Trial court affirmed for former
fire fighters. Suit of fire chief’s wife rejected. [Naucke v.
City of Park Hills, Missouri, 284 F.3d 923 (8th Cir. 2002)]
The city and the fire fighters’ union were parties to a collective bargaining
agreement. One provision of the contract set out a substance abuse
testing policy. The policy required collection of at least 60 milliliters
of urine in order that a sample could be divided into two equal parts.
The policy also provided for certain procedures to be followed if an employee
could not pass that amount of urine. If an employee tested positive,
he was referred to a chemical dependency program. Successful completion
of the dependency program would permit the employee to be reinstated.
Unsuccessful experience with the program would result in termination.
If an employee was unhappy with any provision of the drug policy, his unhappiness
was subject to the standard grievance procedure in the contract. In
1997, Ware, a fire fighter, was directed to a health center to provide a
urine sample for testing under the drug policy. Despite the policy
requirement concerning the amount of urine to be collected, less than 60
milliliters was collected from Ware. The sample subsequently tested
positive for the presence of marijuana. Ware was informed of the positive
test and ordered to report to the deputy fire commissioner. Later that
day, he met with the deputy fire commissioner in the presence of a union
representative. Ware denied ever using drugs and argued the test was
a mistake. He also informed the parties that the urine sample was too
small to divide into two parts. Despite the small sample size, Ware
was told that he would be treated as having tested positive for an illegal
substance. He was placed on suspension and told to use his sick time
and vacation time while on suspension. He was also directed to enter
and successfully complete a chemical dependency program. A few days
later, Ware on his own initiative had a urine test and a blood test.
Both samples were negative for illegal substances. Ware provided these
results to the deputy fire commissioner, but he refused to excuse Ware from
attending the dependency program. The dependency program required three
weekly group counseling sessions, bi-weekly individual sessions, urine testing,
and joint counseling with the attendee’s spouse. Ware missed one session
because his wife’s car was stolen and he had no transportation. He
missed another session because of obligations as a member of the National
Guard. These absences were initially treated as unexcused. Ware
was required to sign waivers authorizing the fire department to obtain his
records regarding his treatment at the counseling center. He was also
told by center personnel that he had to admit his addiction in order to successfully
complete the program. Ware, however, contended that he had never used
drugs. He also questioned why he had to undergo alcohol and marital
counseling. The center, however, insisted he follow all of their rules
or he would be reported to the fire department. Ultimately, Ware sued
the fire department claiming that he suffered acute emotional distress and
damage to his reputation, that he had to forego opportunities to see and
care for his daughter, and that he was denied the opportunity to reenlist
for another tour with the National Guard because of its zero tolerance drug
policy. Because of his experience, he also was denied security jobs
that he had worked part-time previously. The city moved to dismiss
the complaint.
HELD: In order to gain relief, Ware must allege that the city deprived
him of a right secured by the Constitution or laws of the United States and
that such deprivation was committed by persons acting under color of state
law. He claims a deprivation of due process of law in that the drug
policy was arbitrarily and capriciously applied to him. To pursue his
claim, however, Ware must show an invasion or deprivation of a recognized
life, liberty or property interest. Property interests are created
by state law. The Supreme Court has held that public employees who
can be discharged only for cause have a constitutionally protected interest
in their tenure and cannot be fired without due process. However, deprivations
less than termination are subject to less due process. The property
interest Ware has in his job as a fire fighter does not implicate any constitutional
right to work additionally as a security guard. Likewise, his right
to see his daughter is not constitutionally protected. Here, his primary
employment as a fire fighter continued and was not deprived from him.
The Supreme Court has not directly addressed whether a suspension without
pay amounts to a requisite loss of a tangible property interest for due process
purposes. The results on this question by lower federal courts have
been mixed, finding both suspensions with pay and suspensions without pay
as not implicating constitutionally protected property interests. Much
of Ware’s complaints, such as his loss of vacation time are covered under
specific provisions of the collective bargaining agreement. His procedural
due process rights are generally satisfied by appropriate notice and an opportunity
to be heard. Following the positive drug test, Ware had an opportunity
to be heard. He met with the deputy fire commissioner and told his
side of the story, denying ever having used drugs. A union representative
was present. Although this was not a full-fledged hearing, it met the
level of procedural due process guaranteed for this purpose. Further,
Ware cannot challenge the provisions of the drug policy. The union
acted as his bargaining agent and waived certain of his rights. Consequently,
as a member of the union, he has no standing to challenge the policy agreed
to by union representatives. Ware should raise any dissatisfaction
with the contract with his union, not with the city. Because the fire
fighter was afforded all of the process necessary and the provisions of the
labor contract were followed, he has no constitutional claim against the
city. [Ware v. City of Buffalo, New York, 186 F. Supp.2d 324 (W.D.N.Y.
2001)]
Schuyler was a fire fighter who sustained a work-related injury to his
back. One day, while off from work, he drove to a physical therapy
session to treat his back injury and then he drove to the fire department
to pick up his pay check. While at the department, he had a cup of
coffee and used the bathroom. He drove to the bank to obtain some cash
and then headed home, stopping along the way at a bike shop to pick up bicycles.
After he left the bicycle shop, he was involved in a motor vehicle accident.
Schuyler filed a claim with the worker’s compensation board asserting that
the motor vehicle accident produced work-related injuries. The board
denied the claim and fire fighter appeals.
HELD: In denying the fire fighter’s claim, the worker’s compensation
board recognized that off-duty injuries sustained while traveling to and
from treatment for a compensable injury may be considered consequential to
the compensable injury. Additionally, prior case law holds that off-duty
injuries sustained while picking up a paycheck in a manner required by the
employer may be considered within the scope of employment. These holdings
are exceptions to the general rule that off-duty injuries are not compensable.
While the fire fighter’s off-duty trip may have had work-related aspects,
there was nothing irrational in the worker’s compensation board’s conclusion
that once the work-related aspects of the trip were over, the fire fighter
had embarked on personal errands that had no relation to his work.
There is no causal connection between his employment and the off-duty injuries.
Denial of additional benefits affirmed. [Schuyler v. City of Newburgh
Fire Department, 739 N.Y.S. 2d 217 (N.Y. App. Div. 2002)]
The city suspended two fire fighters without pay for a 24-hour shift for damaging the electrical system at the fire station. The fire fighters’ union brought a grievance on their behalf arguing that the suspensions violated the collective bargaining agreement between the city and the union. Pursuant to the labor contract, the matter was submitted to arbitration. During the arbitration proceeding, the union was represented by legal counsel, but neither fire fighter retained separate counsel. Ultimately, the arbitrator ruled that the city had violated the collective bargaining agreement and ordered the suspensions set aside and back pay awarded. The city complied with this order. Subsequently, the union requested that the city pay its attorneys’ fees. The city refused and the union filed suit seeking the attorneys’ fees allegedly due it under state law. Washington statute provides that reasonable attorney’s fees “shall be assessed” against an employer for “any action in which a person is successful in recovering judgment for wages or salary owed.” Trial court granted city’s motion for summary judgment and union appeals. Intermediate appellate court reversed, concluding that the legislature must have intended that unions recover attorney’s fees on behalf of their members. City appeals.
HELD: The city argues that the court of appeals’ decision conflicts with prior cases that require courts to enforce the plain meaning of unambiguous statutes. The plain meaning rule requires courts to derive the meaning of the statute from the wording of the statute itself. Only if the statute is determined to be ambiguous will a court look to the legislative intent in enacting it. The statute in question, however, is remedial in nature and should be construed liberally to effectuate its purpose. A liberal construction requires that the coverage of the statute be liberally construed in favor of the employee and its exceptions narrowly confined. The city first objects that an arbitration proceeding is not an “action” within the meaning of the statute and that an arbitrator’s ruling is not a “judgment.” Prior case law has characterized arbitration as judicial and as non-judicial. In the context of due process, arbitration must meet the same requirements as a traditional judicial action but the nature of arbitration itself is a substitute for judicial action. Various law dictionaries define an “action” as a judicial proceeding or as a proceeding in a court of law. However, nothing in the plain language of the word “action” prevents a court from interpreting it to include arbitration proceedings. Had this matter been brought in court initially, attorneys’ fees would have been available. Because the statute is remedial in nature there is no reason not to interpret “action” to include arbitration proceedings. The city next asserts that a union is not a “person” within the meaning of the statute. The union was acting in a representative capacity for the two members when it filed the arbitration demand. In fact, under the bargaining agreement, the union was the only party that could file a grievance. The employees could not bring an action on their own behalf. It would be counterintuitive to limit the recovery of attorney’s fees to only those employees who bring an action on their own behalf when they would never be allowed tobring such an action independent of their union. When a union is the exclusive entity under a collective bargaining agreement entitled to bring an employment grievance, the statute should be construed to allow for payment of attorney’s fees to the union because the union is acting as an agent for the employee. The city also asserts that prior case law specifically bars awarding attorney’s fees in arbitration proceedings. These cases, however, are distinguishable because they involve interest arbitration not grievance arbitration. Interest arbitration is used to determine the terms of the contract between the parties while grievance arbitration is used to resolve a labor dispute through the interpretation of an already existing bargaining agreement. In a grievance arbitration, an employee is seeking to vindicate an existing right. The purpose of the statute is served by allowing attorney’s fees in grievance arbitrations where it would not be served by allowing them in interest arbitration. As a settled rule in labor arbitration, each side is responsible for its own attorney’s fees in arbitration proceedings. Such rule is subject to statutory abrogation. Washington legislation made a clear policy decision that attorney’s fees should be awarded to encourage the payment of wages owed. Because of the nature of labor relations, arbitration is the primary method for employees to recover their back wages. Interpreting the statute to include arbitration proceedings would be consistent with this purpose. Washington statute allows the award of attorney’s fees to a labor union that obtains a favorable wage recovery on behalf of its member in a grievance arbitration proceeding. Affirmed for union. [International Association of Fire Fighters, Local 46 v. City of Everett, 42 P. 3d 1265 (Wash. 2002)]
Memphis city officials have reached accord on a two-year labor pact with
Local 1784 of the International Association of Fire Fighters, AFL-CIO.
Fire service personnel will receive wage boosts of four percent each year
beginning July 1. The agreement ends a dispute that initially appeared
headed for resolution before the city council.
An arbitrator has sided with the City of Modesto on three of four contract
issues with the city’s fire fighters. The ruling was the first since
Modesto voters approved binding arbitration in 1998. The arbitrator
awarded the city’s pay offer of two retroactive wage hikes of 4.5 percent
followed by three percent boosts in December 2002 and December 2003.
The union had sought cumulative raises over 16 percent. The four-year
pact is retroactive to January 2001 and ends in 2004. The arbitrator
also sided with the city on overtime and the city’s contribution to healthcare.
But, the arbitrator granted the union demand for a pension equal to 75 percent
pay upon attaining age 50 with 25 years of service. About 135 of the
department’s 147 fire service personnel are covered by the award. Local
1289 of the International Association of Fire Fighters, AFL-CIO, is the bargaining
agent.
The 991 fire fighters represented by Local 145 of the International Association
of Fire Fighters, AFL-CIO, will receive 13 percent pay hikes over three years
under a new memorandum of understanding with the city. Additionally,
the fire fighters will get a 2.7 percent increase in the city’s contribution
to their retirement plan. An improved health care plan will also benefit
all city employees.