In a blow to public safety unions, the California Supreme Court has struck down the state’s binding arbitration statute. The opinion issued April 21 said the law, which required binding arbitration in cases of impasse in negotiations, conflicted with two provisions of the California Constitution. The decision has no effect outside the state or on other meet-and-confer requirements in California.
The legislation, known as SB 402, imposed a mandatory system of binding arbitration on cities and counties that were unable to reach accord with public safety employee associations on wage and benefit disputes. The bill was passed and signed by the governor in 2000 over the strong objections of many municipal officials.
Reaction to the ruling split along management-labor lines. The League
of California Cities expressed satisfaction with the decision finding SB
402 unconstitutional. “This is good news for local democracy,” said
League Executive Director Chris McKenzie. “The League opposed SB 402
because the legislation turned critical budget decisions over to private
arbitrators, irrespective of local voters’ wishes.”
Meanwhile, Harold Schaitberger, General President of the International Association
of Fire Fighters (IAFF), AFL-CIO, called the court’s decision “an affront
to every professional fire fighter in the State of California.” He
characterized the ruling as “only a temporary setback,” although future strategies
to reinstate binding arbitration were not specified. Presumably, an
amendment to the state constitution will be necessary to validate the law,
the tact taken when a Pennsylvania court struck down that state’s arbitration
law in 1962.
The case decided by the court originated in Riverside County in 2001, when the deputy sheriff’s union invoked SB 402 to resolve a disagreement with county officials on wage and benefit issues. The county’s argument that SB 402 was unconstitutional prevailed with the court of appeals. All parties to the lawsuit reportedly endorsed review by the Supreme Court in order to obtain a definitive ruling on the law.
Associate Justice Ming W. Chin, writing for a unanimous court, pointed out that the California Legislature holds broad lawmaking authority, except where specifically limited by the state constitution. In this instance, one section of the constitution mandates that the governing body of a county “shall provide for the number, compensation, tenure, and appointment of employees.” SB 302 conflicts with this section by placing that responsibility in the hands of arbitrators. While the legislature may regulate labor relations in the state, it may not totally deprive counties of authority to set salaries, Justice Chin said.
SB 302 also violates a constitutional provision prohibiting the legislature from delegating to a “private person or body” the power to interfere with a county’s or municipality’s money. This conflict would appear to make the ruling applicable to California cities as well.
The court turned back the union’s argument that all aspects of public
safety labor relations were a matter of statewide concern subject to the
legislature’s control. In rejecting this view, Justice Chin found it
persuasive that the legislature had imposed on local governments binding
arbitration in case of impasse but had specifically exempted the state.
The ruling does not directly affect 22 locally enacted ordinances providing
for binding arbitration. Justices also left open the question of whether
a county can submit to binding arbitration voluntarily.
Labor groups, such as the IAFF, the California Professional Firefighters,
and various police unions, had filed friend of the court briefs in the matter.
bargaining agent
The formally designated organization, usually a labor union, which represents employees having collective bargaining rights. In the public sector, state and local laws define its rights and obligations.
The Portland, Oregon, Fire Bureau has rescinded an order to remove American flags from fire apparatus after hordes of complaints from the public and fire fighters about taking down Old Glory. Fire Bureau Deputy Chief Gary Warrington had ordered his downtown fire engines to remove the flags to prevent provocations of local anti-war demonstrators.
“The fire fighters were complaining, the citizens were complaining - it was a lot of public outcry against the decision,” said Tom Chamberlain, President of the Portland Fire Fighters Association, Local 43 of the International Association of Fire Fighters, AFL-CIO. “I’ve never heard of a protester attacking a fire truck,” the veteran fire fighter said.
Deputy Chief Warrington’s order March 24 to three downtown companies to remove the flags noted, “This policy will continue until we no longer have sustained close contact interaction with protesters and demonstrators. We do not want extremists attacking our apparatus and our personnel.” But the bureau reversed the order one day later after a slew of complaints and efforts by the fire fighters’ union to push for a compromise.
Area fire fighters began flying the flag after the September 11 attacks. The emblem was soon seen on rearview mirrors and other parts of the vehicles. However, some fire fighters, sensitive to protocol, thought some displays of the flag were improper. Top fire bureau officials talked the issue over, researched proper flag-displaying etiquette, and issued a policy allowing trucks to display and fly them. But after an antiwar protest featuring several flag burnings, with fire crews present, Warrington decided on a new policy: take down the flags.
“I absolutely want to stand up and support the flag. All I was trying to do was keep our members from being put in harm’s way,” Warrington said.
Even anti-war protesters dismissed the decision to remove the flags. “I have never heard anything so ridiculous in my life,” said Will Seaman, organizer of the Portland Peaceful Response Coalition. “Emotions are very high . . . but there’s an overwhelming clear and dedicated commitment to nonviolent protest against this war.”
Saying Boston had achieved its goal of racial parity among entry-level fire fighters, the U.S. Court of Appeals ruled in late March that the city no longer needs to abide by a court order that has controlled fire fighter selection for nearly 30 years. The long-standing court order, known as the Beecher decree, was the result of two discrimination lawsuits filed by minority fire fighter applicants in the early 1970s against a number of Massachusetts municipalities - including Boston. The lawsuits collectively resulted in the omnibus consent decree, which was upheld on appeal in 1974. The Boston Fire Department (BFD) has since used the guidelines of the decree to seek racial balance in the department.
Under the consent decree, qualified minority fire fighter candidates are ranked on one list, while non-minority candidates are ranked on another. Appointees to the department were then chosen in pairs, one from each list, until all available positions were filled. Though some 45 other fire departments around the state had met Beecher’s goals, Boston had continued to be bound by the decree’s constraints.
A majority of the three-judge panel ruled March 27 that racial equality in staffing had been accomplished. In November of 2000, blacks and Hispanics represented 40 percent of Boston’s fire fighters and 38 percent of the city’s overall population, according to the ruling.
“Remediation has taken more than a quarter-century. At long last, however, that objective has been achieved with respect to the BFD; parity has been reached between the percentage of minority fire fighters in the BFD and the percentage of minorities in the city as a whole,” Judge Bruce M. Selya wrote in the majority opinion. In the ruling, the appeals court reversed a lower court decision that found in favor of the city, but stopped short of ordering a remedy, saying that the lower court must now “sort through this tangle” and determine how best to proceed.
Attorney Toni G. Wolfman who represents the National Association for the Advancement of Colored People (NAACP), which brought the original suit, said she hoped the ruling would not result in a return to discriminatory hiring. “I just hope the commissioner and those in charge of hiring and employment practices in the fire department do not read more into this decision, more than is actually there, and do not take this decision as a green light for the kinds of practices in which they have engaged in the past,” Wolfman said.
Harold L. Lichten, an attorney representing five white fire fighters who had sued the city when they were not offered jobs in the Boston Fire Department in 2000, said the men are “delighted” with the ruling.
In 1984, the city enacted an ordinance, which was approved by the voters, to provide an annual tax levy to fund the fire fighters’ pension plan. However, future ordinances levied property taxes at a rate lower than that established in the original ordinance. As a result, the amount of funds actually contributed to the fire fighters’ pension plan was less than the amount originally contemplated. The fire fighters’ union brought suit against the city alleging a violation of the constitutional right to due process and an impairment of contract. Fire fighters sought an accounting of the amounts in the pension fund.
Trial court dismissed the suit saying that the union had failed to state a claim that it, rather than the pension fund, was entitled to the money that the city should have levied. Fire fighters appeal.
HELD: Standing to challenge a law is present when the challenger has experienced a direct injury or will soon sustain a direct injury redressable by the court. If a plaintiff has not suffered an injury, there is no standing and the court is without jurisdiction to consider the matter.
Here, the pension plan has arguably suffered an injury as a result of the city’s failure to levy property taxes at the originally agreed rate. However, it is for the trustees of the pension plan to bring an action against the city, not for the fire fighters as beneficiaries. As a general rule, a beneficiary may not bring an action on behalf of a trust against a third party. The right to bring such suit belongs to the trustees. This means the fire fighters cannot pursue their claim. Affirmed for city. [International Association of Fire Fighters, Local 2665 v. City of Clayton, Missouri, 320 F.3d 849 (8th Cir. 2003)]
Skaarup was serving as city fire marshal. He was advised that two of the five inspector positions in his department were being eliminated. A female, Griego, held one of the positions. The other was held by a male who Skaarup viewed as one of his best performers. Griego later called Skaarup in distress. She was being transferred and feared a loss of salary. Skaarup called his own superior, the fire chief, to find out what was going on and the fire chief told him that “a deal must have been struck” between the fire fighters’ union and city management. The fire chief then opined that the elimination of fire inspectors showed the pattern of how the deputy city manager mistreated employees.
Two days later, Skaarup talked to two female fire fighters not within his chain of command. He wanted to find out their inside opinions about what was going on and whether there was a pattern of discrimination against females. Skaarup told the two female fire fighters that the union had “sold Griego down the road” and that her elimination was an example of the deputy city manager firing women over forty who were single heads of households. He further suggested that the fire chief also believed that city management was targeting women.
Following the meeting, the two female fire fighters sent memos to the assistant city manager relating the substance of their conversations with Skaarup. Skaarup was subsequently charged with making untrue statements that were derogatory and disrespectful to city management and discredited the fire department. He was suspended without pay for eight days. Skaarup did not appeal the suspension.
About one year later, city counsel hired a consultant to conduct a management
review of all city departments. Among the consultant’s 92 recommendations
was the reclassification of Skaarup’s fire marshal job to that of fire inspector.
City counsel voted to accept the recommendations and Skaarup was reclassified
to the lower position of fire inspector. He filed suit charging a violation
of his free speech rights.
Trial court granted summary judgment to the city on the free speech claim,
holding that the city had the right to run an efficient fire department and
that Skaarup’s comments were divisive in a way that would affect morale.
Fire inspector appeals.
HELD: Clearly, Skaarup incurred an adverse employment action, the eight-day suspension, as a result of his speech. A portion of his speech, that the city was discriminating against women over 40 touched upon a matter of public concern. Therefore, it is appropriate for the court to balance his right to speak against the city’s interest in effective government. Skaarup spoke privately to two individuals and made no effort to address the allegations with his superiors or to make them public. At the hearing on his demotion, he presented no evidence that he spoke to the women because of their expertise on women’s issues. Furthermore, the allegations that Skaarup made were hearsay as he lacked firsthand knowledge of the truth.
While no rule exists that speech to be protected must be truthful, it
is equally clear that untruthful information about government is not helpful
to the public. At best, Skaarup was taking sides with the fire chief
in his dispute with the deputy city manager. The fire chief seized
on the transfer of the two employees, one a woman, to try to make the matter
one of gender discrimination.
Public interest in bureaucratic infighting is small. On the other side
of the balance, the city certainly has an interest in not having its reputation
besmirched by comments attributed to the fire chief. This interest
is heightened by Skaarup’s relatively prominent position. As a matter
of law, the interest of the city outweighed Skaarup’s right to retell the
fire chief’s and his own suspicions, especially given the narrow focus and
limited audience to whom he spoke.
Skaarup, likewise, was not retaliated against. There is no evidence that the citywide reorganization based on a consultant’s study was motivated by a grudge against Skaarup. Dismissal of case affirmed for city. [Skaarup v. City of North Las Vegas, Nevada, 320 F.3d 1040 (9th Cir. 2003)]
Hunter was appointed a probationary fire fighter on March 1, 1996. His initial appointment was for a six-month probationary period. As the end of the six-month term approached, superior officers concluded that Hunter did not yet meet fire department expectations. The decision was made to extend the initial six-month probationary period and review Hunter’s performance on a monthly basis.
Over the next two months, several minor incidents further convinced the fire officers that Hunter had not learned the rules and procedures of the department sufficiently. Ultimately, the city decided to terminate Hunter’s employment on October 31, 1996.
After the termination, Hunter filed a grievance with the fire fighters’ union. The grievance was denied on the grounds that Hunter had never been confirmed as a permanent member of the fire department and, thus, could not be a member of the fire fighters’ union and subject to the grievance procedure. Hunter and the union then filed suit.
The city responded that Hunter was not a union member, and even if he were, he was still a probationary employee to whom the state law concerning dismissal for cause did not apply. Trial court granted the city’s motion for summary judgment and terminated fire fighter appeals.
HELD: Under Montana law, a discharge is wrongful if the employee has completed the employer’s probationary period and the discharge is not for good cause. Hunter argues that the trial court erred when it considered him a probationary employee because his initial probationary period could not lawfully be extended. Hunter cites a previous case involving a police officer whose probationary period was extended and the court ruled such extension to be unlawful. Hunter, however, fails to note that the probationary term laws covering police officers and that for fire fighters are two different statutes. In the case of police officers, the statute says they must first serve a probationary period of not more than one year, whereas a fire fighter’s appointment “shall first be made for a probationary period of six months.” Nothing in this statute limits a fire fighter’s probationary period only to six months.
Hunter argues, however, that a fair and reasonable reading of the law prohibits unilateral expansion of an employee’s probationary period. Prior case law holds that an employer must define the probationary period at the outset of the employment relationship. The proof in this case shows that fire department policy required at least six months probation, written recommendation from two supervisors, and successful passing of a written examination before a person could obtain permanent fire fighter status. A city personnel analyst said she explained these rules to Hunter as part of a two day orientation program for new fire fighters in which Hunter participated.
Since the evidence suggests that the city did indeed define the probationary period at the outset of the employment relationship with Hunter, trial court did not err in finding that he was a probationary employee when terminated. Summary judgment for city affirmed. [Hunter v. City of Great Falls, 61 P.3d 764 (Mont. 2002)]
fire fighters
The Bucyrus City Council and members of Local 1120 of the International Association of Fire Fighters, AFL-CIO, have approved a three-year contract retroactive to the first of the year. Fire fighters will receive an immediate 3.5 percent wage hike. Pay increases in the next two years are subject to further negotiations depending on insurance costs. New fire fighters will now earn about $26,300 annually while a captain will draw a base of $40,200.
fire fighters
Buffalo fire fighters have ratified a new two-year contract that will
garner them pay raises while saving the city up to $1 million annually.
The pact, retroactive to July 1, 2000, grants fire fighters a 2.25 percent
pay hike in each year, raising the top base salary to $51,072. The agreement
also imposes severe restrictions on light duty assignments. No more than
nine fire fighters will be allowed to be on light duty at any one time.
Fire fighters will have to use sick leave before light duty will be available.
In previous years, as many as 40 fire fighters have been on light duty.
The next round of negotiations has already begun and is expected to focus
on the city's desire to reduce the size of the department because of economic
difficulties. Local 282 of the International Association of Fire Fighters,
AFL-CIO, represents Buffalo fire service personnel.