Firefighter Wins Back-Pay Award Against Employer And Union

Donald Berg was a Lieutenant with the Long Ridge, Connecticut Fire Company until his termination in 2008. After he was terminated, Berg filed unfair labor practice charges with the State Board of Labor Relations against the Fire Company and the Stamford Career Firefighters Association, his labor organization. Berg alleged that the Fire Company terminated him without just cause and also that the Association breached the duty of fair representation owed Berg.

The dispute arose out of a long and contentious relationship between Berg, the leadership of the Association, and other members of the Fire Company. Berg was at one time the Association vice president, and in that capacity filed an unfair labor practice complaint against the Department in 2003 for failing to pay retroactive wage increases.

The complaint was withdrawn by a vote of the membership out of a concern that it might result in layoffs, and in 2004, Peter Rustici resigned as Association president, implying that Berg’s actions prompted his resignation.

In 2007, Berg filed a safety complaint that resulted in monetary penalties against the Fire Company. During a Fire Company meeting, Berg publicly stated that he filed the OSHA complaint “because he wanted to be truthful, unlike Rustici,” who was present at the meeting.

After the meeting Rustici was heard making statements to others that witnesses described as “death threats” about Berg. Berg notified command staff that he believed his personal safety was in jeopardy and also accused Rustici of urinating in his boots. Berg requested that he and Rustici be assigned to different shifts and repeatedly demanded that Rustici be disciplined or terminated. The Fire Company denied Berg’s requests and advised Berg that if he felt threatened that he should call 911.

Also in 2007, the new Association president accused Berg of failing to respond to an emergency call and demanded Berg’s termination. Berg explained that he believed that the call had been handled and alleged that the complaint was a pretext for retaliation for filing the OSHA complaint. The Fire Company demoted Berg from lieutenant to firefighter and placed him on probation for two years. Berg appealed the demotion but the Association failed to file a grievance or seek arbitration.

In 2008, the Fire Company disciplined Berg for failing to respond to a second call. Berg was observed sitting in a vehicle outside the residence that was the location of the call, and later explained that he was communicating with dispatch to determine what assistance was required.

In August 2008, while driving a Fire Company vehicle on official business outside the Fire Company’s service area, Berg stopped for lunch without permission. The Chief warned Berg that if he did so again, he would be fired, and an argument between the two became so heated the police were called and Berg was escorted out of the building. The Fire Company terminated Berg a month later based upon his “erratic behavior,” his failure to respond to the two calls, and his unauthorized meal stop in the Fire Company vehicle.

In September 2008, high-ranking Association officials held a special meeting to decide whether to file a grievance to challenge Berg’s termination. The Chief, also an Association member, was present at the meeting, as was Rustici. The Association officials voted not to file a grievance on Berg’s behalf, with the Chief abstaining from the vote. Berg then filed unfair labor practice charges.

Labor boards typically avoid breach of contract claims except where resolution of a contract claim is required to resolve a claim of a breach of the duty of fair representation. In this case, the Board was required to determine two things: (1) Whether the “just cause” provision of the contract was breached by the Fire Company when it terminated Berg; and (2) whether the Association breached its duty of fair representation toward Berg.

For two reasons, the Board concluded that Berg was not terminated for just cause. First, the Board found that the Fire Company did not terminate Berg after any of the incidents leading up to the confrontation and in fact only warned him that he could be fired for a second incident of unauthorized use of a vehicle. Second, the Board found Berg’s testimony regarding the two emergency calls to be credible and that his actions were not unusual in firefighting.

The Board also found that the Association’s decision not to file a grievance was due to Berg’s contentious relationship with Rustici and Association officials and not based upon the merits of his grievance. Of particular concern to the Board was the presence of the Chief at the special meeting. The Board pointed out that the Association was aware that the Chief supported Berg’s termination, and concluded: “We believe the Association’s decision was tainted by ill will and hostility, as well as the intertwined relationship between the Association and the Fire Company.”

The Board ordered that Berg be reinstated, and ordered back pay for Berg to be paid equally by both the Fire Company and the Association.

In The Matter Of: Stamford Firefighters Association and Long Ridge Fire Co., Inc, and Donald Berg, MPP-29, 682 CT DOL, CSBLR (September, 2014).