Firefighter Training Violates State Law

A Nebraska state statute provides that “firefighters shall not be required to remain on duty for periods of time which will aggregate in each month more than an average of 60 hours per week.” The City of Columbus, Nebraska has a force of 12 full-time paid firefighters and 72 volunteers. The City received a Homeland Security grant for a hazardous materials response team, and wanted to train all of its firefighters in hazardous materials.

Because of the schedule for the training, and the fact that the City was unwilling to relieve the firefighters of any of their normal 24-hour shifts, a number of firefighters ended up being scheduled to work more than 60-hour weeks. The firefighters’ labor organization, Local 1575 of the International Association of Fire Fighters, sought an injunction to stop the training. When a trial court agreed with the firefighters and ordered the City not to impose the mandatory hazardous materials training, the City appealed.

The Nebraska Supreme Court sided with Local 1575. The Court noted that the City did not “take issue with the trial court’s conclusion that the hazardous materials training requirement, if implemented, would place the firefighters’ working hours in violation of the 60-hours-per-week limitation imposed by the law.” Instead, the City argued that the law contained an exception allowing longer work hours if there was a “voluntary agreement” between the City and a firefighter, and that the management rights clause in its contract with Local 1575 constituted just such a voluntary agreement.

The Court did not agree. The Court found that there was “substantial authority for the proposition that some statutory rights, particularly those intended to serve an important public policy or guarantee the personal rights of individual workers, cannot be waived through collective bargaining.”

Even if the rights created by the state statute could be subject to a waiver through the collective bargaining agreement, the Court was convinced that the City’s contract “did not effect such a waiver. It is well settled that a waiver in a collective bargaining agreement must be established by clear and express contractual language. More succinctly, the waiver must be clear and unmistakable.

“The parties’ contract in this case does not demonstrate a clear and unmistakable waiver of the firefighters’ rights under the state law. There is no mention in the contract of the statute or its requirements, and silence in the bargaining agreement on such an issue does not amount to a waiver. The language relied upon by the City refers only in general terms to the City’s responsibility for establishing duty schedules, and broad general language is not sufficient to meet the level of clarity required to effect a waiver in the collective bargaining agreement.”

Hogelin v. City of Columbus, 274 Neb. 453 (Neb. 2007).

This article appears in the February 2008 issue