Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
An IAFF union president from Pennsylvania has been disciplined for asking other IAFF members not to volunteer during their off-duty hours in his jurisdiction.
Chambersburg Fire Department Captain Patrick Martin, President of Greater Chambersburg Area Paid Fire Fighters Association, IAFF 1813, was suspended without pay for 240 working hours for his October 26, 2011 letter. Download a copy of the letter: Letter-from-Greater-Chambersburg-Area-Paid-Fire-Fighters-Association
The letter is pretty self-explanatory and was sent in response to the Chambersburg Borough Council’s proposal to reorganize fire protection and reduce career staffing. Chambersburg Borough Council voted anonymously to discipline Martin by suspending him for 240 hours without pay for “conduct unbecoming of an officer.” Here’s more on the discipline.
The case raises two overlapping sets of concerns – First Amendment and collective bargaining. Each of these concerns raise some complex legal issues.
From the First Amendment perspective, if President Martin’s comments are found to involve a matter of public concern, and he was speaking as a private citizen (which it certainly appears he was since he was acting as a union president when he wrote the letter not as a spokesperson for the fire department), the discipline might have to be overturned (it’s a bit more complicated than that… a little thing called the Pickering balancing test… and a line of cases that say that speech that is otherwise protected cannot cause actual harm to the FD… but you get the idea).
The collective bargaining issue is even more complicated. Pennsylvania’s Public Employee Relations Act (PERA) makes it an unfair labor practice for an employer to interfere with the exercise of concerted activities by unions. Arguably President Martin was punished for engaging in a legitimate collective bargaining activity (ie. he was communicating with fellow IAFF members over a matter of mutual concern), in which case the state labor board could set aside the discipline.
However, The PERA also makes it an unfair labor practice for a union to encourage an employed person to “engage in a strike” or refuse to “perform services” … which arguably the letter did. Thus the PERA could rule against President Martin because he was engaged in an unprotected/illegal activity.
Between the two – the First Amendment would trump the collective bargaining issue – assuming President Martin wins. The First Amendment is a US Constitutional issue and even if sending the letter was an unfair labor practice, he could not be punished for exercising his First Amendment rights. If President Martin loses his First Amendment claim, the unfair labor practice charge could go either way… it depends upon one’s perspective on collective bargaining.
Any thoughts out there?
