President Bush and Homeland Security Director Tom Ridge have often praised the courage of the nation’s fire fighters, noting the critical role they play as first responders in the nation’s anti-terror efforts. But, according to the Washington Post, at the same time, the White House is resisting pressure from fire chiefs, fire fighter unions, and lawmakers to use federal money to help departments hire more personnel.
The International Association of Fire Chiefs (IAFC) and the International Association of Fire Fighters (IAFF), AFL-CIO, maintain that the nation’s fire departments are vastly understaffed and unprepared to cope with a terrorist attack. They want the Bush administration to create a federal grant program that would help communities hire 75,000 new firefighters over the next seven years, at a cost of $7.6 billion. There are roughly one million fire fighters in the United States, a number that has remained fairly steady over the past 20 years. But that total is not nearly enough for fire departments to meet staffing standards set last year by the National Fire Protection Association.
While the President may be reluctant to endorse the proposal, Congress is lending a more sympathetic ear. On October 2, the House Committee on Science heard testimony calling for passage of legislation that would fund the 75,000 new fire fighters. The bill, known as the “Staffing for Adequate Fire and Emergency Response (SAFER) Act” (H.R. 3992), would, if passed, place responsibility for oversight of the program under the U.S. Fire Administration.
The push to use federal dollars to pay for more fire fighters is modeled after the Community Oriented Policing Services (COPS) program, which has funded an effort to place 100,000 new police officers on the nation’s streets. Under the COPS program, the federal government subsidizes police salaries for the first three years. Local departments are then expected to continue the officers’ employment. SAFER would follow the same pattern for fire departments.
The Bush administration has proposed spending $3.5 billion for police officers, fire fighters, and other first responders in the next fiscal year, but it wants to use most of that money for equipment and training, not to hire personnel. The White House also reportedly wants to drastically cut spending for the COPS program, contending that state and local governments should pay for staffing.
“If the federal government is to invest in first responders...better that we invest in equipment, training exercises, and education, rather than paying partial salaries for firemen over a long period of time,” Director Ridge said. “I think the hiring of personnel for emergency response has been, is now and should be either a state or local responsiblity.”
“All the right equipment in the world and all the training isn’t really of much value if you don’t have adequate numbers of personnel to perform their mission,” said Harold Schaitberger, General President of the IAFF.
“We do not have enough fire fighters to do the job,” said Garry L. Briese, Executive Director of the IAFC. “We’re asked to work at maximum capacity on an infrequent basis. But it could have catastrophic consequences if we do not perform well.”
Rep. Sherwood L. Boehlert (R-N.Y.), chairman of the House Science Committee, noted that the shortage of fire fighters is “unsettling, and it’s potentially dangerous.” He said new fire fighters are desperately needed to fill gaps on volunteer departments as well as on departments staffed by career fire fighters.
As currently written, the SAFER Act would require jurisdictions to keep new fire fighters on the payroll for at least one year after the federal aid runs out. The federal assistance would pay for as much as 75 percent of a new fire fighter’s salary for a period of three years. The bill is unlikely to come to the floor for a vote before the current session of Congress adjourns. The bill will have to be reintroduced in January.
Discrimination against fire fighters for union activities has resulted in monetary judgments against two different governmental entities recently. In a case followed closely by the International Association of Fire Fighters (IAFF), AFL-CIO, a federal court jury awarded an Arkansas union president over $300,000 after a small town mayor refused to promote him. In another case, a $560,000 judgment was rendered against Cleveland, Ohio, for refusing to permit assistant chiefs to belong to the fire fighters’ union.
The president of the Springdale, Arkansas, fire fighters’ union who was fired in April by the city’s fire chief scored a victory in federal court in Fayetteville in mid-October. A jury found that the city, the mayor, and the fire chief violated Dean Bitner’s First Amendment rights when he was terminated after speaking out about fire fighter pay and morale.
“This court ruling is a significant victory for Dean Bitner, for the professional fire fighters of Arkansas, for the International Association of Fire Fighters, and for our IAFF brothers and sisters across the south,” said IAFF General President Harold Schaitberger. “This is a clear signal to mayors and city managers: The IAFF will not tolerate abuse and discrimination against our members who engage in appropriate union activities. I hope they all get this message loud and clear.”
Bitner was fired on April 25, 2002, after asking the fire chief why he
was not appointed to a committee concerning a pension plan for the department.
The city claimed the local union president was insubordinate and engaged
in conduct subversive to good order when he made the inquiry. The firing
was just one action in an escalating conflict between the city and Bitner,
which began after he addressed the Police and Fire Committee of the Springdale
City Council in early 2001. With the city administration’s permission,
Bitner gave a formal presentation to the council about matters related to
public safety, fire department understaffing, and loss of qualified fire
fighters to surrounding cities and counties due to pay disparity. The
fire chief reportedly was unhappy with the style of Bitner’s presentation.
Two weeks later, Bitner, who was number one on the promotion list for captain,
was passed over in favor of a lower ranking candidate, the first instance
in department history where the number one candidate was jumped. Shortly
before Bitner was passed over, the fire chief allegedly told him that he
was a risky candidate for promotion because of his local union activities.
In August 2001, Bitner filed a First Amendment lawsuit challenging the promotion
decision. Subsequently, he was reassigned and demoted to a less desirable
position and ultimately fired. The IAFF then stepped in to assist Bitner
with the lawsuit.
The city claimed Bitner was insubordinate and also responsible for a July sick-out by six fire fighters. “This case is about who’s the boss at the Springdale Fire Department,” M. Keith Wren, the city’s lawyer told the jury.
Jurors chose to believe Bitner and awarded him back pay, including for the period of time he was denied the captain’s position and his 30-day suspension, $100,000 in compensatory damages, $120,000 in punitive damages against the mayor in his individual capacity; and $120,000 in punitive damages against the chief in his individual capacity.
Lawyers for the veteran fire fighter will request the judge to award Bitner the captain’s position and to expunge his personnel file of all disciplinary references.
In Ohio, a jury awarded $560,443 in early October to a group of Cleveland Fire Department assistant fire chiefs and former assistant chiefs who were wrongly removed from the fire fighters’ union. The assistant chiefs asked the jury in Cuyahoga County Common Pleas Court to give them the raises they would have received if they had remained in the union. An arbitrator removed the assistant chiefs from the union in 1987, but a state labor relations board returned them to the union in 1998. Ten to twelve current and former assistant chiefs will split the money. A city official said an appeal would be filed.
“I feel like I’ve been slapped in the face for years by the city and a jury of our peers recognized that and that’s the biggest victory I feel right now,” said James Carroll, a retired assistant chief, commenting on the verdict.
Living together in the close confines of the firehouse can occasionally produce tension among the residents. Four Omaha, Nebraska, fire fighters have taken their conflict with a fellow fire fighter to a whole new level - they obtained protection orders against him! The protection orders against fire fighter Mike Beaudin, originally filed this summer, were kept in place following Beaudin’s unsuccessful court challenge in early October.
Douglas County court records indicate that a fire captain and three fire fighters had clashes with Beaudin. In at least one incident, Beaudin allegedly threatened to kill one or more of his colleagues. Department disciplinary action was taken resulting in Beaudin, a 13-year veteran, being suspended for two days and entering the employee assistance program. He was also transferred to a different firehouse.
One of the complaining fire fighters, Robert Zeleny, suggested in court documents that a major blowup in July stemmed in part from conversations about when Beaudin was getting married. According to Zeleny, Beaudin said he didn’t kiss and tell. Another fire fighter responded that things “had sure changed from the old Mike.” Beaudin allegedly blew up after the comment and stated he did not care about the department’s violence in the workplace policy. Subsequently, Beaudin allegedly made comments that were interpreted by the recipients as threatening to their personal safety.
According to a fire union official, Mike McDonnell, “Mike definitely crossed the line. He’s taken his discipline and he’s done everything that he’s supposed to so far.” The employee assistance program determined that Beaudin could return to work, McDonnell said.
Beaudin has been transferred to a different station. The protection orders remain in place.
Thousands of fire fighters from around the country joined New York City fire fighters in a pay rally October 11 that likely was the largest public sector labor demonstration in the country’s history. A relentless rain failed to dampen the mood of countless FDNY fire fighters who were joined by similar thousands of other fire service personnel who were in the city to take part in a commemoration ceremony the following day. While no official estimate of the crowd was announced, the International Association of Fire Fighters (IAFF), AFL-CIO, claimed that 50,000 fire fighters participated in the memorial service the next day honoring FDNY dead. Many of these fire fighters took part in the pay rally.
The stage was set for the rally when Uniformed Firefighters Association delegates voted down a city offer of an 11 percent wage hike over 30 months. Union leaders had tentatively approved the same offer last year shortly before the September 11th tragedy.
Participants at the Central Park rally heard from a range of fire union leaders, politicians, and entertainers, including actor/comic Denis Leary. In a profanity filled speech, Leary said, “Take the 11 percent and stick it . . ., Mister Mayor,” to the delight of the crowd.
Participants carried signs extolling the need for a pay raise. One protestor, noting the downpour, carried a placard reading, “I’m a New York City fire fighter. I can’t afford an umbrella.” Starting pay for a fire fighter is about $32,724 annually compared to $54,211 in Yonkers, a town north of the city.
The city’s deepening financial crisis may make resolution of the wage dispute difficult. The FDNY postponed plans to hire 300 fire fighters originally scheduled to report for duty at the end of the month. City officials are also discussing the possibility of closing some fire stations in order to reduce the department’s budget by 7.5 percent. A property tax hike is also being discussed.
Mayor Michael Bloomberg expressed disappointment at the union’s rejection
of the city’s 11 percent wage offer. He vowed that negotiations would
continue but said fire fighters should expect no miracles
In 1996, the city enacted a fair share resolution that provided authorization for the collection of fair share fees from individuals who were not members of a union but who worked under a collective bargaining agreement with the city. A group of non-union members brought suit alleging that the city’s procedures violated their First Amendment rights through compulsory deduction of union fair share dues. Trial court ruled for city and union and non-union members appeal.
HELD: U.S. Supreme Court has ruled that requiring employees to help finance a union serving as a collective bargaining agent is constitutionally justified only if there has been a legislative assessment by the public employer. Here, the city enacted a resolution that expressly provided that the collective bargaining agreement with the city may include a fair share provision if at least fifty percent of the recognized bargaining unit is made up of union members. This resolution conveys the clear intent to permit the collection of fair share dues. Non-union members are only required to pay the fair share fee that represents the union’s cost of bargaining on their behalf. The desirability of labor peace and eliminating free riders justifies the payment of fair share dues for the purposes of collective bargaining, contract administration, and grievance adjustment. Some courts, however, have found that fair share resolutions conflict with right-to-work laws. Most of these cases, however, have occurred where the fair share deduction was exactly equal to the amount of dues paid by union members. In cases where courts have found no conflict between fair share deductions and right-to-work laws, the deductions have consistently been limited to proportionate costs.
The fair share resolution in this case specifically limits the deductions to costs related to the employee’s proportionate share of the union’s cost of administering the contract. Thus, the resolution is consistent with this requirement. Prior case law also holds that non-union members must be given notice on how their fair share fee is calculated. The Supreme Court has held that the union need not provide the non-members with an exhaustive and detailed list of all of its expenditures, but must adequately disclose major categories of expenses as well as verification by an independent auditor. A simple statement that the union’s expenses were audited provides little assistance to a non-union member seeking to challenge the deduction. It is essential that the notice to non-union members provide an auditor’s explanation as to why the fees to be deducted are permissible. It is immaterial whether this explanation comes in the form of a report or underlying notes accompanying the audit. If the report itself is simply a conclusion that the deductions have been audited, the disclosure of the notes may prove necessary. It is the substance of the information, rather than the nomenclature of the means by which it is communicated, that is the proper focus of whether the disclosure requirement is met.
The non-members also object to a portion of their fee being sent to the local union’s international organization. The Supreme Court has held that a local bargaining representative may charge objecting employees their pro rata share of costs associated with otherwise eligible activities of the state and national affiliates, even if those activities are not performed for the direct benefit of the objecting employees. The language of the fair share resolution in this case clearly contemplates that non-members will be charged their proportionate share of union programs that are available to all bargaining units. The use of the word “union” in the law lacks clear intent to confine its application to permissible expenses occurred only by the local as opposed to the broader national union. There is evidence in the record, however, that a portion of the fees went directly to a national union. Such fees do not benefit the members of the local organization and their collection violates previous stated principles. The trial court is directed to hold a hearing to determine which fees are attributable to bargaining-related expenses as distinguished from those that do not benefit the local bargaining unit.
Finally, the non-members seek to avoid the indemnification agreement between the city and the union. The collective bargaining agreement requires the union to indemnify and hold the city harmless for all claims arising out of the imposition of the agency fee. The non-union members argue these provisions are void and unenforceable against public policy inherent in the First Amendment. Prior case law holds that such blanket indemnification clauses are repugnant to public policy because both parties to a fair share agreement must be held accountable for their respective responsibilities. A clause that relieves the employer of all consequences for failure to assume and conscientiously carry out its duties is against public policy. Thus, the indemnification agreement in this case is overbroad and unconstitutional. Case remanded for further proceedings. [Wessel v. City of Albuquerque, New Mexico, 299 F.3d 1186 (10th Cir. 2002)]
When the Supreme Court opened its new term October 7, justices proved to be disinclined to consider the only fire service case seeking review. The court refused to consider Farber v. City of Utica, New York, No. 01-1825. The inaction leaves in place a New York state court ruling that the employer is allowed to deduct the value of a fire fighter’s special supplemental pension from the disability benefit paid to him. The case involved a question of interpretation of the meaning of the New York fire fighter pension statute.
A one-year-old infant who was residing with his maternal aunt chocked on a grape. The aunt dialed 911 and informed the operator that her nephew was choking on a grape. The operator notified the fire department emergency medical technicians (EMTs) and informed the aunt that “rescue is going to help you.” Four minutes later, the aunt called again to determine when the EMTs were going to arrive. She was informed that “rescue was on the way.” When the EMTs had not arrived eight minutes after the original call, a third call was placed to the 911 operator and the caller was again told that help was on the way. The EMTs finally arrived at the residence about ten minutes after the initial 911 call was placed. They tried to restore the child’s breathing while transporting him to the hospital. Once at the hospital, the grape was removed from the child’s throat, but the child died several days later. After a tort suit in state court proved unsuccessful, the parent of the child filed suit against the city and the EMTs. The parent alleged that the son’s constitutional right to life had been deprived without due process in violation of the Fourteenth Amendment. Trial court granted summary judgment to the city and the EMTs on the grounds that the estate had not shown deliberate indifference by city policy makers. The estate of the deceased child appeals.
HELD: In 1989, the Supreme Court ruled that the due process clause of the Fourteenth Amendment generally does not require the government to provide intervention or rescue services. The court observed that nothing in the Due Process Clause requires the state to protect the life of its citizens against invasion by private actors. Rather, the clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. The clause is intended to protect the people from the state not to insure that the state protects them from each other. Two exceptions exist to this rule, however. The first exception is the special relationship exception where the state does owe an affirmative duty of care to persons such as prisoners and persons in mental institutions or otherwise in state custody. The second exception is the state-created danger exception, which involves situations where the government caused the harm or made someone more vulnerable to an existing harm. Neither of these situations exists in this case. The government generally has no constitutional duty to provide rescue services to its citizens. If it does provide such services, it has no constitutional duty to provide competent services to people not in its custody. The Constitution does not prohibit grossly negligent rescue attempts or even grossly negligent training of state employees. Here, the government played no part in the act - feeding the child the grape – that ultimately caused the death. State’s negligence, if any, was merely that it failed to interrupt the event that ultimately killed him. The deceased child simply had no constitutional right to be rescued from choking on the grape, nor a constitutional right to be provided with competent rescue services if the state did undertake the rescue. Neither the city nor the EMTs had anything to do with the child eating the grape nor had any constitutional duty to extract the child from that peril. Trial court was correct in dismissing the case for lack of a constitutional claim. [Brown v. Commonwealth of Pennsylvania Dept. of Health Emergency Medical Services Training Institute, 300 F.3d 310 (3rd Cir. 2002)]
Disciplinary procedures
For more than 26 years, Danley served in the fire department, ultimately reaching the rank of deputy fire marshal. After having served in that position for a period of time, he was demoted to the position of fire fighter. He appealed the demotion to the civil service commission. However, before the commission could consider the charges against him, the city reinstated Danley to the title of deputy fire marshal, including restoration of the salary lost during the period of the demotion. The city moved to dismiss the appeal to the commission on the basis that the reinstatement mooted the issues being pursued. Danley resisted the motion, contending that there were additional issues to be resolved beyond mere title and salary. He argued that he had suffered a de facto demotion because of loss of certain work benefits, such as office and vehicle assignments and travel opportunities. The civil service commission denied the city’s motion to dismiss and the city sought judicial review. Following a hearing, trial court ordered the commission to dismiss the appeal, saying the commission lacked the jurisdiction to hear the matter. Civil service commission appeals that order.
HELD: Prior case law in Iowa holds that under civil service law changes in employment hierarchy through a revision of duties or authority may be akin to a demotion. Demotion means something more than reduction in salary. To demote is to reduce to a lower rank or grade and there may be a demotion in the type of position though salary may remain the same. The civil service commission has jurisdiction to hear and determine all matters involving rights of civil service employees. Since Danley is alleging that certain benefits collateral to the position are no longer available to him, the claim falls within the jurisdiction of the civil service commission. Accordingly, trial court erred in holding that the commission lacked the jurisdiction to consider the case. If the matter is ultimately resolved contrary to the city’s position, the city still enjoys the ability to have a review of that decision by the courts. Reversed for fire fighter and remanded to civil service commission. [City of Des Moines v. Civil Service Commission of the City of Des Moines, 648 N.W.2d 579 (Iowa 2002)]
Gibson and several other city fire fighters were sent to a required training exercise at an out-of-town training facility. Each fire fighter received money for meals while traveling and was assigned to a designated vehicle for the trip. Gibson rode in a city vehicle with three fire fighters, all of whom were his superiors. Enroute to the training program, they stopped at a casino to eat. Shortly after arriving at the casino, another fire fighter won a jackpot while playing the slot machines. Gibson brought the fire fighter a cup to put his winnings in and began helping him collect coins from the floor. As both men bent down, a pin gun fell from the fire fighter’s pocket and discharged injuring Gibson. Subsequently, Gibson filed for job-related disability benefits. The retirement board ruled that his injuries were not incurred in the line of duty and awarded him non-duty disability benefits. On judicial review, however, the trial court found that indeed Gibson had been disabled in the line of duty. Retirement board appeals.
HELD: Louisiana statutes grant a retirement board authority to award a service- connected disability pension to individuals totally disabled as a result of injuries sustained in the performance of their official duties. Retirement board asserts that it was unreasonable to rule Gibson’s injury occurred in the line of duty because the fire fighters had stopped at a casino where some fire fighters were playing the slot machines. However, the record reflects that the route between the city and the training site passed through the town where the casino was located. Likewise, the city had no policy stating that it was unacceptable to stop at a casino for lunch. Gibson had consumed no alcoholic beverages while at the casino and did not gamble. Since the fire fighter was on a mandatory training exercise funded by his employer, the retirement board acted unreasonably in concluding that stopping to eat at the casino constituted a substantial deviation from his job. Affirmed for fire fighter awarding job-related disability pension. [Gibson v. Firefighters’ Retirement System, 822 So.2d 98 (La. Ct. App. 2002)]
fire fighters
The average annual base pay for an Andover fire fighter will increase by $4,000 during the next two years to $45,530 thanks to a new three-year contract crafted by an arbitrator. In addition, the town has committed to studying the addition of paramedics to the department’s ambulance service. Currently, fire fighters are trained only at the emergency medical technician level. Andover’s 73 fire fighters, who have been without a contract since June 2001, are covered by the award.fire fighters
Fire fighters employed by the Englewood Area Fire Control District have approved a new three-year labor contract worth over 12 percent in wage hikes. The pact would also reduce the hours fire fighters could be paid for unused sick time from 144 to 96. However, the remaining time will roll over as vacation time. In an unusual provision, the pact mandates that fire fighters pre-schedule in December half of their vacation days for the coming year. Fire fighters are represented by Local 2546 of the International Association of Fire Fighters, AFL-CIO.
Tulsa, Oklahoma
fire fighters
Veteran fire fighters will receive a five percent wage hike while less
tenured personnel will garner increases averaging three percent under a new
labor accord between the City of Tulsa and Local 176 of the International
Association of Fire Fighters, AFL-CIO. The raise for the less senior
personnel is tied to job performance ratings. An incentive pay is added
for members of the hazardous materials team and longevity pay is altered
to equal that paid to the city’s police officers. The one-year pact
is retroactive to July 1.