IAFF General Counsel Doug Steele and the firm of McGillivary Steele Elkin LLP have a long-standing commitment to protecting the legal interests of the IAFF and its affiliates. As part of that commitment, General Counsel Steele and two associate attorneys, Mike Keefe and Nicole Gonzalez, are located at IAFF headquarters and devote their full time to advising and representing the International.
In addition, the partners and associates located at the offices of McGillivary Steele Elkin LLP also devote long hours to serving the IAFF’s legal interests and the interests of members and affiliates in litigation throughout the United States. IAFF Canadian Legal Counsel Sean McManus similarly protects the interests of our affiliates throughout Canada.
During the period since the last Convention, our General Counsel’s office has handled several court cases, arbitrations and other matters protecting the interests of the International and safeguarding the rights of our local leaders and members.
In addition to establishing favorable court precedents and obtaining relief for adversely affected members, the IAFF has also been able to recover substantial court-awarded litigation fees and expenses against employers who have violated the law. This permits the recovered funds to be used again in the next deserving case.
Guardian Policy Cases
The IAFF Guardian Policy makes available direct legal representation from the General Counsel’s office in two categories of cases: 1) protecting union leaders and activists who have been subjected to retaliation for engaging in union-related activities or speaking out on matters of public concern affecting union members and 2) cases expected to have a precedent-setting impact on other IAFF affiliates and members outside the particular affiliate that is directly involved.
Assistance is obtained by submitting an application through an affiliate’s District Vice President. The General Counsel’s office then prepares a legal opinion for the General President’s approval. Significant cases handled by the General Counsel’s office since the last Convention include the following:
DJ Olson and IAFF Local 601 v. City of Havre, Montana
In this arbitration case under the International’s Guardian Policy, the arbitrator found that Local 601 President DJ Olson was wrongfully terminated by the City of Havre, Montana, awarding him reinstatement to his job with backpay and lost benefits.
Since 2015, city and fire department officials have been pursuing a campaign of harassing Local 601 officers and targeting Local 601 President Olson with unjustified discipline, often after he advocated and filed a grievance on behalf of the members.
In August 2017, DJ Olson became the District Vice President for the Montana State Council of Professional Fire Fighters. A few weeks later, Fire Chief Paulson and Assistant Chief Jones began to question the validity of his medical certifications. Assistant Chief Jones told Olson that he would be the subject of a National Registry of Emergency Medical Technicians (NREMT) investigation. However, Olson spoke with a NREMT representative, who told him that no such investigation had been initiated. In November 2017, the department informed Olson that several records were missing from his station training and personnel files. Three weeks later, Olson found the documents in Assistant Chief Jones’ file cabinet.
The IAFF General Counsel’s office sent a push back/cease and desist letter to city officials in January 2018. The response from the city and the fire department was to engage in more serious retaliation by terminating DJ Olson. The IAFF pursued the matter to arbitration.
After a hearing, the arbitrator issued a favorable decision on January 14, 2019, upholding the union’s grievance contesting DJ Olson’s discharge. First, although the city accused Olson of falsifying his state licensure certification papers, the arbitrator held that the city failed to provide any evidence that Olson falsified his records. Further, the arbitrator noted that two other fire fighters who were accused of the same allegations as Olson received only a verbal and written warning, so termination was not justified.
The city had also accused Olson of insubordination and using profanity against the assistant chief. While Olson denied the allegation, the arbitrator held that even if he used profanity, Olson’s behavior did not warrant termination and “would ordinarily be dealt with by counseling or minor discipline.”
Lastly, the city accused Olson of gross negligence when he did not have a fire apparatus in ready-to-respond condition by the end of his shift as an acting captain. Although the arbitrator did agree that his crew should have continued to work on the apparatus and have the truck ready before the next crew arrived for their shift, the arbitrator held that it was a relatively minor infraction justifying no more than a five-shift suspension.
For relief, the arbitrator ordered DJ Olson’s reinstatement to his position as engineer with 14 months of backpay and lost benefits and reduced the discipline to only a five-shift suspension. DJ Olson returned to work in March of 2019 and all remedies have been implemented. DJ Olson has since repaid the $10,000 grant he received from the Justice Fund.
Lonnie Thomas and Local 2879 v. Ocean City-Wright Fire Control District, Florida
In this Guardian Policy matter, former President Lonnie Thomas and IAFF Local 2879 prevailed in arbitrations that overturned the adverse actions taken against President Thomas – which were part of a series of retaliatory measures imposed by the Ocean City-Wright Fire Control District. The district sought to build a record of progressive discipline upon which it could eventually accomplish its goal of terminating Captain Thomas.
The remaining arbitration case challenged the discharge of Local 2879 President Thomas for his protected union activities. That last case has been recently settled on positive terms.
The string of adverse actions by the district included: 1) a five-shift suspension; 2) a reprimand for submitting a supply order to the wrong email address; and 3) a negative performance evaluation based, not on Thomas’ job performance, but instead upon his agenda. Each shows unique scrutiny of Thomas’ activities and selective enforcement of district policies being applied to Thomas after he filed a complaint with the district’s Board of Commissioners on behalf of Local 2879 members regarding a toxic work environment created by the District Chief William Lord and Assistant Chief Scott Funchess.
The union previously prevailed in arbitration against the district about the five-shift suspension, the reprimand and the negative performance evaluation. He was granted full relief in each of the arbitration awards.
The incident that led to Captain Thomas’ eventual discharge involved a minor injury to another fire fighter that allegedly Captain Thomas did not immediately report and fill out the paperwork. The letter of termination asserted that Thomas violated more than a dozen policies and CBA provisions. Captain Thomas was placed on administrative leave until November 15, 2017, when he was terminated.
The favorable arbitration awards upholding the grievances and setting aside earlier discipline, undercut the argument of the district that it properly followed progressive discipline leading to its planned termination of Thomas. This record gave Local 2879 President Thomas a strong position to obtain a positive settlement about his remaining case.
The district decided to seek a global settlement that included a parallel whistleblower lawsuit filed by Thomas against the district. Resolution of the whistleblower suit, which involved overlapping facts with Thomas’s grievances, also resolved the pending grievance over Thomas’s termination. During settlement negotiations, Thomas indicated that he did not wish to return to work for the district. However, he did want his backpay and to secure certain provisions in the settlement agreement to protect his future ability to seek employment as a fire fighter, namely, a resignation-in-lieu-of-termination provision and a neutral reference provision. The district agreed to these terms and Thomas received the substantial sum of $125,000, resolving both the whistleblower lawsuit and the termination grievance. That amount greatly exceeded the backpay he could have recovered in arbitration over his termination.
Lonnie Thomas expressed his gratitude to the IAFF and District Vice President Walt Dix for the IAFF’s support in righting the wrongful retaliation against him as the local’s president, obtaining just results and bringing this matter to a positive conclusion.
Brandon Jones and Ryan Murphy v. Morongo Valley Community Services District, California
On February 21, 2018, the District placed Local 5028 President Brandon Jones and Treasurer Ryan Murphy on paid administrative leave, and eventually discharged them in July 2018. Murphy faced multiple charges, including insubordination. However, the timing and other factors indicated that the terminations of Engineers Murphy and Jones were effectuated to avoid the union and so that their paid positions could be replaced with volunteers.
Murphy’s case was heard before Arbitrator Hart on January 9 and 10, 2019 (Jones’s case was settled previously). The parties submitted post-hearing briefs and on March 19, 2019, Arbitrator Hart found for Murphy. Arbitrator Hart specifically rejected each of three insubordination charges that formed the basis for the District’s termination of Murphy’s employment. The District had alleged that Murphy was insubordinate because he 1) failed to include the fire chief’s name in staffing reports (instead using only his numeric designator), 2) failed to immediately respond to an email from the chief requesting a scene size up at his earliest convenience), and 3) built a training prop without the fire chief’s permission.
First, Arbitrator Hart concluded that the District terminated Murphy before he had an opportunity to respond to any requirement that he include the chief’s name in a staffing report. Also, he found that the chief failed to forewarn Murphy that failing to do so could lead to his termination. Second, Arbitrator Hart found that Murphy complied with the chief’s request for a scene size up. Third, he concluded that there was no policy prohibiting Murphy from building a training prop and that he obtained permission to build it. He referred to this last charge as a water sandwich.
Arbitrator Hart, therefore, found that the District’s actions were arbitrary and capricious, and ordered it to put Murphy back to work, to expunge his personnel file and to award him make-whole relief. Murphy has now returned to work and the parties successfully negotiated over the terms of Murphy’s make-whole relief, including full backpay, some interest, restoration of lost sick leave and payment for out-of-pocket medical expenses.
Spokane Valley Fire Department v. IAFF Local 3701, Washington
On July 11, 2017, the City of Spokane Valley, Washington, filed a suit against Local 3701 for a declaratory judgment that its members (battalion chiefs and the fire marshal) were exempt from the FLSA. At contract negotiations, the local stated that it did not believe its members were exempt from the FLSA but made no threats of litigation. Nevertheless, the city decided to drag the local into court to litigate the purely academic question of FLSA exemption. The local’s counsel was unsuccessful in its attempts to have the lawsuit dismissed, and litigation progressed into the discovery phase.
Local 3701 then sought Guardian coverage to obtain assistance in dismissing the city’s abusive litigation, which was granted. At the close of discovery, Local 3701 filed a dispositive motion, arguing that the city lacked standing pursuant to Article III of the Constitution sufficient to give the court subject matter jurisdiction over the case.
On February 19, 2019, the Court sua sponte converted the motion for judgment on the pleadings to a summary judgment motion, asking the parties to file statements of material facts not in dispute, postponed all pretrial dates and set an oral argument on the summary judgment motion for April 23, 2019. Both sides submitted statements of material facts, which the city – in apparent desperation – used to add several irrelevant legal arguments concerning state law that it had failed to raise in its briefing.
On April 18, 2019, the court issued a written order, concluding that oral argument was unnecessary, and dismissed the city’s lawsuit in its entirety. Because Local 3701’s members were unaware of any FLSA underpayments they were currently owed and did not have any past or current intention to sue the city, the court ruled that it lacked subject matter jurisdiction to consider the city’s declaratory judgment claim. Because the city failed to establish that any FLSA claim had accrued or was certainly impending, it had presented only conjectural and hypothetical injury, which was insufficient to give the court subject matter jurisdiction under Article III of the United States Constitution. The court went on to reject each of the city’s last-ditch alternative arguments in turn, ruling, among other things, that the city’s hypothetical state law arguments were completely irrelevant and that one of the city’s arguments “takes too great of liberties” with the evidence.
This case represents an important victory for Local 3701 and other unions that could have found themselves the target of similarly harassing lawsuits had the city’s blueprint proven successful. Instead, this case – into which the City poured over two years’ worth of attorneys’ fees and obtained no relief whatsoever – serves as a cautionary tale for other municipalities that might try to intimidate unions at the bargaining table with the threat of declaratory judgment litigation.
Local 2945 v. City of Fulton, Missouri
This matter involves the City of Fulton’s continued refusal to re-enter collective bargaining negotiations with Local 2945 and efforts by city officials to eliminate the union.
Previously, Local 2945 had been actively engaged in collective bargaining negotiations with city representatives on a successor contract. As required, the agreement negotiated by the local and city negotiating team was submitted to the city council for approval. During the council meeting, the city’s bargaining team spoke in support of the agreement. However, during that same meeting, City Administrator Bill Johnson recommended that the council not approve the agreement. Johnson’s recommendation came as a shock to local representatives as he had indicated during negotiations that he thought the agreement would be workable. Following Johnson’s negative recommendation, the city council voted to reject the agreement.
Subsequently, the local attempted to return to the bargaining table and suggested dates for future negotiation sessions. The city failed to respond to these requests and instead pushed forward with its efforts to unilaterally establish new policies that would take the place of the contract. The city has distributed these policies to its employees asking them to acknowledge receipt of the policies and commit to abiding by them. Notably, the city threatened the employees that if they refused to sign off on these new policies, it would revert policies back to 2013 levels and rescind any increase in benefits that have been provided since that time.
The Missouri Constitution explicitly provides employees with the “right to organize and to bargain collectively through representative of their own choosing.” Mo. Const. art. I, § 29. The Missouri Supreme Court has found that the duty to bargain also imposes a duty to bargain in good faith. Unlike many states that have created public employee relations boards to handle labor issues with public employers, challenges to an employer’s failure to bargain in Missouri must be pursued through the state courts.
The local made the city aware that it was ready and willing to engage in additional negotiations. The city ignored the local’s efforts and instead sought to deal directly with the local’s members by having them express their agreement to abide by the terms of the city’s new employee handbook – which contained changes to mandatory subjects of bargaining that were not previously submitted to the local during negotiations. The city’s refusal to bargain, its efforts to implement unilateral changes to mandatory subjects of bargaining, as well as its efforts to avoid bargaining with the local and instead reaching out to its members, constituted bad faith bargaining in violation of state law.
A complaint was filed in Missouri state court regarding the city’s regressive bargaining and its efforts to break IAFF Local 2945.
Mediation was held in October 2018, where a tentative settlement was reached on terms favorable to the local and its members. The city administrator was at the mediation, agreed to the terms of the settlement, and claimed that he would recommend approval to the city council.
After the October 2018 mediation, the city raised an issue with one item in the previously negotiated settlement agreement and ultimately backed out of the mediated settlement agreement. Given the city’s continued bad faith, the local amended the petition and asked the court to re-open discovery and set a date for trial. The court did so, and both parties scheduled and served additional discovery. Following the depositions of the local and some of its leaders, the city once again expressed an interest in settlement.
On May 28, 2019, the Fulton City Council voted unanimously to approve the CBA between the city and the local. The local has since ratified the agreement.
Local 198 v. Atlantic City, New Jersey
This Guardian Policy case involves Local 198 and Atlantic City’s current financial crisis. In November 2016, pursuant to the state’s Municipal Stabilization and Recovery Act, Governor Chris Christie designated Jeffrey Chiesa to serve as the receiver or designee responsible for overseeing the takeover and operation of the Atlantic City government. Chiesa and his representatives/attorneys met with public sector unions, including IAFF Local 198, to discuss the severe proposals of the designee to change the terms and conditions of the fire fighters’ employment. The changes included laying off up to 100 fire fighters, or almost one-half of the fire department. The General Counsel’s office filed a state court action on behalf of Local 198 against the city, the state’s designee and other defendants seeking a Temporary Restraining Order (TRO) and Preliminary Injunction to prevent implementation of the changes, asserting violations of the New Jersey Constitution and other laws.
On February 2, 2017, the state court judge entered a TRO, enjoining Atlantic City, the designee, and other officials from implementing unilateral changes in the city’s fire services and Local 198’s labor contract.
On March 17, 2017, the judge partially granted plaintiffs’ motion for a temporary injunction, and enjoined all layoffs pending the outcome of this action. Because of the financial crisis, and the broad authority given to the state to operate the city, the court did permit changes regarding longer shift schedules, overtime/wages and benefits.
On July 6, 2017, however, the designee informed the court that he planned on decreasing the fire department to 148 members. The designee sought the court’s permission to terminate approximately 70 fire fighters effective September 21, 2017. On behalf of Local 198, we objected to the proposal and provided sworn statements from Fire Chief Scott Evans, Dr. Lori Moore-Merrell and others that the appropriate department size was larger and that no fire fighters should be terminated or it would have a substantial adverse impact on the public safety of the city’s residents and visitors.
On August 25, 2017, the court issued a very favorable decision prohibiting any layoffs of Local 198 members. The court concluded that the appropriate department size is 180 fire fighters and enjoined any layoffs to achieve that staffing level. The court ordered that any reductions in force can only occur through retirements and attrition. This decision ensures that no Atlantic City fire fighters will lose their jobs and is a significant victory for the IAFF, Local 198 and the membership.
On December 7, 2017, the General Counsel’s office filed an Order to Show Cause requesting temporary and permanent restraints to prevent the designee from instituting an 11.3% salary cut affecting all fire department employees. After the briefing concluded, a hearing was held before the judge on January 10, 2018. Local 198 and the individual plaintiff fire fighters also filed an Order to Show Cause challenging the designee’s decision to lay off several fire department employees as of February 1, 2018.
The court issued an order on January 24, 2018, favorably ordering all temporary restraints currently in effect to remain in effect, ordering that the planned February 1, 2018, layoffs not take place and dismissing all pending motions without prejudice so that the parties could continue to engage in settlement discussions.
The CWA and the police union reached earlier settlements with the state that do not require payouts on claims of those unions or their members. In both of those settlements, all monies being used for current employees have been recovered in the budget due to retirements, resignations, etc. Because of the loss of the SAFER grant, the fire department is not in this situation, despite losing approximately 40 fire fighters since the state’s 2016 takeover due to retirements, resignations, etc.
The parties actively mediated all matters relating to members’ employment (including many not raised in litigation) since the fall of 2018. On May 7, 2019, the parties enlisted the assistance of Mediator James Mastriani. Although Mastriani had been selected by the parties in late 2017, the defendants’ new representatives (Genova Burns LLC) refused to use his services until May 2019. After Mastriani’s involvement, the parties engaged in multiple day-long mediation sessions.
In July 2019, the parties reached a tentative global settlement to resolve all issues. The parties finalized the global settlement in September 2019 and the new schedule negotiated in the global settlement became effective September 29, 2019.
The global settlement includes terms favorable to Local 198. As a result of the settlement, no employees will lose their jobs, and the city will hire additional staff to replace employees who retired during the negotiation. As part of the global settlement agreement, some employees who left the city during the takeover will be rehired.
The city has agreed to recognize the union as the exclusive representative for those employees at the rank of deputy chief and below, negating an earlier N.J. Public Employee Relations Commission ruling finding that deputy chiefs were not entitled to union representation, and that battalion chiefs and captains could not be in the same bargaining unit as rank-and-file fire fighters. As part of this recognition, the city agreed to a system for employees to challenge discipline and resolve contractual grievances for the duration of the takeover.
The other two main terms of importance to the fire fighters concern wages and hours. The fire fighters will get some relief from the changes implemented by the state on both accounts.
As to hours, the designee imposed a 56-hour week. They are not paid overtime because the city regularly sends employees home when they reach their FLSA overtime threshold. The designee also converted the schedule to a three-platoon model to minimize staffing needs. The global settlement agreement implements a 48-hour work week on a four-platoon model and adopts a Baltimore-style system, with 24-on, 24-off, 24-on, 120-off, and an impact day approximately every 28 days.
The designee also determined that battalion chiefs were FLSA-exempt. Under the global settlement agreement, the city will pay 207(k) overtime to all employees at the rank of battalion chief and below.
Pursuant to the designee’s salary guide, the maximum pay for a fire fighter has been $79,830 since November 2017, and the top step of the scale in the global settlement agreement is $106,267 (with a 2% raise on July 1, 2022), which allows the fire fighters to recover some of the financial ground they lost during the state’s takeover.
Aaron Brown v. Rincon Valley Fire District, Arizona
The IAFF approved Guardian Policy assistance for Local 5100 President Aaron Brown, when the Rincon Valley Fire District did not promote him due to his union activity.
On January 9, 2019, the district notified President Brown that it did not select him for the open acting captain position for which he applied. President Brown repeatedly requested that management provide him with the justifications for the decision so that he could work on any issues and possibly be selected next time.
In an audio-recorded meeting with his captain, two battalion chiefs and the fire chief on February 9, 2019, Brown learned that, although they were happy with his performance and his ability to work with his crew, the decision was made based on negative perceptions against him. When Brown asked the managers to clarify, they told him that they did not view him as someone who can work with management because he frequently brings local members’ issues and problems to their attention. They essentially told him that he, as local president, complains too much.
The managers further explained that according to city policy, they were able to use the Rule of Three to select one of the top three who tested for the position. However, their reasoning behind selecting a candidate who may have tested lower than President Brown, but still in the top three, is because they are unhappy with his advocacy as local president.
It is well established that the First Amendment to the U.S. Constitution protects the right of free association, which includes the right to belong to and to actively participate in labor organizations. By failing to promote President Brown for his union activity, the district violated his constitutional right to association.
The facts demonstrate that when the district failed to promote President Brown, it did it to retaliate against him for his union activity. Accordingly, President Brown had a strong claim that the district retaliated against him for exercising his First Amendment right to free association. Because several fire district managers have been perfectly clear – in a consensual audio recording – that the reason they did not promote him is because of his advocacy of local grievances, the evidence demonstrates that the district’s adverse action — failure to promote — is intrinsically tied to his union activity. In fact, they implied that they were annoyed by the frequency with which he brings local issues to the attention of management. Thus, in this case, President Brown’s protected conduct is the motivating factor for the adverse action, and it will be extremely difficult for the district to prove that it would have still denied President Brown the promotion in absence of his union activity.
Additionally, the Arizona Public Safety Employees’ Bill of Rights provides that public safety employees serving any city, town, county or fire district in Arizona have the right to join employee associations which comply with the laws of this state and have freedom to present proposals and testimony to the governing body of any city, town, county or fire district and their representatives. A.R.S. § 23-1411(A). The statute further provides that a “person shall not be discharged, disciplined or discriminated against because of the exercise of these rights.” Id. Given this statutory language, it seems plain that by failing to promote President Brown, the district and chief also violated his state-law right to engage in union activity.
Brown filed a complaint against the district and Chief Kahle on April 19, 2019, alleging retaliation for his union activity in violation of his First Amendment right to free association. The parties have reached a settlement, and Brown received $5,000 in backpay for the difference in salary he would have been paid had he been promoted to acting captain. The district also paid $11,000 in attorneys’ fees and costs.
Local F-273, Fort Belvoir Army Base, Virginia
This Guardian case concerns Local F-273’s arbitration over staffing reductions by the Fort Belvoir Army Garrison (“Fort Belvoir” or “Garrison”). In 2018, the Garrison had lowered its staffing levels for fire & emergency services (F&ES) without following the procedures established by Department of Defense Instruction 6055.06 (“DODI 6055.06”). It then denied the local’s grievance, claiming that an Army policy authorized such deviations from the DoD standards.
Article 11, Section 1 of Local F-273’s collective bargaining agreement provides that the parties shall adhere to all applicable Army, DoD and federal regulations. On December 21, 2006, the Department of Defense issued DODI 6055.06, which imposes staffing requirements for F&ES on Army installations. Section 6.3 establishes the standards for calculating minimum staffing levels at Army installations, and anticipating that some may deviate from those requirements, Section 6.16 directs the heads of DoD components, such as the Secretary of the Army (“SECARMY”), to develop risk management procedures consistent with the section.
The Garrison issued a memorandum on October 25, 2018, reducing the daily staffing level to 25, or a total staffing level of 91. Local F-273 filed a grievance alleging the Garrison had violated Article 11, Section 1 of the CBA by failing to comply with the minimum staffing requirements and deviation procedures set forth in DODI 6055.06. The Garrison denied the grievance, claiming that a September 2018 policy memorandum issued by the Army’s Assistant Chief of Staff for Installation Management (“ACSIM”) authorized such deviations from the DoD standards.
Local F-273 and IAFF 16th District Vice President Jim Johnson invoked arbitration and requested assistance under the precedent-setting prong of the IAFF Guardian Policy because reliance on the ACSIM policy by other base commanders to make unilateral changes could subvert the standards for safe fire ground staffing on a national scale.
Local F-273 could solidly argue that the Garrison’s October 25 staffing reduction constituted a contract violation. The bargained-for staffing level was 110 positions. Moreover, the Garrison had a contractual obligation to comply with all applicable Army, DoD and federal directives, and the local believed that it would be able to demonstrate through testimony from technical experts, former Fort Belvoir fire chiefs and possibly Army Command, that the required staffing for Fort Belvoir based on DoD, NFPA and USAMAA standards is, in fact, a staffing level of 110.
The parties jointly selected Arbitrator Samantha Tower and were scheduled to go to hearing on October 10 and 11, 2019. However, prior to the hearing, the agency took steps to increase minimum staffing and approached the union regarding settling the grievance. The parties exchanged settlement proposals but were initially unable to reach a resolution. Instead of proceeding with arbitration and the attendant risks involved for the union, particularly in light of the positive staffing changes made since the grievance was filed, the parties agreed to postpone arbitration and instead schedule mediation with an FMCS mediator. Mediation was held on February 5, 2020, at which time the parties settled the grievance.
Pursuant to the settlement, the agency agreed to increase the minimum staffing to the number that the union requested in the grievance. The settlement also required the agency to rescind the policy setting the lower staffing number. Finally, the agency agreed to negotiate if there is a change to the law regarding staffing levels and to not change the minimum staffing number without a risk assessment.
Chris Spencer v. City of Hendersonville, Tennessee, et al
On November 4, 2019, Chris Spencer, a private citizen of Hendersonville, Tennessee, filed a complaint in the United States District Court for the Middle District of Tennessee against the following parties: City Hendersonville; Scotty Bush, in his official capacity as fire chief of the Hendersonville Fire Department (“HFD”); and Secretary-Treasurer for Local 3640 Paul Varble, in an individual capacity and his official capacity as fire marshal.
In his complaint, Spencer alleged that the defendants unlawfully interfered with the 2018 Fifth Ward Alderman election in violation of the 1st, 9th and 14th Amendments to the United States Constitution and 42 U.S.C. § 1985 – a federal statute that prohibits civil conspiracies to deprive an individual of equal protection, privileges and immunities under United States laws. Specifically, Spencer alleged that Varble unlawfully interfered with Spencer’s candidacy for election to the Fifth Ward Alderman’s office when he acted in his official capacity as fire marshal to coerce other fire fighters to help campaign for Spencer’s opponent, Jonathan Hayes, and unduly influence voters to vote for Hayes.
In the fall of 2018, when Spencer ran against Jonathan Hayes for the Fifth Ward Alderman’s position, Local 3460 supported Hayes because Spencer had publicly stated that he would vote against fire fighter pay raises, new administrative offices and a new HFD building. On the other hand, Hayes had publicly supported such funding and, as a result, the local organized and campaigned on behalf of Hayes by canvassing houses in the Fifth Ward. Spencer claims that Varble coerced HFD fire fighters to canvass for Hayes and that the fire fighters wore T-shirts that read “Hendersonville Fire,” which improperly led citizens to believe that the fire fighters were campaigning in their official capacity as city employees. In fact, the local decided together to campaign for Hayes and wore T-shirts with the IAFF logo and “Hendersonville Fire” surrounding it. Spencer also claimed that the fire fighters engaged in political activity while on duty and on city premises – which is not true.
Spencer further alleged that Varble unlawfully conspired with Hayes and other sitting Alderman in violation of Tennessee state law. These allegations stemmed from conversations Varble had with Hayes and other sitting alderman expressing that the local would support candidates who will vote for policies that the local is interested in – which is not illegal. On one occasion, Varble texted a sitting alderman from a city-issued cell phone and offered to buy her lunch; however, Spencer cited no other concrete facts indicating that Varble, Hayes or any alderman acted inappropriately.
Spencer also alleged that the defendants retaliated against him for engaging in his First Amendment right to free speech. Spencer claimed that the retaliation consisted of unlawfully influencing the election, making defamatory and disparaging statements against him, intimidating him at public hearings and sending a legally baseless letter from an attorney threatening to sue [him]. Spencer claimed that the speech for which he was retaliated against was his speech at public hearings. As explained above, neither Varble nor the local unlawfully interfered with the election. Furthermore, Spencer did not specifically detail what defamatory or disparaging statements were made or what about the letter from the local’s attorney was legally baseless.
These allegations were unfounded and without merit and, in November 2019, Guardian coverage was approved to defend Varble in this action. On January 8, 2020, we filed a Motion to Dismiss Spencer’s complaint and, after full briefing, on March 12, 2020, Spencer filed an amended complaint alleging additional facts against the City of Hendersonville. We filed another Motion to Dismiss on behalf of Varble on April 2, 2020. On September 17, 2020, the Court granted our motion and dismissed the action against Varble and the other defendants in its entirety, finding that Spencer had failed to plead sufficient facts to support his claims.
As for the claims against Varble, the court first dismissed any state claw claims because the statute does not have a private right of action. As for the Constitutional Law claims, the court held that the plaintiff’s (“Spencer”) allegations all fell under First Amendment violation and retaliation claims. The court held that Spencer failed to plead sufficient facts to allege how Varble violated his First Amendment rights. The court noted that Spencer did not allege any specific facts showing how Varble interfered with Spencer’s rights to political speech, association and the ability to run for political office. Indeed, the court acknowledged that Varble’s actions in campaigning for Spencer’s opponent are typical in public elections.
Similarly, the court dismissed Spencer’s First Amendment retaliation claim because he did not plead sufficient facts alleging that Varble “took an adverse action against him that would deter a person of ordinary firmness from continuing to engage” in the protected conduct, which is the second prong of the First Amendment retaliation test. Specifically, the court dismissed this claim against Varble because it could not find that Varble’s campaign efforts “would deter a person of ordinary firmness from continuing to campaign on his own behalf and attempt to spread his own political message.” The court further noted that “[a]n adverse campaign is the price of running for political office.”
Finally, the court dismissed Spencer’s “class-of-one” Equal Protection Claim because he had not pled sufficient facts alleging a First Amendment violation. The court noted that even assuming Spencer’s allegations might give rise to a viable class-of-one claim, Varble is entitled to qualified immunity.
Mucci v. St. Francois County Ambulance District, Missouri
Mr. Marc Mucci worked at an ambulance district in Missouri until his termination for submitting grievances and speaking out on issues of public concern. His speech included speaking to the district’s board of directors regarding his concerns that the district’s administrator had been misusing public resources by assigning himself and his hand-picked group of well-paid district officials to deployments under the district’s FEMA subcontract. His protected activity also included speaking up about the district’s failure to enact policies on important public and employee safety issues, submitting a grievance over the district’s failure to provide the employee training as required by the collective bargaining agreement and negotiating a large pay raise for the entire membership of Local 3705, which went into effect three days before his termination,.
As a result of his protected conduct, the district placed Mr. Mucci on administrative leave, forced him to undergo a pretextual fitness for duty examination and ultimately terminated him.
On July 1, 2019, we filed a complaint against the ambulance district and its board, both in their individual and official capacities, in the United States District Court for the Eastern District of Missouri, alleging violations of Mr. Mucci’s rights to speech and association, as set out in the First Amendment, the Missouri Constitution and Missouri law.
We took the depositions of the district, five members of the board of directors, and the district’s administrator, from January 13, 2020, to January 17, 2020, during which the district witnesses made dozens of shocking admissions. All witnesses admitted that the impetus for placing Mucci on administrative leave were his statements on matters of public concern at a November 26, 2018, board of directors meeting. Additionally, one witness admitted to feeling that Mr. Mucci’s speech on union matters had grown tedious, while another admitted to referring to submitting grievances on matters of public concern as Mr. Mucci’s “usual BS,” and still another admitted to referring to Mr. Mucci as a “cockroach” and to telling another employee his plan to dig a hole so deep “[Mucci] can’t crawl out.” The district took Mr. Mucci’s deposition on February 7, 2020, and the parties were referred to mediation.
On June 15, 2020, the parties participated in a remote mediation that concluded with a mediator’s offer, which we countered on behalf of Mr. Mucci on June 22, 2020. The district accepted the counteroffer and the parties executed a confidential settlement agreement. In addition to the confidential settlement terms, the IAFF received $180,000 in reimbursed legal fees, costs and expenses.
Local 3666 v. Frederick County, Maryland
This is a new Guardian Policy case. In 2018, Frederick County voters approved a charter amendment to allow county fire fighters to collectively bargain over wages, benefits, working conditions and other terms of employment. The charter amendment also called for binding arbitration over labor disputes. Prior to the amendment, fire fighters were only permitted to negotiate over wages and benefits. As a result of the charter amendment, the Frederick County Council was required to pass an ordinance providing for collective bargaining and binding arbitration. The council did not begin working on a draft ordinance until June 2019.
In February 2020, the county council approved legislation that does not bind the county council to an arbitrator’s decision and allows the council to approve or disapprove any additional funding required to implement an arbitrator’s decision. The legislation did not provide for binding arbitration, as required by the Frederick County charter and significantly decreases the working conditions that fire fighters may negotiate. The local unsuccessfully attempted to explain to the county council the deficiencies in the legislation.
The Maryland Court of Appeals addressed a similar situation in Anne Arundel County, Maryland, after the county council in that jurisdiction passed legislation releasing it from its duty to implement binding arbitration awards required by a charter amendment identical to the one approved by voters in Frederick County. Atkinson v. Anne Arundel County, 428 Md. 723 (2012). The court rejected the county’s argument and explained that the voters of a county, exercising their power to amend the charter, can direct that their policy decision be implemented by the county council.
We have filed a suit on behalf of the local in the Circuit Court for Frederick County, seeking declaratory judgment and injunctive relief.
Local 1366 v. Cedar Falls, Iowa
In this Guardian Policy case, the City of Cedar Falls violated Iowa’s civil service laws, giving rise to two separate legal actions to challenge the city’s unlawful actions.
The first case arose from the promotion of cross-trained public safety officers (PSOs), to supervisory positions in the fire department. Beginning in October 2018, the city transferred eight PSOs from the police department to the fire division. These PSOs were introduced into the fire division nominally at the fire fighter level, although they were assigned some supervisory duties. In early 2019, the city initiated a promotional process for new supervisory positions in the fire division – public safety supervisor (“PSS”) captain and PSS-lieutenant. The job descriptions for the PSS positions require that candidates hold only a Fire Fighter I certification and that they be certified as Iowa police officers or reserve police officers. The city arranged for all the PSOs from the police department to obtain their Fire Fighter I certification but did not facilitate any of the professional fire fighters obtaining the necessary police certifications. When the professional fire fighters applied for the PSS positions, the city deemed them ineligible and excluded them from the promotional process. The city then certified the promotional eligibility list for the PSS positions comprised entirely of PSO candidates.
On June 3, 2019, the city council voted to appoint two PSS-captains and seven PSS-lieutenants, effective June 29, 2019. The PSOs who were promoted to these positions were not required to meet the reasonable minimum physical and experiential requirements as required by Iowa Code § 400.17. The job descriptions for the PSS-captains and PSS-lieutenants indicate that they out-rank battalion chiefs and fire captains, respectively, although an organizational chart produced by the city indicates that they are equivalent to those positions. Yet, these PSS-captains and PSS-lieutenants were subject to much less stringent experiential and physical standards than the occupants of the corresponding fire positions.
On June 28, 2019, Local 1366 filed a petition for injunction and declaratory relief with the Iowa District Court for Blackhawk County, arguing that promotion of personnel to these fire division positions who lack the statutorily required credentials placed its members and the public in danger. Following the filing of the local’s petition, the city filed an answer and the parties engaged in partial discovery.
On February 20, 2020, the city filed an early motion for summary judgment on the petition for injunctive and declaratory relief. The union filed an opposition to the city’s motion on March 23, 2020, and the city filed a reply brief on March 30, 2020.
The second legal action filed as part of this Guardian Policy case is a prohibited personnel practice charge with the Iowa Public Employment Relations Board, challenging the city’s move to eliminate the fire fighter position in Cedar Falls. The city pursued this action quickly in early 2020, following a presentation to the city council by the public safety director explaining the city’s intention to move to a fully integrated public safety model. On February 20, 2020, the same day as the city filed its motion for summary judgment, the city council voted to implement full integration of its public safety program and to eliminate the fire fighter position in Cedar Falls. The mayor of Cedar Falls vetoed the measure, but the city council overturned the veto. The city placed all professional fire fighters on administrative leave pending layoffs, which were set to become effective June 22, 2020.
On April 2, 2020, in response to this drastic action by the city council, Local 1366 filed a charge with the Iowa Public Employment Relations Board (PERB) arguing that the layoffs were, in fact, terminations motivated by anti-union animus, and that the elimination of the fire fighter position involved a mandatory subject of bargaining over which the city was required to negotiate.
Petition for Injunctive and Declaratory Relief: Following oral argument, the court denied the city’s motion for summary judgment on May 26, 2020. The court agreed with the arguments we made on behalf of the union and found that, contrary to the city’s arguments, the city had an ongoing obligation to ensure that individuals employed in any capacity in its fire or police departments met reasonable physical and experiential requirements for their positions. The court also denied the city’s argument that the court lacked subject matter jurisdiction, as well as another argument made by the city that section 400.17 of the Iowa Code did not apply to promotions.
Trial is scheduled for June 22-25, 2021.
PERB Charge: A judge has been assigned and a hearing has been set for February 24 and 25, 2021.
PERB Petition for Declaratory Order: The city has petitioned PERB for a declaratory order on whether a one-person bargaining unit is viable. Local 1366 currently only has one member, President Scott Dix, because the city laid off all its fire fighters. In addition to Local 1366, several other unions have intervened in the case, including the International Union of Operating Engineers Local 234, Iowa Federation of Labor, Iowa Professional Fire Fighters and Iowa State Education Association. The next deadline in the case for the intervenor briefs was January 24, 2021.
IAFF Local F-253, Ft. Myer, Virginia
This Guardian case arises from the denial of official time to Local F-253 President Michael Jackson to attend training at the Harvard Trade Union Program for which he had received a scholarship from the IAFF.
The collective bargaining agreement between the local and the agency specifically provides that official time is available for training and a negotiated standard operating guideline (“SOG”) further describes specifically situations and trainings where official time will be granted for training and how much official time union officials may receive every year for training. In addition, previously, chiefs and other employees had been granted time off for training.
The local grieved the denial of official time for President Jackson. The agency responded claiming that, under the CBA, the local has the responsibility for showing that the training will have a certain required benefit to the employer and that the local did not meet this standard. The agency concluded that most of the classes were “internal union business” and did not merit granting official time but did grant 40 hours of official time for some classes.
The official time statute, 5 U.S.C. § 7131, does not preclude parties to an agreement from agreeing to provide official time for matters other than labor-management relations. AFGE Nat’l Council of Field Labor Locals and Department of Labor, MSHA, Denver, 39 FLRA 546, 553 (1991). That is precisely what the parties did, both within the CBA and in executing an SOG specific to these types of trainings in September 2017.
In denying official time, the agency effectively ignored both past practice and the SOG, which was executed more recently than the agreement and is more specific. The SOG specifically states that “official time will be granted” to local officers to attend IAFF-sponsored training. SOG 12 also specifically provides for 120 hours of official time for training for each officer. As a result, the agency’s argument that the training is not to the benefit of the agency or is internal union business is not as relevant as the SOG, which directly applies to this circumstance.
However, even if the SOG were invalid, Article 5 of the CBA states that official time will be granted if the training is to the parties’ mutual benefit. The local has argued that the SOG is consistent with this, because the IAFF-sponsored trainings are inherently beneficial to both parties. The local has also argued that it satisfied the requirement that the requested time is of mutual benefit by presenting the agency with a list of classes that are beneficial to both management and the local and why they are beneficial.
The local has also argued that in enacting the Federal Service Labor-Management Relations Statute, Congress found that “the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing . . . safeguards the public interest . . . contributes to the effective conduct of public business, and . . . facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment.” 5 U.S.C. 7101(a)(1). This language demonstrates that training for local officials is in the agency and local’s interest in effective conduct of public business.
Finally, the local has argued that the agency abandoned established past practice by denying official time to President Jackson. Although the agency admits that a past practice has been established under SOG 12, it notified the local that this past practice “will stop.” Therefore, the local has argued that the agency has changed past practice concerning conditions of employment. The FLRA has determined that “training which pertains to employees’ performance of their job requirements or which would result in better organizational or individual performance clearly relates directly to the work situation of employees.” AFGE v. Dep’t of Educ., 35 FLRA 56 (1990).
On March 24, 2020, the arbitrator issued an award in the union’s favor sustaining President Jackson’s grievance and ordering the agency to pay him 80 hours of back pay. The arbitrator found that the parties’ SOG capped official time for training at 120 hours annually but that the training at issue qualified for the full amount of annual official time for training. The arbitrator also ruled that the union could submit a petition for attorneys’ fees within 60 days of the date of her award. However, on April 22, 2020, the agency filed exceptions to the arbitrator’s award with the Federal Labor Relations Authority. The union notified the arbitrator and requested to submit a petition for attorneys’ fees if and when the FLRA denies the agency’s exceptions. The union submitted its opposition to the agency’s exceptions on May 22, 2020. The parties are awaiting a decision from the FLRA on the agency’s exceptions.
Snider v. City of South Pasadena, California
In this Guardian Policy case, the City of South Pasadena terminated Local 3657 President Cliff Snider in retaliation for his union leadership activities. President Snider was enforcing the right to bargain over changes in working conditions, first by requesting to bargain and later by filing an Unfair Labor Practice (ULP) charge over the city’s refusal to bargain. After an earlier back injury, and while he was on paid sick leave, Snider participated in an 8-mile “Spartan Race.” Chief Mario Rueda terminated Snider on the asserted grounds of dishonesty, abuse of sick leave, bad faith and failure to notify a supervisor that he felt well enough to return to duty.
The city’s action in discharging President Snider showed anti-union animus, given the undisputed timing in this case. On May 11 and 19, 2016, Snider and Local 3657 requested the city to bargain over the assignment of light duty. The city refused. Snider filed an ULP charge with the state PERB on June 8, 2016, regarding the city’s refusal to bargain; seven days later, on June 16, the city began its investigation into Snider’s conduct (participating in the Spartan Race that occurred four months earlier) and placed him on administrative leave. The PERB issued a ULP complaint on September 28, 2016, alleging that the city improperly refused to bargain; five days later the city proposed Snider for termination (effective on December 7, 2016).
The IAFF filed an ULP charge claiming that President Snider was terminated for exercising his union leadership activities in violation of the state’s Meyers–Milias Brown Act.
An evidentiary hearing was conducted before the PERB Administrative Law Judge (ALJ) on January 22-23, 2018, and following the filing of briefs, the ALJ issued a favorable decision on April 10, 2018, finding that the city’s termination of President Snider was unlawfully based on Snider’s union activity. Specifically, the ALJ found that the timing of the city’s investigation and termination of Snider supported a finding of retaliation because the city hired its investigator less than one month after Snider began his protected conduct and the formal investigation began less than one week after Snider filed the failure to bargain ULP charge. He further found that the city’s timing in issuing the notice of intent to terminate, less than one week after the filing of the PERB complaint involving the city’s refusal to bargain, showed that “the city took steps toward terminating Snider’s employment soon after significant developments” in the bargaining requests and related ULP filings, and that this “strongly supported” Snider’s retaliation claim.
The PERB ALJ held that the city conducted a “cursory investigation” because the city’s decision maker, Chief Mario Rueda, admitted in his testimony at the hearing that neither the investigator nor the city itself made any attempt to speak with Snider’s physician or review Snider’s medical records, and that this was problematic because “understanding what activities, if any, Snider’s doctors considered appropriate seems to be not only an obvious, but a critical component of the city’s investigation.” In addition, he found the “city’s assertions that Snider committed a serious transgression rings hollow when it took no action to investigate those transgressions until months later.”
Moreover, the ALJ concluded that the city engaged in disparate treatment and administered a disproportionate penalty in light of the city’s past practice of handling disciplinary matters “in house” through informal discussion, especially in light of undisputed testimony that the city previously did not seek to discipline another employee for known abuse of sick leave.
Additionally, the PERB ALJ determined that the city failed to rebut the evidence of retaliation, noting that the city did not demonstrate that Snider engaged in misconduct that Chief Rueda alleged in the termination documents. He found there was no requirement that Snider report his doctor’s instructions regarding exercise to the city, and the city made no efforts to ascertain the extent of Snider’s physical limitations while on leave. Finally, the ALJ stressed that Chief Rueda did not dispute that Snider never denied or tried to conceal his participation in the Spartan Race, despite the city having cited the alleged “concealment” as a reason for the termination.
In sum, the PERB ALJ concluded that the city did not establish that Local 3657 President Snider engaged in the misconduct he was accused of, and it failed to support its asserted reasons for the discharge. Consequently, as the hearing evidence demonstrated, the city was held accountable for violating President Snider’s rights and committing an unfair labor practice by terminating him.
The city filed exceptions to the ALJ’s decision on its appeal to the PERB, which the union responded to in 2018.
On February 3, 2020, the board issued a decision upholding the ALJ’s decision. Noting the “chilling effect that may reverberate throughout the bargaining unit when one of the employees’ leaders has been the victim of a threat or reprisal,” the board emphasized that President Snider’s aggressive stance on labor management issues, his actions to enforce the collective bargaining agreement through filing ULPs that resulted in backpay to employees, and his position as union president meant that he engaged in protected activity under the MMBA. In discussing the city’s unlawful motivation, the board also found that the city failed to use progressive discipline, and that the termination was disproportionate both with discipline imposed on other employees and his alleged conduct.
In light of this, the board found that the ALJ correctly concluded that the city terminated Snider in retaliation for his protected activities. As a remedy, the board ordered all the relief requested, specifically ordering the city to: rescind the termination; expunge President Snider’s disciplinary record; reinstate President Snider to his position of engineer; make President Snider whole for all financial losses, including backpay, plus 7% interest; and post a notice for 30 days stating that the city’s actions violated the law.
The city filed a writ of extraordinary relief from the board’s decision to California state court on February 28, 2020. The Public Employment Relations Board filed the administrative record from the PERB proceedings with the Court of Appeal (Second Appellate District, Division One) on May 8, 2020.
The city filed its appellate brief on July 13, 2020, and we filed a response brief on September 16, 2020, on behalf of President Snider. PERB also filed a response brief on September 16, 2020 in support of its decision finding that the city retaliated against Snider.
In addition, the parties have engaged in global settlement negotiations in an attempt to resolve President Snider’s PERB case (arising from his termination), as well as separate outstanding workers’ compensation claims that Mr. Snider has pursued against the city. Mr. Snider presented a global settlement offer counter proposal on August 26, 2020. The city has yet to respond.
Local 2612 v. Sedgwick County, Kansas
This case, which was handled under the IAFF’s Guardian Policy, involves the question of whether the Sedgwick County Fire District #1 (“District”) unilaterally implemented provisions of a labor contract in violation of Kansas law has engaged in anti-union misconduct.
When Local 2612 and the district negotiated a new union contract, the parties reached tentative agreement on most articles negotiated but were unable to reach an agreement on compensation. Impasse was declared in October 2015 on compensation only, and the parties invoked the impasse resolution procedures under the Kansas Public Employer-Employee Relations Act (PEERA). Local 2612 waived its right to mediation and the parties went straight to fact finding. The fact finder issued recommendations on pay, but the district rejected those findings. Despite the local’s willingness to negotiate and reach an agreement on compensation, the district recommended the county board unilaterally impose a contract on Local 2612 members to resolve the impasse. On June 8, 2016, the county board held a public hearing and voted to unilaterally implement a contract on Local 2612. Significantly, this contract imposed changes to fire fighter compensation, retroactive to January 1, 2016, as well as imposed terms that deviated from those provisions to which the parties tentatively agreed on during negotiations.
Local 2612 filed an unfair labor practice charge under the Kansas Public Employer-Employee Relations Act (“PEERA”) before the Kansas PERB on November 4, 2016, regarding the district’s unilateral imposition of contractual terms different from those to which the parties had agreed on prior to impasse proceedings.
A hearing was held before the administrative law judge (“ALJ”) on April 27, 2017. The ALJ issued his recommended findings, which were, for the most part, against the position of Local 2612. He found that although some of the issues were mandatory subjects of negotiations, he determined that the district did not commit a prohibited practice under PEERA because: (1) the vacation issue did not involve vacation allowances, but rather vacation scheduling — which is a management prerogative; (2) performance evaluations related to promotions and uniform items were mandatorily negotiable, but no tentative agreement was reached during negotiations; and (3) the district’s use of volunteers and part-timers outside the bargaining unit is not a mandatory subject of negotiations and is not significantly related to express conditions of employment for the employees in the bargaining unit. The ALJ further held that the district’s actions were not taken in bad faith because there was no evidence of anti-union animus.
The union filed a petition for review of the initial order in June 2017 on the grounds that the ALJ ignored both the undisputed facts and the applicable legal standards in finding in favor of the fire district. On December 7, 2020, the Kansas Public Employee Relations Board (PERB) issued final order in the union’s favor and overturned the initial order of the ALJ.
As an initial matter, and importantly, the PERB held that even though Sedgwick County withdrew from PEERA’s coverage in 2018 and the contract at issue was no longer in effect, the case was not moot. This is because “questions involving PEERA mandatory negotiability and the interplay between that construct and the issues of proper procedures for utilizing the Act’s impasse process, and the taking of unilateral action by an employer governing body clearly involves a question of public interest likely to arise in the future unless settled by a court of last resort.”
The PERB also found that all of the contract articles at issue involved mandatorily negotiable subjects, and that the district had committed a prohibited practice under PEERA in each instance that it unilaterally imposed contract terms on the union with respect to mandatorily negotiable conditions of employment that were inconsistent with the tentative agreements reached by the parties during negotiations and on which impasse was never declared.
Second, the PERB held that the district committed a prohibited practice when it unilaterally imposed contractual terms, because it “willfully refused to meet and confer in good faith” regarding mandatorily negotiable conditions of employment. The PERB held that “willfully” under PEERA is to be construed in accordance with its ordinary meaning, and that an action is willful if it “was intentional, voluntary or deliberate as opposed to accidental or involuntary, that it was taken in an unreasoningly obstinate manner or with reckless indifference or disregard for the natural consequences thereof, or that it was done with wrongful intent.” Thus, the ALJ’s conclusion that an action is only willful where there is evidence of anti-union animus — and that because there was no anti-union animus here, the district actions were not willful — was in error.
Third, the PERB held that as PEERA requires parties to exhaust statutory impasse procedures before taking unilateral action, and as any unilateral actions taken after the exhaustion of impasse procedures must derive from the issues on which impasse is conducted, a failure to observe and comply with these requirements is indicative of bad faith. Here, the record evidence demonstrated that the parties reached tentative agreement on all non-compensation issues in which they had negotiated and did not negotiate the issue of volunteer or reserve fire fighters; it was further undisputed that the only issue taken to statutory impasse was compensation. Thus, compensation was the only issue on which the district could act unilaterally upon exhaustion of the impasse procedures. As the PERB noted, to agree with the ALJ would “render statutory procedures for meet and confer pragmatically useless” because PEERA would then require employee bargaining reps to take all negotiated issues to impasse where any one issue was disputed and would frustrate PEERA’s purposes.
In addition to dismissing and setting aside the initial order, the PERB ordered the district to post a copy of the final order in a conspicuous location at each duty station where members of the bargaining unit are represented by Local 2612 for a period of not less than 30 days.
The order is now subject to review in a district court in accordance with K.S.A. § 77-601, et seq., and any petition for review must be filed within 30 days of service of the final order (which occurred on December 15, 2020). There is also a possibility that the district could file a motion for reconsideration. However, given the time that has elapsed in this matter, we are hopeful that the district will no longer challenge the decision and will post notice as described in the order.
Local 3623 v. City of Ocoee, Florida
This matter involves an Unfair Labor Practice (ULP) charge filed against the City of Ocoee, Florida, in response to the termination of IAFF 3623 Local President Allen Savoie for his union activities. Allen Savoie was hired by the Ocoee Fire Department (OFD) in October 2018. He joined IAFF Local 3623 in January 2019. Approximately four months after joining Local 3623, Savoie began researching the city’s fire fighters’ pension system in order to assist the local in negotiations with the city. After meeting with the city’s pension board representative, Savoie learned that when there is an impasse regarding excess money in the fire fighters’ pension trust, it must be distributed between the city and the pension. Mr. Savoie continued his research into the pension trust issue and compiled his research into a report for the local, which sent the report to the Florida Department of Management Services (FDMS) on August 20, 2019. FDMS informed the local and the city that the excess pension trust funds were already distributed and the local and city would have to resolve their issues amongst themselves.
On August 23, 2019, the local elected Savoie as its president. That same day, while President Savoie was on duty and beginning his scheduled six-month skills probationary evaluation, the fire chief called him into a meeting with his direct supervisor and battalion chief. The chief terminated President Savoie because he allegedly did not successfully complete his probationary period. After reviewing the termination letter, President Savoie asked the chief if he had anything to add to the letter and the chief declined to do so. Prior to his termination, President Savoie did not receive any disciplinary actions or feedback that his performance did not meet expectations. The local filed an Unfair Labor Practice charge against the city.
After the original settlement was rejected by the city commission in September 2020, the parties were able to settle the matter for $97,500, which includes $60,000 in backpay and compensatory damages to Local 3623 President Allen Savoie and includes $37,500 in reimbursement of the attorneys’ fees and costs incurred by the IAFF in this action.
In addition, President Savoie will use part of the backpay award to repay the IAFF Justice Fund disbursement he received. As President Savoie no longer wishes to be reinstated at the city of Ocoee, the settlement permits him to voluntarily resign and receive a neutral reference. Finally, in Florida PERC cases, attorneys’ fees and costs are rare and generally not awarded, and are only permitted in the rare circumstances that the union can prove that the city knew that the specific actions it was taking were illegal at the time the actions actually took place. This is a very high standard to meet.
President Savoie was very grateful for the IAFF’s assistance. He intends to continue to serve as local president, but as he no longer seeks reinstatement, he intends to transition out of his leadership role and get other local union leaders up to speed to take over.
Guardian Policy Cases in Canada
Guardian Policy cases handled by IAFF Legal Counsel Sean McManus in Canada are as follows:
Local 447, St. Thomas, Ontario
This Guardian Policy case settled on favorable terms to Local 447 and Local 447 President Warren Scott. In 2013, President Scott met with a member in his capacity as president to discuss ongoing work issues. At the end of the meeting, the member indicated that he did not want the local to take any further steps. In 2017, the member filed a harassment complaint against certain employees, including members. The employer investigated and found that there was no merit to the complaint. During the investigation, the employer determined that President Scott had an obligation to report the results of his meeting with the member back in 2013 as President Scott is a fire department officer. The employer issued him a letter which also directed him to attend refresher training. The letter was grieved as disciplinary in nature. Among other arguments, the local planned to argue at arbitration that the meeting with the member was a privileged conversation in the context of providing union representation.
In advance of the arbitration date, the parties agreed to engage in mediation with the assigned arbitrator. A settlement was achieved whereby the letter was identified as non-disciplinary, removed from Warren Scott’s file, and no reference can be made to the letter as it relates to his employment. There were other provisions in the settlement that relate to the parties being committed to a harassment-free workplace and obligations under the governing law.
Local 3270, Saskatoon Ambulance, Saskatchewan
Richard Kenkel occupied the position of full-time advanced care paramedic with Dutchak Holdings, a private ambulance service in North Battleford, Saskatchewan. He was also a member of the executive of the Association (Secretary-Treasurer).
Mr. Kenkel was directly involved in the recent certification application of Dutchak Holdings (January 2018) as the key inside union organizer. The certification application was successful. The parties are presently in bargaining for the first collective agreement.
The association filed an unfair labor practice complaint under the legislation alleging that Mr. Kenkel was being unfairly targeted with excessive discipline, including being threatened with termination of employment. The application was based on the fact that Mr. Kenkel received a two-day suspension, a four-day suspension and, most recently, a request to sign a last-chance agreement stretching over three years. In attempting to justify the recent discipline, the employer attempted to rely on events dating back to 2016. All of this occurred against a backdrop of the employer knowing that Mr. Kenkel was taking a leading role within the association.
When Mr. Kenkel refused to sign the last chance agreement, he went on medical leave as a result of his stress. Dates for a labor board hearing were set, but it became apparent that this would be a protracted hearing. In the interim, Mr. Kenkel had secured another paramedic position with an ambulance service in Alberta. In advance of the board hearing, the parties agreed to engage in mediation with the assistance of the labor board. The parties were successful at reaching a settlement at mediation in November. The terms of the settlement are confidential, but Mr. Kenkel was pleased with the outcome as was the local.
Other Court Actions Pending Under the IAFF Guardian Policy include:
Hunter Smith v. City of Memphis, Tennessee (unilateral reduction in pension benefits); Garrett Hall v. Summit Fire District, Arizona (local representative discharged due to PTSD); Jay Cryer (IAFF Local 2269) v. City of Dyersburg, Tennessee (pension reductions for vested employees); Edward Montague and Local 1329 v. City of Arlington, Texas (discriminatory actions against union member due to referendum); Pulliam v. Local 975 and City of Austin, Texas (taxpayers’ suit challenging union release time in labor contract); IAFF Local F-147, Colts Neck, New Jersey (contracting out wildland functions; precedent-setting);
Cases Handled Under the International’s FLSA Enforcement Policy
The International has a longstanding FLSA overtime policy under which an affiliate can be given a $10,000 grant to pay for initial litigation expenditures in pursuing a court action to enforce the overtime rights of its members, with the IAFF General Counsel’s office serving as lead counsel. When these FLSA cases are favorably concluded through a court decision or a settlement, the $10,000 grants are reimbursed to the International and are used again for future overtime actions. Cased handled under this Policy include:
Jack Sorrells v. Cobb County, Georgia
This federal court action was brought against Cobb County, Georgia, under the International’s FLSA Enforcement Policy on behalf of recently retired Captain Jack Sorrells, a member of IAFF Local 2563. The County was improperly treating the captains as executive (managerial) or administrative employees exempt from the FLSA overtime protections.
These field captains are first responders on the frontline with their crews. They are nearly identically situated to the Fairfax County, Virginia, captains; those captains and Local 2068 members prevailed in their FLSA court action handled by General Counsel’s office. Consequently, the captains employed by Cobb County are entitled to FLSA overtime pay just like the members of their crew.
In the beginning of this case, Cobb County and its fire department attempted, in a coercive manner, to force the captains to acknowledge that they were exempt under the FLSA and, therefore, not entitled to overtime pay. The General Counsel’s office sent an advisory memorandum to Local 2563 President John Brady for distribution to the captains (union members and non-members) informing them that threats and demands to give up or limit their rights and claims to FLSA overtime pay are unlawful.
In this particular suit on behalf of plaintiff Jack Sorrels, a favorable settlement was achieved, and the district court approved that settlement on September 9, 2018. Under the settlement, member Sorrells recovered the maximum amount of three years of backpay, an equal amount of liquidated damages (for a total of about $7,000) and attorneys’ fees and litigation costs.
During settlement negotiations on behalf of plaintiff Sorrells, the county went directly to the other captains in the fire department and offered each of them a flat sum of $2,000 to settle their backpay and liquidated damages claims and effectively waive their rights to pursue their own claims in federal court. Such an attempted settlement and waiver is contrary to the FLSA and not enforceable. It is well established that settlements of claims under the FLSA require a court’s approval. Due to the unique importance of the substantive rights to minimum wage and overtime compensation, courts have held that employees cannot waive claims under the FLSA, and they cannot be settled without the supervision and approval of a federal court.
As noted, the instant case on behalf of retired Captain Jack Sorrells was settled, and the settlement was approved by the federal court on September 6, 2018. Going forward, all captains are receiving their FLSA overtime pay on a current basis — a positive result that would not have happened but for this union-supported suit on behalf of retired Captain Jack Sorrell.
On October 3, 2018, the General Counsel’s office sent the International a check in the amount of $10,000 fully reimbursing the IAFF for the grant pursuant to the International’s FLSA Enforcement Policy.
Jonathan McManus, et al. v. City of Ceres, California
This case involved violations of Local 3636 members’ FLSA right to overtime compensation arising from the City of Ceres’s failure to include a “cafeteria allowance” in their regular rate of pay. These were cash payments in lieu of medical insurance benefits, which under a federal appellate court decision of the Ninth Circuit Court of Appeals in Flores v. City of San Gabriel must be included in the regular rate of pay. By not including these payments in the regular rate of pay, the city short-changed these members’ overtime compensation.
On September 6, 2018, a federal district court approved a favorable settlement of this FLSA case, which provided for the full recovery of members’ backpay, liquidated damages equal to backpay and attorneys’ fees and litigation costs.
On September 25, 2018, the IAFF General Counsel’s office sent a check in the sum of $10,000 reimbursing the International for the grant approved to pursue this case under the International’s FLSA Enforcement Policy.
The officers and members of Local 3636 expressed their gratitude for the support provided by the IAFF.
Barry Links, et al. v. City of San Diego, California
This overtime pay case was pursued in court under the International’s FLSA Enforcement Policy on behalf of members of Local 145 who are employed as Helicopter Rescue Medics (HRMs). The city had been unlawfully treating the HRMs as fire fighters under the FLSA’s Section 207(k) limited overtime exception and, consequently, only paid them overtime for hours worked above 212 in a 28-day work period. However, because the HRMs performed medical care duties and do not have the actual responsibility to engage in fire suppression activities as required under Section 207(k), they deserved overtime compensation after working 40 hours in a workweek.
Under the Court-approved settlement, the six plaintiff HRMs recovered the maximum three years of backpay, plus equal liquidated damages in the total sum of $250,000. The City of San Diego is now complying with the FLSA and rightfully paying these IAFF members overtime compensation after they work 40 hours per seven-day workweek.
On August 1, 2018, the General Counsel sent a check in the amount of $10,000 to the International reimbursing the union for the grant that was approved in order to defray initial attorneys’ fees and litigation expenses incurred on behalf of these members of IAFF Local 145.
Lori Anello, et al. v. United States
This FLSA court action was initiated because members of Local F-298 (Coast Guard, Petaluma, CA) and Local F-161 (NIST, MD) were required to work without pay during the partial shutdown of the federal government lasting from December 24, 2018, through January 19, 2019. A complaint was filed on January 23, 2019, before the U.S. Court of Federal Claims, asserting both minimum wage and overtime pay claims and requesting a full award of liquidated damages. The case was assigned to Judge Patricia Campbell-Smith, who is overseeing all litigation related to the 2018 lapse in appropriations and ruled in favor of workers asserting similar FLSA claims resulting from the 2013 government shutdown.
The government moved to suspend proceedings pending the resolution of the 2013 government shutdown litigation, Martin et al. v. United States, No. 13-834C, but the court denied this motion on February 15, 2019.
The government moved to consolidate this case with the 12 other actions asserting FLSA claims arising out of the 2018 government shutdown. The court denied this motion on November 26, 2019.
On May 3, 2019, the government filed a motion to dismiss the complaint, which the plaintiffs – the members of the two locals – opposed. On November 26, 2019, the court requested supplemental briefing from both parties. The government submitted a supplemental brief on December 23, 2019, and the plaintiffs submitted a supplemental brief on January 24, 2020. We are now awaiting a decision.
In addition, the government submitted two motions for leave to file supplemental authority. First, the court granted the government’s motion to file as supplemental authority the decisions from the U.S. District Court for the District of Columbia in NTEU v. Trump, Case No. 19-cv-50, and Hardy v. Trump, Case No.19-cv-5, 2020 U.S. Dist. LEXIS 45353 (D.D.C. Mar.16, 2020). We had opposed the government’s motion, as the district court was not presented with any of the same legal issues as are before the court in this case. On April 27, 2020, the court requested supplemental briefing as to the weight the court should give to this case in deciding the government’s pending motion to dismiss.
Second, the government requested to file as supplemental authority the Supreme Court’s recent decision in Maine Community Health Options v. United States, 590 U.S. ____, 2020 U.S. Dist. LEXIS 2530 (Apr. 27, 2020). In this case, the Supreme Court held that the government can incur statutory payment obligations regardless of the availability of an appropriation. We submitted a response on May 14, 2020, urging the court to accept the decision as supplemental authority in support of the plaintiffs and rejecting the government’s allegations as to the opinion’s relevance. The court granted the government’s request on June 9, 2020, and requested that the parties submit a supplemental briefing explaining the relevance of the Maine Community Health Options decision to the court’s consideration of the government’s motion to dismiss. We submitted a supplemental brief on July 6, 2020.
Gary Jacobs, et al. v. Belmont Fire Protection District/City of Belmont, California
This overtime case was pursued under the IAFF’s FLSA Enforcement Policy on behalf of 24 Local 2400 members formerly employed by the Belmont Fire Protection District/City of Belmont. The district violated the FLSA by unlawfully omitting health-in-lieu and holiday-in-lieu benefits from the regular rate used to calculate the fire fighters’ overtime. Although the employer was clearly required to include both payments in the regular rate under 9th Circuit caselaw, it failed to do so. After the local alerted the district to the violation, it spent two years attempting to negotiate a resolution to the dispute. The parties dispute hinged on the proper divisor to use when factoring the payments into the fire fighters’ regular rates of pay. While the local advocated for a regularly scheduled hours divisor, the district insisted on an all hours worked divisor, which would substantially lower the amounts due. The district used a regularly scheduled hours divisor to factor all other incentive payments. The complaint was filed in September 2018. In January 2019, the district shuttered and the plaintiffs, still employed by the district, became employees of a successor, multi-jurisdictional fire department. Tellingly, the new department includes both payments in the regular rate and uses a regularly scheduled hours divisor.
The parties initially filed a proposed schedule for discovery with the court on January 22, 2019, and exchanged initial disclosures on that date. The parties agreed to stay discovery in the case pending mediation, which took place March 25, 2019. The mediator presented the parties with a proposal to settle the claims in the case for $446,000, which both parties accepted on March 29, 2019. The court approved the settlement as fair and reasonable on June 28, 2019. All the plaintiffs have since received their portion of the settlement amount. The settlement is an excellent result that got the plaintiffs the overtime owed to them plus some additional liquidated damages.
Robert Milie v. City of Savannah, Georgia
This FLSA case was brought on behalf of 14 plaintiff Local 574 members against the City of Savannah, Georgia, for wrongfully preventing the fire fighters from using their accrued FLSA compensatory time unless the leave is scheduled months in advance.
Local 574 reported that members are being denied their requests to use their comp time, or intimidated or coerced in not even requesting it, as it would cause an overtime expense to assign another fire fighter to replace the member who would be off-duty using earned comp time. Indeed, there appeared to be a retaliatory approach in the fire department where it was generally understood that even submitting a comp leave request that would necessitate the payment of overtime to a replacement fire fighter would impact a potential promotion or career. These practices are also contrary to the protections of the FLSA and applicable regulations of the U.S. Department of Labor.
The court complaint was filed on May 18, 2018, alleging that the city violated the FLSA when it discouraged or prohibited employees from taking compensatory time when requested, or deterred employees from requesting to use compensatory time. During discovery, the city’s then fire chief testified that he would not grant any requests to use compensatory time if it would incur any additional overtime – a clear violation of the FLSA. Repeatedly, the city’s witnesses confirmed that, if a fire fighter wished to use compensatory time, the fire fighter could only use it during their leave slots, selected the year before. Defendant deposed all 14 plaintiffs.
After discovery closed in March 2019, before the parties filed for summary judgment, defendant reached out regarding settlement. Although defendant had refused to engage in meaningful settlement negotiations after the case was filed, the post-discovery negotiations proved fruitful. The parties agreed on a settlement that includes a new policy that will allow fire fighters to use compensatory time as long as they submit the request before the end of their prior shift and, further, to use comp time requested after the end of the fire fighter’s prior shift as long as there is a volunteer to cover the shift. The settlement also includes back pay and two shifts of overtime pay for each plaintiff to compensate them for comp time that they were unable to use, which is more than $1,000 for each plaintiff.
The parties were unable to reach an agreement on attorneys’ fees and asked the court to determine the amount of reasonable attorneys’ fees. The court approved the settlement as fair and reasonable on August 19, 2019.
Stan Smith v. City of Sand Springs, Oklahoma
This FLSA case involves the claim of Local 2173 member Stan Smith who was being improperly denied overtime wages for all hours worked in excess of 40 per week.
Stan Smith worked as the fire marshal for the City of Sand Springs for over 10 years. His shift was Monday through Friday, 8:00 a.m. to 5:00 p.m. with little-to-no lunch break. Thus, he performed up to 45 hours of work per week without overtime compensation for all hours worked in excess of 40. While the city listed Smith as a non-exempt hourly employee in the parties’ CBA, the city failed to pay him overtime for regularly working through his meal breaks with the knowledge of the fire chief and assistant fire chief.
A complaint was filed in federal Court claiming that Smith was being denied overtime pay in violation of the FLSA.
On December 27, 2017, the city retaliated against Stan Smith because of his protected activity of participating in this FLSA lawsuit. After the city refused to cease and desist this unlawful conduct, the court permitted the filing of an amended complaint to add a retaliation claim for conduct prohibited by the FLSA. The city then terminated Stan Smith for pretextual reasons. The court complaint has been further amended to challenge the discharge of Stan Smith as unlawful retaliation. IAFF General Counsel is aggressively pursuing full relief.
In April 2018, depositions were taken of the city’s human resources manager, the assistant city manager, the fire chief and the deputy fire chief. Discovery in this matter ended on June 18, 2018. Settlement efforts at that time were unsuccessful.
In an unusual move, the city filed counterclaims in the suit alleging that Smith owed the city money for performing personal work while on fire department time. On September 19, 2018, the court granted Stan Smith’s motion to dismiss the city’s counterclaims against him.
The court also granted his motion in limine, which requested that reference to the city’s counterclaims be excluded from the eventual trial.
On July 2, 2019, the court denied pending motions for summary judgment, finding that a jury must decide Smith’s claim that the city terminated his employment in retaliation for his filing an FLSA complaint, and holding that Smith “satisfied his prima facie burden and has produced sufficient evidence for a jury to consider whether defendant’s proffered reasons for its actions are pretextual” and that he “raised numerous issues that a reasonable jury could determine support a finding that defendant’s stated reasons for its actions are pretextual.”
The day the decision was issued, the city expressed desire to resolve this case through settlement, and we ultimately reached an excellent settlement agreement on Smith’s behalf. The agreement provides that the city would pay $46,500 directly into Smith’s pension, which is equivalent to the back pay owed as a result of his termination, less offsets. This amount would be paid directly to his pension as a reimbursement so that he could accrue interest. Additionally, Smith would be reinstated to his position with all references to the termination removed from his personnel file effective January 31, 2020. At that time, he would retire, and the city would make all back employer and employee share pension contributions from the date of his termination through January 31, 2020, amounting to $35,661.08. This settlement puts Smith in the situation he would have been in, from a pension perspective, if he had worked through January 2020.
In addition, the court entered a judgment for attorneys’ fees and expenses in the amount of $247,500, which was submitted to the county for processing on August 26, 2019.
Matthew Turner, et al. v. City of Flagstaff, Arizona
In this case, pursued under the International’s FLSA Enforcement Policy, the members of Local 1505 claimed that the City of Flagstaff had failed to include certain premium pay elements in their regular rate of pay for the purpose of calculating their overtime compensation. Those pay elements include Technical Rescue Team premiums, Haz-Mat premiums, Arson/Investigators premiums, SWAT premiums and Tactical Medic premiums. When that FLSA violation occurs, the fire fighters are short-changed on their overtime pay. In addition, the city delayed making overtime payments to the members, sometimes many weeks or months after the work period in which the overtime hours were worked.
The city agreed to settle the case paying full backpay, liquidated damages and reasonable attorneys’ fees based on an agreed calculation methodology. On August 26, 2019, the court approved the settlement agreement and the matter has been closed. This lawsuit resulted in full recovery of all outstanding back pay and full liquidated damages to all plaintiffs who participated. Importantly, it also forced the city to correct a longstanding error in its payroll system that had been shorting paychecks for years.
Local 3169, Garcia, et al. v. Marion County, Florida
This case involved Marion County, Florida’s ongoing misclassification of its captains as FLSA exempt, despite their primary job duty being that of first responders. We filed a complaint on September 18, 2019, and the county filed its answer on October 17, 2019.
On October 24, 2019, the county filed a “Motion to Disqualify” counsel for plaintiffs on a baseless assertion of conflict of interest, allegedly created by an opinion letter issued in 2010 that had been removed from the local’s files without authorization and in clear violation of the local’s attorney-client privilege. On November 8, 2019, the court denied the motion in full.
In accordance with the Middle District of Florida’s early discovery rules for FLSA cases, the parties conducted court-ordered pre-discovery settlement negotiations on February 13, 2020. The settlement negotiations were initially productive, and we reached a tentative agreement, including terms that would have awarded plaintiffs full back pay and liquidated damages for two years, plus attorneys’ fees.
However, on March 27, 2020, after we had effectively finalized the settlement agreement, counsel for the county reversed course and informed us that the county insisted on resolving bargaining over a Memorandum of Understanding concerning wages and overtime for plaintiffs’ bargaining unit before finalizing the settlement. Given the county’s refusal to resolve the case in a timely manner, we notified the court on June 8, 2020, that settlement negotiations had been unsuccessful and subsequently submitted a proposed scheduling order. The parties are currently engaged in discovery, which will close on June 7, 2021, with a jury trial set for the month of January 2022.
Kevin Cunningham, et al. v. Mission Support Alliance, LLC, Washington
This case was pursued under the IAFF’s FLSA Enforcement Policy on behalf of members of Local I-24, against their employer, Mission Support Alliance, LLC (“Company”). The company provides an array of services to the Hanford nuclear clean-up site in Hanford, Washington, pursuant to a contract with the Department of Energy. Centerra Group provides fire suppression and prevention services to the Hanford site. The company is a private employer and should, therefore, be compensating its non-exempt captains and fire fighters with overtime at 1.5 the regular rate for all hours worked over 40 in a week. The company is underpaying captains because it is failing to compensate them correctly for scheduled overtime hours and unscheduled overtime hours worked.
The schedule worked by members of Local I-24 results in them working either 48 hours (two 24-hour shifts) or 72 hours (three 24-hour shifts) per week. The employer compensates captains the same amount for scheduled hours each bi-weekly pay period. The employer determines this amount by using a time bank to either bank 16 hours in 72-hour weeks (bringing the total down to 56 hours) or to withdraw eight hours from the bank in 48-hour weeks (bringing the total up to 56 hours). In weeks in which captains work above the overtime threshold of 40 hours in a week, the company does not compensate the captains for any additional half time. Furthermore, when captains work unscheduled overtime hours above the 40-hour weekly threshold, the employer only compensates them at straight time rather than the required time and one-half.
The complaint in this matter was filed in Court on April 6, 2018.
The court issued an order on summary judgment on July 22, 2019. The court ruled that the platoon captain plaintiffs were non-exempt first responders. The court also awarded the plaintiffs liquidated damages, finding that the company had not met its burden to show that it acted reasonably and in good faith in treating the platoon captains as exempt. However, the court denied the plaintiffs a third year of damages, finding that the defendant had not acted willfully.
The court also ruled that damages could be appropriately calculated using the fluctuating workweek method of calculation. However, this portion of the order was complicated by the fact that the judge made clear factual findings incompatible with the fluctuating workweek method, primarily that the plaintiffs’ salaries were intended to compensate them for only scheduled hours.
Because the court ruled on all substantive issues other than damages, the parties jointly requested that the court vacate the trial dates and pre-trial deadlines so that the parties could brief the issues of damages owed to the plaintiffs as a result of the violation, and the court granted this request.
On February 6, 2020, Judge Peterson issued her decision on the methodology for calculating damages ruling in favor of the platoon captains. Judge Peterson confirmed that, in her original decision, the platoon captains’ salaries covered only scheduled hours of work. Therefore, she found that Mission Support Alliance owes the platoon captains half-time pay for scheduled overtime hours (e.g., those overtime hours inside the 48- or 72-hour scheduled workweek) and time and one-half pay for unscheduled overtime hours. In addition, Judge Peterson concluded that offsets for straight time overtime payments for unscheduled overtime hours should be applied on a weekly basis. In doing so, Judge Peterson rejected MSA’s arguments that the offsets should be applied on a cumulative or pay-period basis.
After exchanging damages calculations resulting from the February 6 decision, the parties engaged in serious settlement discussions and reached a settlement agreement, which provided the platoon captains with a total recovery of $1.7 million (composed of $800,914.35 in back pay, $447,212.45 liquidated damages and $451,873.20 in attorneys’ fees and costs). The agreement also provides for the employer to modify its overtime pay practices to, at least, bring it in compliance with the law, until the union and management can negotiate on how platoon captains will be paid prospectively. This agreement was approved by the judge in the U.S. District Court for the Eastern District of Washington on September 4, 2020, and the case was dismissed with prejudice. Under the terms of the settlement agreement, payments required under the settlement agreement were made in early October 2020.
Other pending FLSA cases being handled by the IAFF General Counsel’s Office include:
James Quinn, et al. v. City of Eaton, Ohio (misclassification of captains); Timothy Ormerod, et al. v. Prince George’s County, MD (failure to pay half-time overtime premium pay); Portsmouth, Virginia (failure to properly pay overtime compensation for unscheduled overtime in violation of FLSA and Virginia Gap Pay Act).
Cases Handled Under the IAFF Front Line Policy
Local 1249, Roswell, New Mexico
This case was instituted on behalf of several fire fighters who were severely injured when an explosion occurred in a city-owned warehouse while the employees were preparing fireworks for Roswell’s annual 4th of July fireworks show. The fire fighters who have requested to be involved include: Jeff Stroble, who unfortunately passed away on July 21, 2019; Buddy Nutt, who received extensive treatment at the IAFF Center for Excellence; and five other individuals who suffered burns and other injuries as a result of the explosion.
Roswell Fire Department (“RFD”) put on the city’s annual Fourth of July fireworks display for a number of years, despite regular complaints from the fire fighters that the task is unsafe and outside of their scope of duties. In 2018, finally acceding to the fire fighters’ concerns, the city hired an outside company to perform the fireworks show. However, after public complaints about the quality of that show, the city once again tasked the RFD with putting on the annual display.
On June 5, 2019, the three members of RFD’s Fire Marshal’s Office, as well as the three-man crew assigned to RFD Engine 6 and the four-member crew of RFD Engine 4, were tasked with preparing the fireworks for the display. The city’s fireworks were distributed through Flying Phoenix, a Wyoming based fireworks distributor. When the fireworks arrive in Roswell, they are stored in a city-owned Conex box near a city-owned warehouse on the property of the Roswell airport.
On the day of the explosion, the fire fighters were attaching electric matches to the fireworks (e-matching) so that they could later be loaded into tubes for the display. The e-matching occurred in the city-owned warehouse, where the crews had set up a table for that purpose. The warehouse is used primarily for storage, including old fire marshal records and old station air-cleaning units. The fire fighters took some steps to minimize the risk of handling the fireworks – they left their radios and cell phones outside of the building and attempted to ensure that there was adequate moisture near other electrical sources to minimize static electricity.
The fire fighters had approximately 10 boxes of fireworks to e-match and were working on the final box at the time of the explosion. According to reports from those present, the assistant fire marshal was holding a firework when it sparked. He suffered minor burns to his hand and began running from the building. Fire Fighter Robert Bonham was also holding a firework in his hand and was burned. He dropped the firework and ran. Fire Fighter Stroble was at the far end of the building stacking boxes when the explosion began – he had no escape route when the boxes exploded.
Those on the scene report that there were multiple separate explosions in a short period, and that walls of the building were destroyed causing the roof to collapse. It has been reported that a portion of the roof landed on the air cleaners, which prevented Fire Fighter Stroble from being crushed.
Fire Fighters Stroble and Bonham were airlifted to a burn center in Lubbock, Texas, for treatment. After a series of surgeries (and many more to come), Fire Fighter Bonham was released from the hospital on June 30, 2019, to recover at home. Sadly, Fire Fighter Stroble died at the hospital in Lubbock on July 21, 2019.
Notices of claims under the New Mexico Tort Claims Act were submitted on August 28, 2019, to the City of Roswell, Chaves County and the State of New Mexico on behalf of seven individuals: Warren Aldrich; Kenneth Barncastle; Mark Brackeen; Austin Hensley; Jose Munoz; Buddy Nutt; and Reba Stroble, on behalf of herself and the estate of Jeff Stroble. Hoby Bonham submitted a notice of claim under the New Mexico Tort Claims Act before entering into a retainer agreement with MSE. With the help of Local President Ron Chambers, we have also submitted a series of public information requests to various state and federal agencies requesting documents related to the June 5, 2019, explosions.
We filed a complaint on June 19, 2019, before the New Mexico Fifth Judicial District Court, Chaves County, against the City of Roswell and Flying Phoenix Corporation (the fireworks distributor), alleging claims for negligence, strict liability, unavoidably unsafe products and punitive damages. At the time the complaint was filed, we also served discovery on the defendants.
On July 28, 2020, the City of Roswell filed a motion to dismiss and a motion to stay discovery, which we opposed. Briefing was completed on both motions on September 1, 2020. On September 1, 2020, the city filed a request for hearing on both motions. The court set a hearing date for September 29, 2020, but has not yet issued a decision.
Cases Handled under the IAFF Amicus Policy
Under the International’s Amicus Policy, the IAFF will file a brief (known as a “friend-of-the-court” brief) in cases that are likely to have a significant future impact on the affiliate involved in the matter, as well as other affiliates. Matters handled by the General Counsel’s office under this policy include:
Catherine Boling v. Public Employment Relations Board, California
On August 2, 2018, the California Supreme Court issued an excellent ruling in favor of public sector unions in a case in which the IAFF filed an amicus brief. The decision is very important in that it clarifies the meet-and-confer requirements of local governments under the Meyers-Milias-Brown Act (“MMBA”) and demonstrates that public officials cannot avoid the meet-and-confer obligation.
The mayor of San Diego had sponsored a private citizen’s initiative to eliminate pensions for new municipal employees and refused to meet and confer. He contended that, because he initiated a public referendum as a private citizen, there was no meet-and-confer duty under California law. The affected unions filed an unfair labor practice charge, and the California Public Employment Relations Board (“PERB”) found that there was a meet-confer duty. The city appealed, and a court of appeals reversed the PERB ruling, in part because it determined that PERB’s interpretations of law that was arguably outside its typical realm of expertise deserved no deference. The unions appealed the decision.
To support the unions’ petition before the California Supreme Court, the IAFF filed an amicus brief encouraging the California Supreme Court to reverse the court of appeals and find the appellate court applied the incorrect standard of review, that PERB’s interpretations of law are entitled to deference under a “clearly erroneous” standard. The amicus brief urged the California Supreme Court to find that the court of appeals was incorrect in its narrow reading of the meet-and-confer requirement of the MMBA, and reinstate PERB’s finding that the mayor committed an unfair labor practice when he refused to meet and confer with the unions. The plain language of the MMBA was emphasized, as well as its statutory purpose to foster communication between public employers and employees, something that would be frustrated by the court of appeals’ interpretation of the MMBA.
The California Supreme Court agreed on all points the unions and IAFF General Counsel raised. It found that PERB’s legal interpretations deserved deference under a “clearly erroneous” standard. It also found that the court of appeals’ unique interpretation of the MMBA was incorrect, based on the language of the MMBA and the stated purpose of the statute. The court determined that the mayor “plainly” had an obligation to meet and confer, and that PERB was correct in its finding that he violated that obligation. The California Supreme Court remanded the case to the court of appeals to address the appropriate remedy for the violation. PERB had ordered a make-whole remedy based on compensation lost as a result of the public referendum. It did not invalidate the results of the referendum, but that is relief that the court of appeals may consider on remand.
AmeriCare Medservices, Inc. v. City of Anaheim, et al.
On August 27, 2018, the U.S. Court of Appeals for the Ninth Circuit issued a decision in favor of the City of Anaheim and other appellees, consistent with the positions urged by the IAFF in the amicus brief submitted in support of appellees.
This lawsuit originated as a series of parallel anti-trust challenges by a private ambulance company, AmeriCare Medservices, Inc. (“AmeriCare”), to the so-called EMS “monopolies” held by local governments across California. At the trial court level, the numerous individual lawsuits were consolidated in one docket and, after the city and other defendants filed a joint motion to dismiss, the district court issued a favorable ruling, dismissing the consolidated case. AmeriCare appealed the dismissal to the Ninth Circuit, which affirmed the lower court’s dismissal of the private ambulance company’s anti-trust challenges. The memorandum opinion rejected AmeriCare’s potentially disruptive arguments as to local government immunity from anti-trust liability in the emergency services “market.”
First, the appellate court affirmed the principles of “state-action” immunity from anti-trust liability, which protects from liability municipalities acting to displace competition pursuant to state policy. The court concluded that the current EMS regime in California was such a policy that protected municipalities from liability while operating EMS monopolies.
Second, the court of appeals declined to adopt the “market-participant” exception to anti-trust immunity. The market-participant exception, would remove anti-trust immunity for localities that participate “not in a regulatory capacity but as a commercial participant in a given market.” AmeriCare, in an attempt to force municipalities to contract out their ambulance services, argued that emergency medical services was a “market” that the California localities engaged in as “commercial participants.” As argued in the IAFF’s amicus brief, AmeriCare’s contention on this issue defies common sense and would have immensely disruptive results for emergency service providers across the country. Fortunately, the Ninth Circuit declined to adopt AmeriCare’s position, explaining that a government entity is not a market participant when performing “integral operations in areas of traditional governmental functions.”
The AmeriCare case constitutes a significant victory for IAFF affiliates and first responders. AmeriCare’s urged “market participant” exception to anti-trust liability, if recognized by federal courts, could greatly interfere with local governments’ attempts to provide emergency services, allowing private companies to forcefully insert themselves into the emergency services “market.” Thwarting AmeriCare’s coordinated attack on the current EMS system in California will be an important deterrent to similar lawsuits in other jurisdictions in the future.
Local 3177, Buffalo Grove, Illinois
The IAFF prepared an amicus brief on behalf of Local 3177, in Village of Buffalo Grove v. Board of Trustees of the Buffalo Grove Firefighters Pension Fund and Kim Hauber, then pending before the 2nd District Court of Appeals in Illinois. The case involved the village’s attempt to deny line-of-duty pension benefits to a fire fighter that were awarded by the pension board. The appeal involved the important issue in Illinois of local governments endeavoring to disregard the findings of disability and pension boards.
Local 3177 member, Kevin Hauber died in January of 2018 after a long battle with colon cancer. His family believed that the cancer was duty-related and applied for a line-of-duty pension, under which Kim Hauber, Mr. Hauber’s widow would receive 100 percent of her late husband’s salary as an annuity, rather than the usual 75 percent under a non-line-of-duty pension.
In March 2018, the five-member board of trustees of the Buffalo Grove Firefighters’ Pension Fund (“Board”), which includes three current or former fire fighters and two members appointed by the village, voted to award the line-of-duty pension to Ms. Hauber.
The Village of Buffalo Grove (“Village”) filed a petition for administrative review against the board and Ms. Hauber in the Illinois Circuit Court of the Nineteenth Judicial District, seeking review of the board’s decision to award line-of-duty surviving spouse benefits pursuant to 4-114(i) of the Illinois Pension Code (40 ILCS 5/4-114(i)).
On February 5, 2019, the Circuit Court Judge, Judge Diane E. Winter, affirmed and upheld the board’s decision to award Mr. Hauber’s family the line-of-duty pension based on the strict standard of review as applied to administrative decisions. The village appealed Judge Winter’s decision to the Illinois Court of Appeals.
The local asked the IAFF to prepare an amicus brief on how colon cancer is treated by other jurisdictions when deciding to award line-of-duty benefits. The brief was submitted on June 27, 2019. The court issued an opinion on January 17, 2020, upholding the board’s decision to award full line-of-duty benefits to Ms. Hauber.
Marin County Association of Public Employees v. Employees Retirement Association, California
The General Counsel’s office was authorized to submit an IAFF amicus brief supporting Local 1775 and public employees in Marin County, California, as they appealed a California court of appeals decision adversely affecting public employee pensions.
On January 1, 2013, the Marin County Employees’ Retirement Association (“MCERA”) began excluding certain payments from pension calculations — such as payments for unused vacation or leave exceeding what can be accrued and cashed out for a 12-month period and payments for “additional services rendered outside of normal working hours,” among other things — for existing employees pursuant to the state’s Public Employees’ Pension Reform Act of 2013 (“PEPRA”). However, MCERA did not offset these reductions in benefits with comparable advantages, as is traditionally required under the well-established “California Rule.” An association of public employees and labor unions in Marin County thereafter filed suit against MCERA and the state of California, alleging that the reduction in benefits without an offset violated the employees’ vested rights under the contract cause of the California Constitution, which states that “[a] bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” Cal. Const. Art 1, Sec. 9.
Despite a number of decisions of the California Supreme Court holding that a vested contractual right to pension benefits accrues upon acceptance of employment and may not be reduced without impairing a contractual obligation of the public employer, and that any modifications to pension benefits must, therefore, be offset by comparable advantages, the court of appeals determined that the California Supreme Court has never mandated that comparable advantages be provided when pension benefits are modified. The court of appeals further found that the legislature is not foreclosed by the contract clause of the California Constitution from making modifications to pension benefits so long as the reductions do not destroy a public employee’s pension. Thus, the court of appeals held that there was no violation of the California Constitution in this case because MCERA’s implementation of PEPRA did not substantially impair public employees’ pension benefits.
On September 26, 2016, the public employees filed a petition for review with the California Supreme Court challenging the decision of the court of appeals, arguing that the decision “is a frontal assault on a doctrine so well established that it is known throughout the nation as the ‘California Rule’” and that it conflicts with 60 years of California Supreme Court precedent, including a decision by the same court of appeals division from 2015. In its petition, the employees requested that the state Supreme Court answer the following questions:
Does the contract clause of the California Constitution require that modifications of public employees’ pension benefits that result in disadvantages to employees must be accompanied by comparable new advantages?
Did Petitioners state a claim for impairment of vested pension rights in violation of the contract clause based on reductions to their pension benefits resulting from the Public Employees’ Pension Reform Act of 2013?
A number of local unions representing public employees in California, including IAFF local unions jointly submitted an amicus curiae letter in support of the petition for review.
On November 22, 2016, the petition was accepted by the Supreme Court of California. However, briefing is deferred pending the decision of the court of appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff’s Association et al. v. Alameda County Employees’ Retirement Association et al., A141913, or pending further order of the court. Oral argument was held in the Alameda County case on December 12, 2017, and an opinion was filed on January 8, 2018.
A number of decisions of the California Supreme Court holding that a vested contractual right to pension benefits accrues upon acceptance of employment and may not be reduced without impairing a contractual obligation of the public employer, and that modifications to pension benefits must therefore be offset by comparable advantages. The IAFF’s amicus brief will urge the state Supreme Court to protect these pension rights of IAFF members.
On March 28, 2018, the state Supreme Court filed an order again holding the case in abeyance, this time pending a decision in the additional case of Alameda County Deputy Sheriff’s Ass’n v. Alameda County Employees’ Retirement Ass’n, S247095, or pending further order of the court.
The Alameda County case was decided on July 30, 2020. On September 23, 2020, the Supreme Court dismissed its review of the Marin County case and remanded it back to the court of appeals in light of the July 30, 2020, decision in the Alameda County case.
Other Cases Handled by the General Counsel’s Office
The IAFF General Counsel’s office is also responsible for representing the International in protecting its rights and defending the International and its officers in the event allegations or claims are made against them in a court action or before a state or federal agency. Since the last Convention, those matters are as follows:
Lon Cyr v. City of Caribou et al. (Maine)
On May 23, 2019, Fire Fighter/Paramedic Lon Cyr filed a charge of discrimination with the Maine Human Rights Commission against the City of Caribou Maine, the Professional Fire Fighters of Maine (“PFFM”) and the IAFF. In the charge, he alleges that the city discriminated against him on the basis of disability by refusing to return him to work with a reasonable accommodation based on his reliance on a particular medical device. Mr. Cyr also alleges that his local PFFM representative struck an improper deal with the city to subject him to an unwarranted fit for duty examination after he was cleared for duty by his personal physicians.
Mr. Cyr included the IAFF as a respondent in the case, upon the mistaken belief that his PFFM representative, Michael Crouse, was acting as an agent of the IAFF when he represented Mr. Cyr while he was trying to return to work. However, Mr. Cyr’s charge misconstrues Mr. Crouse’s current relationship to the IAFF (he is a former, but not a current IAFF employee) and fails to account for the principle of “local control,” by which state and local IAFF affiliates manage their own affairs. The charge attributes Mr. Cyr’s belief that Mr. Crouse was an agent of the IAFF on Mr. Crouse’s use of an IAFF email address, which he retains as an emeritus 16th District Vice President and chief of staff. Mr. Crouse also serves as national coordinator of the IAFF Motorcycle Group on a contract basis, but this role is obviously unrelated to Mr. Cyr’s claims.
We originally filed an answer with MHRC on July 3, 2019, which was followed by an amended answer on September 11, 2019, following receipt of additional information and documents. In the answer, we requested dismissal of the IAFF as a defendant because no employee, officer or agent of the IAFF took any action that formed the basis for Mr. Cyr’s charge.
The commission inquired as to whether the parties would be amenable to mediation. However, counsel for Mr. Cyr responded on September 11, 2019, that he did not believe the matter was “ripe” for mediation. MHRC sent this matter for investigation and all parties participated in a fact-finding conference, during which the investigator had a chance to question witnesses in the presence of the other parties, on January 7, 2020. The investigator requested that Ron McGraw appear on behalf of the IAFF. Shortly thereafter, the MHRC investigator closed the investigation. On December 23, 2020, the investigator issued a recommendation that the claim against the IAFF be dismissed.
Guardian Policy Opinion Letters
When Guardian Policy applications are submitted by affiliates through their District Vice Presidents, the IAFF General Counsel’s office examines the facts and applicable law and makes appropriate recommendations. Such recommendations and opinion letters were submitted in the following matters:
Local 2294, Hillsborough County, FL (public confrontation between local vice president and chief); Local 2004, Irvington, NJ (fire fighters background checks); Local 5028, Morongo Valley Fire Department, CA (discipline of local leaders); Local 4345, Horry County, SC (severance of injured local officer); Local 360, Mishawaka, IN (demotion of local vice president); Local 4016, Conway, AR (non-promotion of union activist); Local 4596, Eloy, AZ (termination of local president); Local 1120, Bucyrus, OH (discharge of local vice president); Local F-33, Navy Region Southwest (lack of interoperability of communications); Local 2174, Naples, FL (terminated employee’s suit against city, local and local officers); Local 4575, Edgewater, FL (threatened retaliation against local president); Local 412, Dearborn, MI (retaliation against local members for political action); Local 1394, Scarsdale, NY (revocation of health benefits and discharge of local officer); Local 1517, Vernon, BC (disciplinary dismissal of local president); Local 341, Houston, TX (changes in past practices regarding dues deductions and union time); Local 2251, Broken Arrow, OK (alleged anti-union actions); Local 4047, Cherokee, GA (retaliation against local president for union activities); Local 4631, Rio Rico, AZ (termination of former local president); Local 3705, St. Francois, MO (discharge of local president); Local 3449, Tolleson, AZ (retaliation against local vice president); Local F-273. Ft Belvoir, VA (understaffing at Army base); Local 87, Jackson, MS (discipline of local president); Local 445, Norwood, OH (litigation regarding fiscal emergency and collective bargaining agreement); Local F-283, Fort Lewis, WA (suspension of local vice president); Local 5100, Vail, AZ (failure to promote local president); Local 289, Huntington, WV(“gag” order on local president); Local F-253, Fort Myer, VA (denial of official time for training); Local 3690, Sedona Verde, AZ (disciplinary suspension of local vice president); Local 4016, Conway, AR (Denial of Promotion for former Local President); Local 1366, Cedar Falls, IA (continued action by the city to promote PSO transferred into the fire department from police department to PSO supervisor position); Local 4047, Cherokee County, GA (termination of fire fighter); Local 5115, Crook County, OR (use of anti-union actions taken by the county); Local 1427, Kenner, LA (discharge of vice president); Local 1029, Southfield, MI (suspension of local president); Local 3623, Ocoee, FL (termination of local president in retaliation for the local’s investigation into the city’s use of tax money allocated for fire fighter pensions); Local 5173, Macclenny, FL (termination of local president and anti-union animus); Local 1102, Hialeah, FL (suspension of Eric Johnson); Local 3460, Hendersonville, TN (political activity); Local 464, St. Cloud, MN (city failed to promote several representatives due to their association with the union); Local 465, Oshawa, ON (discipline of local president for participating in union affairs); Local F-147, Colts Neck, NJ (contracting-out wildland functions); Local 527, Sudbury, ON (retaliation against union officer); Local 5160, Leland, NC (unlawful termination); Local 366, Frederick County, MD (potential lawsuit; binding arbitration ordinance); Local 868, East Point, GA (threats of discipline and termination); Local 2057, Orange County, FL (retaliation against union rep); Local 87, Jackson, MS (suspension of local president); Local 639: Parma, OH (discipline of local president); Local 2363, Charlottesville, VA (revoked promotion of local president).
Second Legal Opinion Letters
The International has a Second Legal Opinion Policy under which an affiliate can ask the IAFF for a second legal opinion letter from the General Counsel’s office. This independent opinion examines the facts, applicable law and the merits of a situation, enabling the affiliate to make a more informed decision as to whether it is worthwhile and cost-effective to go forward with possible litigation. Second legal opinion letters were prepared in the following matters:
Local 5137, Oak Bluff, MA (chief’s actions against forming a union); Local 624, San Antonio, TX (deduction of vacation hours from pay cycles); Local 3663, Demopolis, AL (promotional policies and practices); Local 4473, Bellows Falls, VT (Elimination of bargaining unit positions); Local 2963, Cookeville, TN (workplace harassment claim); Local 4309, Orange Beach, AL (disability claim under ADA); Local 493, Glendale, AZ (unilateral elimination of union release position); Local 41, Mason City, IA (local officer allegedly violating HIPPA); Local 287, Long Beach, NY (Unilateral unpaid furloughs); Local F-7, U.S. Military Academy (restoration of rights to injured fire fighter); Local 881, City of Barre, VT (potential demotion of deputy chief); Local F-88, Wright-Patterson Air Force Base (application of local supplemental agreement); Local 3878, Maricopa County, AZ (applicability of AZ Fair Wages and Healthy Families Act); Local 1375, Hollywood, FL (appealing PERB hearing officer’s decision); Federal Fire Fighters, 16th District (implications of recent executive orders); Local 3066 Prescott, AZ (applicability of AZ Fair Wages and Healthy Families Act); Local 1624, Sanford, ME (duty of fair representation regarding member’s demotion); Local 2665, Hazelwood, MO (withdrawal of city from fire district); Local 1374, Jefferson Parish, LA (denial of union representative before Civil Service Board); Local 2665, Missouri (impact of new statute on union rights and representation); Local 947, Greensboro, NC (local members’ candidacy for public office); Local 4309, Orange Beach, AL (promotions by fire chief); Local 2974, Lake Havasu, AZ (changes in promotion process); Local 3681, Georgetown, KY (employer contributions to retirement system); Local I-18, Grand Fork, ND (contractual issues raised by local); Local 4068, Pahrump, NV (potential transfer of jobs); Local 3284, Osceola, FL (pay rates under CBA and law); Local 43, Portland, OR (pay claims under labor contract); Local 1064, Jersey City, NJ (Delayed and short paychecks); Local 472, Lafayette, IN (“confined-to-home” sick leave policy); Local 42, Kansas City, MO (proposed policies for non-member bargaining unit employees); Local A-30, New Mexico Professional Fire Fighters (New Mexico PERA and recognizing pensionable hours); Local 421, Lansing, MI (on the merit of the city’s lawsuit against four former union members); Local 2882 Strongsville, OH (the non-promotion of a lieutenant and other promotional processes of recent years); Local 734, Baltimore City, MD (plaintiffs’ ability to pursue an interlocutory appeal); Local F-263, Federal Fire Fighters of Hawaii (proposed implementation of an updated instruction governing disciplinary and adverse actions); Local 1077, Claremore, OK (timeline for interest arbitration hearings pursuant to statute); Local 2499, Bristol, VA (annual leave cap reduction); Local 2974, Lake Havasu, AZ (legality of city’s actions on promotional process); Local 5049, Pelham, AL (education incentive pay); Local 1715, Cumberland, MD (shift trades under the FLSA); Local 143, Everett, MA (outside details); Local 4610, Prof. EMS Assoc. of New Jersey (religious observations and work schedules); Local 1784, Memphis, TN (analyzing FMLA Policy); Local 493, Phoenix, AZ (Peoria chapter) (analyzing the AZ Firefighter Rule Exceptions); District 16 (prohibition on off-duty employment for Navy fire fighters); Local 1945, Fort Collins, CO (Poudre Fire Authority – potential ADA discrimination); Local 4238, Wilson County, TN (discipline of shift commander); Local 299, Altoona, PA (Civil Service residency requirements); Local 1505, Flagstaff, AZ (minimum wage issues raised by shift trades); Local 2260, Mesa, AZ (Town of Gilbert military leave and pay policies); Local 4578, Coweta, GA (discrimination against a member with PTSD); Local 87, Jackson, MS (suspension of local president); Local 184, Hattiesburg, MS (termination of a member); New York, Grand Central Fire Brigade (organizing employees of MTA Metro-North Railroad).
Other Legal Opinion Letters
Local 2282, St. Augustine, FL (dementia traceable to exposure to filling station fire); Local 586, Bloomington, IN (calculation of overtime pay); Federal Fire Fighters – Air Force (agency duty to pay for required medical tests); Local 3743, Williston, ND (policy regarding unpaid on call time); Local 3556, El Dorado County, CA (pay offsets negating overtime claims); Local 1505, Flagstaff, AZ (FLSA regular rate issues); Local 73, St. Louis, MO (FLSA pay issues); Local 134, Atlanta, GA (compensatory time under FLSA); Local 2671, Moberly, MO (trading time under FLSA); Local 5160, Leland, NC (pay under shift trade policy); Local 332, Asheville, NC (battalion chiefs exempt from FLSA); Local 4629, Waterford, CT (city overtime pay practices); Local 4600, Chesterton, IN (reduction days and schedules); Local 3576, South Walton, FL (pay for strike team deployment); Local 1583, Biloxi, MS (compensability of training time); Local 332, Asheville, NC (FLSA-exempt battalion chiefs); Local 2563, Cobb County, GA (non-waiver of overtime rights); Local 574, Savannah, GA (miscalculation of overtime pay); Local 52, Meridian, MS (use of donated leave and holiday leave); Local 3177, Buffalo Grove, IL (Amicus-denial of duty-related pension benefit for a deceased member); Local 2449, Chesapeake, VA (FLSA exemption status of battalion chiefs); Local 4633, Currituck County, NC (Currituck County’s leave accrual policies); Local 5201, Eaton, OH (FLSA rights of captains and lieutenants); Local 4892, Park City, UT (FLSA sleep and training time); Local 3101 Nassau County, FL (FLSA opinion regarding single-role non-crossed trained paramedic); Local 4578, Coweta County, GA (misapplication of FLSA Section 207(k) to paramedic only employees); Local 580, Janesville, WI (compensatory time); Local 583, Beloit, WI (training time); Local 3293, Pampa, TX (pay practices violating the FLSA); Local 3501, Vacaville, CA (overtime payment using a dual-calculating method); Local 2928, Palm Beach County, FL (overtime payment calculating method under the FLSA); Local 3852, Alachua County, FL (recent practices regarding rescue lieutenants); Local 17, Davenport, IA (practice of hiring back members to cover shifts); Local 1249, Roswell, NM (death of and injuries to fire fighters on duty); Local 3995, Big Mountain, MT (legality of district practices of deducting eight hours of sleep time from 24-hour shift); Local 3169, Marion County, FL (FLSA rights of captains); Local 112, Los Angeles City, CA (exemption of captains in MFC); Local 2458, Winchester, IN (pay systems and schedule/shift changes); Local A-44, Virginia Professional Fire Fighters (collective bargaining for public sector employees in Virginia); Local 17, Davenport, IA (contractual review: overtime pay for training and conferences); Local 1014, Los Angeles County, CA (travel time pay for hazmat responders); Local 542, Amarillo, TX (shift splitting under the FLSA); Local 3991, Georgetown, TX (overtime compensation under FLSA); Local 2760, Franklin, WI (overtime compensation under FLSA); Local 5151, Van Alstyne, TX (violation of FLSA by excluding certification pay); Local 370, Muskegon, MI (compensability of off-duty classes and training under the FLSA and regular rate analysis); Local 5237, Berryhill, OK (overtime compensation under FLSA); Local 1538, Biloxi, MS (failing to provide longevity payments in accordance with Ordinance 15.1.14); Local 946, Laramie, WY (change to wage payment method under the FLSA); Local 643, Marquette, MI (7(k) overtime exemption); Local 117, Birmingham, AL (compensability of off duty classes or training); Local 3732, Frisco, TX (on-call policies under the FLSA); Local 3785, Pleasant Prairie, WI (incorrect calculation of overtime based on FLSA standards); Local 4787, Greenfield, IN (regular rate calculation and transition to a 21-day work period); Local 1384, Pineville, LA (minimum wage requirements under the FLSA); Local 2814, Vinita, OK (overtime practices under the FLSA); Local 244, Albuquerque, NM (battalion chief exemption issue); Local 4772, Foley, AL (Travel Time Between Fire Stations); Local 1384, Pineville, LA (overtime and staffing practices under FLSA); Local 1619, Prince George’s County, MD (failure to pay overtime premium pay); Local 2795, Athens Clarke County, GA (FLSA compliance); Local 3868, Logan, OH (failure to pay overtime premiums and proper regular rate); Local 539, Portsmouth, VA (Virginia Public Safety Code); Local 5245, Taos, NM (FLSA payment for training Time); Local 2710, Ashtabula, OH (FLSA compliance); Local 1596, Lawrence, KS (volunteer time).
IAFF Legal Department
Since the 2018 Convention, the General Counsel’s office has also been busy responding to legal assistance requests received by the IAFF Legal Department and reviewing affiliate Constitution and By-Laws that have been submitted for the General President’s approval. During this period, the General Counsel’s office has handled more than 1,700 requests for assistance related to substantive matters from our District Vice Presidents and (with the approval from the District Vice Presidents) our affiliate officers. During this same time period, the General Counsel’s office has reviewed approximately 600 local and state/provincial constitutions and by-laws for compliance with the IAFF Constitution and By-Laws.
Working With Other Union General Counsels
As a member of the AFL-CIO Union Lawyers Alliance Board of Directors, IAFF General Counsel Doug Steele has participated in regular strategy meetings of the General Counsels of major AFL-CIO affiliates and the Lawyers Advisory Panel.
Janus-Related Litigation in the Federal Courts
Litigation is proliferating in federal and state courts related to the Supreme Court’s recent decision in the Janus v. AFSCME Council 31 case. There are no reports that IAFF affiliates have been sued in court. The umbrella public sector unions, like AFSCME, SEIU, AFT, and NEA, have not been so lucky. There are 31 Janus-related lawsuits presently pending in the courts. These actions seek repayment of agency/fair share fees by individuals and classes and other relief. The suits are backed by well-financed, anti-union groups such as the Right-to-Work entity and the Freedom Foundation — and they are aimed at substantially reducing the membership and revenue of the unions.
The arguments advanced in these lawsuits have a variety of legal theories that go beyond claims simply for repayment of agency fees. In most of these cases, they claim that Janus applies retroactively requiring unions to return years of agency fees. In other cases, they contend that entire labor contracts should be abrogated if they contain an agency fee provision; that unions must get new authorization cards showing current, clear consent to membership and dues collection; and that non-members have the right to negotiate employment terms outside the exclusive representation structure established under state law. Several cases seek to extend Janus, on a class basis, to apply to all union members, alleging that all membership cards executed pre-Janus are invalid and may not be relied on by governmental employers who may only constitutionally deduct dues if a card was executed after the date of the Janus decision (June 27, 2018).
After the Supreme Court’s ruling in Janus, state Attorneys General in CA, CT, DC, IL, MA, MD, NM, NY, OR, PA, VT, and WA issued advisory opinions outlining the meaning and limits of the Janus decision. These opinions generally note that the Janus decision overturned four decades of established law and practice concerning the collection of fair share/agency fees from public sector workers who are not dues paying union members. They properly interpret the ruling in Janus as holding that compulsory fair share arrangements in the public sector violate the First Amendment free speech provisions of the U.S. Constitution. As a result, under Janus, in order for fair share/agency fees to be collected, a nonmember must first give “affirmative consent.” As explained in the state Attorneys Generals’ advisory opinions, the scope of the Janus holding should be viewed as limited. Specifically, these opinions indicate that the Janus ruling does not impact other rights and obligations of public sector employees, unions and employers under their particular state laws. The advisory opinions clarify that the Janus decision does not invalidate any arrangement to pay union dues between a union and its members or any dues check-off provision in collective bargaining agreements with employers. While these Attorneys Generals’ opinions are not binding on the courts, they can be cited as useful guidance by the unions being sued in these pending cases.
Comments to the FLRA
In late February 2020, on behalf of the IAFF, we submitted detailed comments to the Federal Labor Relations Authority (FLRA), advocating that the FLRA reject a request filed by the U.S. Department of Agriculture for a general statement of policy or guidance concerning agency-head review of expiring collective bargaining agreements that state they will remain in force until the parties reach new agreements. As we explained, the USDA failed to justify its request by mischaracterizing existing FLRA case law and failed, for the second time in recent months, to meet the guidance standards set forth by the FLRA in 5 C.F.R. § 2427.5. In addition, as we further demonstrated, adoption of the USDA’s proposed guidance would violate the FSLMRS, disrupt settled caselaw and undermine the statutory right of collective bargaining under the FSLMRS, which would create instability in federal labor-management relations. Finally, and importantly, we advocated that the FLRA reject the request as issuance of issuing this guidance risks causing significant harm to fire fighters and other public safety employees by permitting agencies to abrogate negotiated safety and personnel standards.