Stalled contract talks provoked a job action among Kansas City, Missouri, fire fighters on Memorial Day. Over 100 fire fighters called in sick as a sign of unhappiness about the progress on reaching a new labor accord. The tactic apparently worked as the city and the fire fighters’ union subsequently agreed to extend the current contract for another month and submit their dispute over pay to federal mediation. Because the job action occurred on a holiday, the 109 replacement fire fighters who were called in to work received double time pay, a cost to the city approaching $100,000. A minimum of 194 fire fighters are needed to staff each 24-hour shift. Officials of Local 42 of the International Association of Fire Fighters, AFL-CIO, denied that the sickout was orchestrated by the union. Additionally, union president Louie Wright pointed out that no service was disrupted and no one left a post unrelieved on Memorial Day. City officials characterized the job action as “unfortunate” and noted that state law prohibits fire fighters from striking. “A sickout violates more than state law. It violates that trust you have been building,” said James Baker, an attorney representing the city in the contract negotiations. A federal mediator will now play an advisory, non-binding role in the negotiations. The prime dispute between the parties concerns how much top of scale personnel will receive as a pay raise. The city has offered two percent one-time bonuses while the union has pressed for a 2.5 percent wage hike. About 45 percent of the union’s 770 members are at the top of the pay scale. Top fire fighter pay is currently $52,524. Base starting wage is $29,232. The city has offered raises averaging four percent beginning next May for employees who are not at top of scale.
Of the $2.3 billion raised to aid victims of the September 11 tragedy, only 29 cents of each dollar has been distributed to survivors of those killed, according to a study conducted by the Washington Post newspaper. A survey by the paper found that about 20 cents of each dollar had gone to individuals displaced by the event and another 40 cents has yet to be distributed to anyone.
Many charities report that money continues to flow in despite the termination of public appeals for funds. Surveys indicate that two-thirds of American households donated to September 11th related charities. The enormity of the giving outran the ability of many charities to process the donations. For example, the International Association of Fire Fighters, AFL-CIO, reportedly received more than 260,000 checks, which necessitated obtaining assistance from a bank in processing the donations.
A full accounting of collections and expenditures from the various funds will likely never be made because no state or federal agency holds direct oversight responsibilities. The Internal Revenue Service does require charities to file detailed tax returns but lacks the resources to audit the accuracy of this information. In the near future, Congress may hold hearings to determine if additional legislation is needed to monitor charitable giving.
Washington Post personnel surveyed eleven charities that together had collected about 95 percent of the funds. The newspaper found that families of fire fighters who died had received, on average, $1 million each. Another $1 million will likely be forthcoming by year's end.
About one-third of the cash has gone to support the estimated 55,000 people who lost their jobs or homes or were otherwise injured by the events in September.
The largest charity, the American Red Cross, has about $400 million still to distribute. Most of this is scheduled to be dispersed by the anniversary date of the tragedy. The Red Cross had been criticized last fall for planning to use some of the funds for purposes not related to September 11. The group has since announced that all money received for its Liberty Fund would be distributed for purposes related to the terrorist events.
Disbursing millions of dollars is not necessarily easy, the newspaper found. Many of the dead fire fighters and police officers had been divorced and remarried, sometimes with additional children. However, beneficiary names had not been changed on life insurance policies. These payments have generally been made to the named beneficiaries.
Even the definition of "family" has been broadened by some charities. Dozens of women told Red Cross caseworkers that they were the mistresses of executives who died at the World Trade Center and were financially dependent on the businessmen. The Red Cross reportedly has treated them the same as other victims' family members who have sought aid.
The so-called Fireman's Rule that prohibits public safety workers from recovering damages from a landowner for negligence when injured while performing their duties is not and has never been the law in South Carolina the state's Supreme Court ruled in May. The ruling clears the way for fire fighters and police officers to sue when injured on the job because of a property holder's negligence.
Over two dozen states have adopted the rule in some form. The rule, also known as the Fire Fighter's Rule and the Professional Rescuer's Doctrine, was created in 1892 and generally bars fire fighters and police officers injured in the line of duty from obtaining money damages from individuals whose very negligent behavior is the reason the public safety worker was called to the scene. Most states that have considered the matter in recent years have adopted the rule although several states have abolished or limited by statute the application of the concept. Among the reasons cited for the rule are that public safety workers are aware of the risks inherent in their profession and that public policy is best served by having society as a whole pay for these job-related injuries.
The South Carolina case arose when Jeffrey Minnich, a university public safety officer, was injured when he jumped aboard a runaway truck. At the time, Minnich, as part of his normal duties, was assisting the loading of medical waste into the truck. He subsequently sued the truck's owner in federal court. The federal court requested that the Supreme Court of South Carolina advise it on the status of the Fireman's Rule in that state.
Justice Costa Pleicones, writing for the unanimous five-member tribunal, found the matter to be one considered for the first time in S. Carolina. After reviewing the various policy reasons for the existence of the rule, the justice concluded that nationwide there is no universal reason or consistent application of the concept. In rejecting the rule, the justice opined that the tort law of the state adequately addressed negligence claims brought by fire fighters and police officers. "The more sound public policy _ and the one we adopt _ is to decline to promulgate a rule singling out police officers and fire fighters for discriminatory treatment," he concluded.
In recent weeks, the Supreme Court decided not to review Watts v. City of Norman, Oklahoma, No. 01-1299. This leaves in place a lower court ruling that a black fire captain who retired rather than be demoted after striking a white subordinate was not the victim of racial discrimination. No presumption of discrimination arose simply because the captain was disciplined and the subordinate was not. Lower court found that different disciplinary treatment was appropriate for a supervisor.
HELD: Department policy states that the chain of command is to be adhered to at all times except for an emergency. Fernandez argues that his safety concerns for the fire fighter constituted an emergency situation that needed to be addressed immediately. However, the fire superintendent testified that an emergency is one where there is no time to discuss the matter with a superior officer. He further testified that Fernandez had made no attempt to contact him directly regarding the situation. The memo to the fire fighter was a clear order for him not to participate in the Fire Fighter Challenge. The fire department must also prove, however, that Fernandez’ conduct impaired the efficiency of public service. The fire department, like the police department, is a quasi-military institution where strict discipline is imperative. It is essential that the leadership be allowed to establish and enforce appropriate standards of conduct for its employees. Here Fernandez’ conduct clearly impaired the efficiency of the public service by failing to follow the chain of command. Fernandez should have known what constituted an emergency within the meaning of departmental orders. Transfer of fire supervisor affirmed. [Fernandez v. New Orleans Fire Department, 809 So.2d 1163 (La. Ct. App. 2002)]
City ordinance required that promotions be based on a valid, fair, sound method. City personnel regulations established a merit system using written tests, oral interviews, and performance examinations to determine an employee’s eligibility for promotion. Personnel rules also required that the city would use careful and reasonable measures to ensure fair administration of the exam. In 1993, Collado was one of 51 lieutenants who competed for promotion to captain in the fire department. The promotion process had two components: a written examination and an assessment center a few weeks later. Only the candidates who received a sufficiently high score on the written examination were eligible to proceed to the assessment process. The written test was offered at two different times. Collado attended the first session. During that session, a power failure occurred. The power outage resulted in significant disruption of the testing process. Despite being instructed to stop working on their tests and remain in their seats, not all of the candidates obeyed. One candidate reportedly left the room while others near an open doorway had sufficient light to continue working. Some of the candidates allegedly talked during the blackout. After the light was restored, the candidates were given an extra five minutes to compensate for the disruption. At the end of the examination period, however, one candidate was observed continuing to work on the test for additional minutes. That candidate ultimately ranked number one on the list. The second session of the written examination proceeded without incident. Overall, individuals who participated in the second session performed substantially better than individuals in the morning session. Several candidates complained about the written exam and suggested that the city reject the results of the test. The city refused. During the assessment center, security was lax. Participants were not monitored between exercises and were able to talk to each other and listen from the hallway during the process. Some candidates allegedly had preexisting relationships with one or more of the assessors. One exercise required candidates to describe how they would respond to reports of smoke in a particular building that was familiar to some but not all of the candidates. The same candidate that had scored number one on the written test had previously worked in the building and was familiar with its layout. Collado’s problems were compounded by the fact that due to a scoring error his name was initially wrongfully omitted from the list of eligible candidates for the assessment process. When the mistake was corrected, he had only two days to study. Ultimately, Collado missed the cutoff score of being eligible for promotion by .11 percent. A year later, Collado took another promotion test but did not pass. He took no additional exams, subsequently testifying that he had lost faith in the process. The fire fighters’ union filed a complaint with the city labor board regarding the test. The labor board ultimately ruled the testing process unfair and ordered Collado placed on the promotion list. The city challenged that ruling and a trial court overturned the labor board’s decision. Collado pursued legal options and sued the city claiming a breach of his employment contract. Trial court ruled in the fire fighter’s behalf and ordered him promoted to captain with retroactive pay. City appeals.
HELD: The city does not dispute that it had an employment contract with Collado. However, it argues that it did not breach that contract. Breach of contract is a question of fact that is reviewed by an appellate court under the substantial evidence rule. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In denying it breached the contract, the city argues that all candidates who participated in the first session were subject to the same conditions and if it were unfair to Collado it was unfair to all. Thus, the city argues the trial court should at a minimum have voided everyone’s results. However, that was not the question before the trial court. The trial court found inconsistencies in the administration of the process which caused harm to Collado. It was under no obligation to review the entire process as to other candidates. Collado presented evidence, including expert testimony, that the city failed to provide a fair promotion process. Trial court correctly inferred that because Collado narrowly missed the cutoff, he was harmed by the city’s conduct. The city also contests the retroactive promotion of Collado. It is hardly outside the norm to conclude that equitable relief is the most appropriate way to make an employee whole. Equitable relief is commonly used to remedy the effects of employment discrimination. It is not limited to that area of the law, however, and is used also for breaches of contract. The city argues that the retroactive promotion was inappropriate because money damages would have been adequate to compensate Collado. However, calculating such damages would be too difficult and too speculative. Collado lost not only wages but various kinds of fringe benefits. His loss extended into the future, namely, his lost opportunity for additional increases in benefits that might have come his way had he been promoted in due course. Reinstatement or promotion may not be appropriate in every case, but it is appropriate in this case. Judgment of trial court affirmed for fire fighter. [Collado v. City of Albuquerque, 45 P.3d 73 (N.M. Ct. App. 2002)]
The city and the fire fighters’ union were parties to a collective bargaining agreement. The contract stated that paid leave shall be granted to any employee only for “injuries or other disabilities” as determined by the finance department director. Two fire fighters developed bilateral carpal tunnel syndrome during the course of their duties. Both men missed work to receive medical treatment. They applied for paid injury leave. The finance director, however, denied the leave on the ground that carpal tunnel syndrome was not a “disability.” Union grieved the matter but the grievance was denied. Pursuant to the contract, the grievance went to arbitration. The arbitrator denied the grievance, also finding that the fire fighters had not sustained any “disability.” In reaching his conclusion, the arbitrator relied upon the rules created by the city’s board of industrial relations that defined “injury” and “disability” as physical damage or medical condition caused by an “incident” in the actual performance of duties. Since carpal tunnel syndrome is not caused by a single traumatic incident, the arbitrator concluded that it was not a “disability” for the purpose of paid injury leave. The union took the matter to court, which refused to vacate the decision. Similarly, on appeal the court of appeals affirmed the arbitrator’s decision finding it drew its essence from the collective bargaining agreement. Union appeals.
HELD: A reviewing court’s role in evaluating an arbitration award is limited to determining whether the award is unlawful, arbitrary, or capricious, and whether it draws its essence from the collective bargaining agreement. State law requires that an arbitration award shall be vacated if an arbitrator exceeds his authority. The union maintains that by ignoring the plain meaning of a collective bargaining agreement and instead relying on the city definition of “disability” extraneous to the contract, the arbitrator exceeded his power. The union is correct. Even though the collective bargaining agreement does not define what is meant by the term “other disabilities,” this does not give the arbitrator authority to rely on the city’s definition. Instead, since the contract is silent on the point, the term “other disabilities” must be given its ordinary meaning. The law dictionary defines “disability” as the “inability to perform some functions; an objectively measurable condition of impairment, physical or mental.” It is clear that the fire fighters’ carpal tunnel syndrome falls within the ordinary definition of a disability. Although the labor agreement authorizes the finance director to make rules relating to injury leave, this provision simply authorizes the city to develop a procedural mechanism for determining injury relief claims. It does not authorize the director to unilaterally change the terms of the injury relief provisions of the labor contract. In finding an extraneous definition of “disability,” the arbitrator imposed an additional requirement on employees seeking paid leave and thereby violated the plain terms expressed in the labor agreement. The decision was not rationally derived from the terms of the labor contract and the arbitrator exceeded his powers. Award vacated. [International Association of Fire Fighters, Local 67 v. City of Columbus, 766 N.E.2d 139 (Ohio 2002)]
Fire fighters’ union and the city were parties to a labor agreement. The agreement recognized the union as the exclusive representative of bargaining unit employees. The contract provided that retired employees were eligible for medical and dental insurance at their own cost. The union filed a grievance alleging the city had violated the labor contract by requiring retired employees to pay a higher health care premium than the city paid for active employees. The city denied the grievance and the union sought to submit the matter to arbitration. The city declined to arbitrate and the union filed an unfair labor practice complaint with the state labor board. Following a hearing, the labor board determined that the city had not committed an unfair labor practice. Union appeals on the issue of whether the labor contract required the city to arbitrate disputes concerning retiree health insurance benefits.
HELD: Collective bargaining agreements generally are interpreted in the same manner as are other contracts. To interpret disputed contract provisions, a court must examine the text of the disputed provision in the context of the document as a whole. Unambiguous contracts must be enforced according to their terms. A contract is ambiguous if it can reasonably be given more than one plausible interpretation. Where provisions of a contract are mutually inconsistent, the contract is ambiguous as to the subject matter of those provisions. If the contract is ambiguous, the court must examine the extrinsic evidence of the contracting parties’ intent if it is available. If the ambiguity persists, the court resolves it by resorting to appropriate maxims of contractual construction. The city asserts that the contract is unambiguous because the recognition clause states that the union is the representative of members of the bargaining unit. Further, the bargaining unit consists of all sworn personnel of the fire bureau. Thus, the city says, the contract is referring to employees not to retirees. Contrary to this assertion, however, the contract does support the conclusion that the dispute is arbitrable. In the contract the parties agreed that the grievance procedure is the exclusive remedy for disputes regarding “issues covered by the bargaining agreement.” The subject of retiree health benefits is undisputedly one of the issues covered by the bargaining agreement. It would make little sense for the union not to be able to grieve retiree health insurance disputes because it would create a circumstance where there would be no penalty for violation of the city’s obligation to make available those benefits to the retired employees. The contract’s primary focus on the rights of active employees does not mean that the parties did not intend to permit the union to grieve other disputes arising out of the contract regardless of who they affect. Whereas here there is no extrinsic evidence to verify the parties’ intent beyond the stipulated facts, the court must resort to relevant third-level maxims of contract construction. One such maxim controls the outcome of this case. Where the arbitrability of a particular issue under a labor agreement is in dispute, arbitration must be ordered unless it can be said with positive assurance that the arbitration clause is not susceptible to interpretation that covers the asserted dispute. Thus, the ambiguity as to the arbitration provision’s coverage demonstrates an absence of positive assurance that the dispute is not arbitrable. Consequently, it is arbitrable. City committed an unfair labor practice by refusing to arbitrate the grievance over retiree health benefits. Reversed and remanded for fire fighter’s union. [Portland Fire Fighters’ Association, Local 43 v. City of Portland, 45 P.3d 162 (Or. Ct. App. 2002)]
Settlements
fire fighters
In a close vote in early June, members of Local 1926, International Association of Fire Fighters, AFL-CIO, approved a new four-year contract that initially affords little in the way of wage boosts. A two percent cost of living raise will be awarded the first year. The remaining years are subject to a wage re-opener. In addition, fire fighters will receive a 5.36 percent seniority bonus on the anniversary of their hiring. Fire fighters unsuccessfully sought the same $3,500 pay boost recently granted to the city's police officers but the city refuses to yield on the parity question. As a practical matter, some fire fighters will experience a pay cut because the contract increases the share of health care costs that employees must pay. The city refused to reduce fire fighter work hours but agreed to hire four additional fire fighters.
fire fighters
Milpitas City Council members have voted a three percent pay equity raise for the city's fire fighters. In addition, members of Local 1699, International Association of Fire Fighters, AFL-CIO, will also see an increase in longevity pay. The pay hike comes in the first year of an existing four and one-half year labor deal in order to establish pay parity with members of the police department. With the boost, fire fighter base pay goes to $65,034. A veteran fire captain will now top out at a base of $96,648.
fire fighters
Fire service personnel in the Alamo city have a new three-year labor pact. The recently inked agreement provides a three percent raise in each year. New to the agreement is random drug testing for all ranks including chief. Prior contracts required reasonable suspicion. Fire service personnel are represented by the San Antonio Professional Fire Fighters Association, Local 624 of the International Association of Fire Fighters, AFL-CIO.