The Rights of Firefighters 4th Edition by Will Aitchison LRIS PUBLICATIONS PORTLAND, OREGON THE RIGHTS OF FIREFIGHTERS (Fourth Edition). Copyright 2010 by Will Aitchison. All rights reserved. Printed in the United States of America. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, please write Labor Relations Information System, 3021 N.E. Broadway, Portland, OR 97232-1810. Aitchison, William Bruce, 1951 – The Rights of Firefighters (Fourth Edition) ISBN 978-1880607-25-1 1. Law and Procedures 2. Constitutional Rights Cover design by Marc R. Fuller ACKNOWLEDGMENTS Recognizing the help of all those who assisted in the preparation of the fourth edition of this book is almost impossible. The following persons contributed greatly to the book coming into being, and are due great credit. Debbie Frields, without whom LRIS could not function, processed and proofread the book, and kept me on time writing it. Marc Fuller, LRIS’s computer genius, not only maintains our web page and our collective sense of humor, but also is responsi- ble for myriad tasks associated with the electronic version of this book and took what I thought to be an unseemly delight in collecting and sending me the series of 2,000- page files containing cases to review for this book. Mallory Maddox once again ably assisted in the unenviable task of checking the thousands of citations in the book. My best friend and wife, Val, both proofread the book and made many suggestions for its improvement. Special thanks are in order to Dan McNamara, a good friend and long-time speaker at LRIS who works without rest for the Detroit Firefighters Association; to Will Newton, who bargains ably under a tough state law in Florida; to Frank Lima in Los Angeles, for sticking up for principles when it wasn’t easy to do so; and to Jim Harrington in Washington for his tenacity. I’m also grateful to many individu- als throughout the country, among them union presidents, personnel directors, and attorneys for both management and labor, who have regularly provided otherwise- unreported decisions from around the country involving fire protection personnel matters, allowing us to keep abreast of recent developments. Last but certainly not least, special gratitude is owed to my clients, who have contributed some of the cases cited in this book, and who have provided a law prac- tice which is as interesting as it is challenging. ABOUT THE AUTHOR Will Aitchison is a Portland, Oregon attorney who has, over the course of his career, represented over 100 law enforcement and firefighter labor organizations in five western states. Aitchison graduated from the University of Oregon (Honors College) in 1973, and received his Doctor of Jurisprudence Degree from Georgetown University Law Center in Washington, D.C. in 1976. After two years of clerking for Chief Judge Herbert Schwab of the Oregon Court of Appeals, Aitchison entered private prac- tice and has been representing labor organizations since that time. In addition to his private practice, Aitchison has served as both an arbitrator and a pro tem dis- trict court judge, and has contributed numerous articles to various periodicals. Aitchison is the author of The FMLA: Understanding the Family & Medical Leave Act, Interest Arbitration (Second Edition), The FLSA – A User’s Manual (Fifth Edition), The Rights of Law Enforcement Officers (Sixth Edition), A Model Law Enforcement Contract: A Labor Perspective (Third Edition), and A Model Firefighter’s Contact: A Labor Perspective, all published by Labor Relations Information System. Aitchison has lectured on numerous occasions throughout the country on FLSA issues and topics concerning labor relations and personnel issues, and has served as an expert witness and consultant in a variety of employment matters. Aitchison resides in Portland, Oregon with his wife Valerie. He is the father of four sons, Michael, age 24, Matthew, age 23, and Alex and Luke, eight-year old twins. TABLE OF CONTENTS TABLE OF CONTENTS — i CHAPTER 1 INTRODUCTION 1 CHAPTER 2 COLLECTIVE BARGAINING 5 The General Structure Of Laws Governing Collective Bargaining For Firefighters. 6 The Exclusion Of Firefighters From Collective Bargaining Laws. 9 Eligibility For Inclusion In A Bargaining Unit Of Firefighters. 10 Supervisory Employees. 11 Managerial Employees. 11 Confidential Employees. 12 Examples Of The Scope Of A Bargaining Unit. 12 The Subjects Which Are Mandatorily Negotiable. 14 The Duty Of Fair Representation Owed By A Labor Organization To Its Members. 47 The Right Not To Be A Member Of A Labor Organization. 49 The Right To Strike. 50 Discrimination Based On Union Activity. 51 Notes 53 CHAPTER 3 DISCIPLINARY STANDARDS AND FIREFIGHTERS 61 Introduction. 62 Employees Not Covered By Collective Bargaining Agreements Or Civil Service Laws. 62 Employees Covered By Civil Service Laws. 62 The Appeal Of Discipline Where Firefighters Are Granted Job Protection Through A Collective Bargaining Agreement. 63 Particular Types Of Discipline And Discharge Cases. 66 Conduct Unbecoming. 66 Off-Duty Conduct. 68 Insubordination Incidents. 68 Summary Of Disciplinary Cases Involving Firefighters. 69 NOTES 95 ii — TABLE OF CONTENTS CHAPTER 4 PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 99 Introduction. 100 A Firefighter’s Right To Be Free From Compulsory Self- Incrimination – The Garrity Rule. 100 The Basic Requirements Of The Garrity Rule. 102 The Scope Of The Garrity Rule – When Does It Apply? 102 Illustrations Of Garrity Principles. 104 Reverse Garrity Warnings. 105 The Scope Of Immunity Under Garrity. 106 The Right To Representation During A Disciplinary Interview – Weingarten Rights. 108 The Role Of The Representative In Disciplinary Interviews. 111 Remedies For Weingarten Violations. 112 A Firefighter’s Procedural Due Process Rights. 113 How A Property Interest In A Firefighter’s Job Is Created. 113 How Property Rights Are Affected By Disciplinary And Non- Disciplinary Decisions. 114 How A Firefighter’s Liberty Interests Can Be Affected By Employment Decisions. 117 The Procedures Which Must Be Followed Once A Liberty Or Property Right Is Implicated. 118 “Pre-Deprivation” Or “Pre-Disciplinary” Procedures Where Property Rights Exist. 119 Enhanced Or Reduced Procedural Due Process Rights. 122 Post-Deprivation Procedures Where Property Rights Exist. 123 Procedures Necessary Where Liberty Rights Exist. 124 The Damages In Procedural Due Process Cases. 124 Substantive Due Process And Disciplinary Procedures. 125 The Exclusionary Rule In Disciplinary Cases. 125 A Firefighter’s Miranda Rights. 126 NOTES 127 CHAPTER 5 FIREFIGHTER BILLS OF RIGHTS 141 Introduction. 142 TABLE OF CONTENTS — iii Statutory Bills Of Rights. 142 NOTES 145 CHAPTER 6 A FIREFIGHTER’S RIGHT TO PRIVACY 147 The Right Not To Disclose Personal Matters. 148 Disclosure Of Financial Matters. 149 Disclosure Of Medical Information. 150 Disclosure Of Job-Related Information. 151 Drug Testing And Firefighters. 151 The Right To Be Let Alone And Restrictions On Activities While A Firefighter Is On Sick Leave. 157 The Right To Be Let Alone And A Firefighter’s Privacy In Offices, Lockers, Desks, And The Use Of The Employer’s Communication Systems. 158 The Right To Be Let Alone And A Firefighter’s Personal Appearance. 159 The Right To Engage In Off-Duty Employment. 161 The Right To Be Let Alone And Smoking. 161 The Constitutionality Of Residency Rules. 162 NOTES 164 CHAPTER 7 A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS 171 Public Employees And Free Speech. 172 Garcetti v. Ceballos And The On-Duty/Off-Duty Distinction – The Threshold Question For Whether Speech Is Protected. 172 The Employee Speaking As A Citizen – Core Principles. 173 The Employee Speaking As A Citizen – Speech Which Is Likely To Be Protected. 174 Criticism Of The Fire Department. 174 Discussion Of The Department’s Budget Or Staffing Levels. 175 Speech About Departmental Morale. 176 Speech About Political Issues. 176 Speech About Union Issues. 177 Speech About Alleged Discrimination. 178 Speech About Safety And Disability Matters. 178 Whistleblowing Speech. 178 iv — TABLE OF CONTENTS The Off-Duty Employee Speaking As A Citizen – Speech Which Is Not Likely To Be Protected. 180 Speech Which Is Knowingly Or Recklessly False. 180 Statements Made As An Extension Of A Personal Grievance Or Dispute. 180 Racially Derogatory Speech. 181 Speech Endorsing Services Related To The Job. 181 Profanity And Name Calling. 181 Speech That Is Disruptive Of Morale Or Operations. 181 The Employee Speaking As A Citizen – When Is Discipline Motivated By The Employee’s Speech? 183 The Employee Speaking As A Citizen – What Level Of Discipline Implicates The First Amendment? 184 A Public Employer’s Rules And Regulations Concerning Speech. 184 Prior Restraints On Speech And Regulations Requiring Approval Before Contact With The Media. 185 Content-Based Regulation Of Speech Is Likely To Be Unconstitutional. 186 The Right To Refrain From Speech. 187 Freedom Of Speech And The Internal Investigation Process. 187 Freedom Of Association. 187 Freedom Of Association And Membership In Organizations. 188 Freedom Of Association And Personal Relationships. 189 Notes 190 CHAPTER 8 THE RIGHT TO BRING CIVIL LAWSUITS 197 Introduction. 198 Negligence Lawsuits – The Firefighter’s Rule. 198 Exceptions To The Firefighter’s Rule. 200 Firefighters As Plaintiffs In Libel And Slander Lawsuits. 203 The “Malice” Standard In Defamation Cases. 203 The “Opinion” Rule In Defamation Cases. 204 The “Absolute Privilege” Bar To Defamation Actions Brought By Firefighters. 204 Damages In Defamation Cases. 205 TABLE OF CONTENTS — v Products Liability Lawsuits. 205 Lawsuits Against One’s Employer. 206 Lawsuits For Intentional Conduct. 206 Assault And Battery. 207 Malicious Prosecution And Abuse Of Process. 207 Intentional Infliction Of Emotional Distress – The Tort of “Outrage.” 208 Notes 210 CHAPTER 9 FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT 215 Introduction 216 “Hours Worked” Defined. 217 The 7(k) Exemption. 222 7(k) WORK PERIODS 224 The 7(k) Exemption And Emergency Medical Service Employees.