Hogelin v. City of Columbus, S-06-641.

CourtSupreme Court of Nebraska
Citation274 Neb. 453,741 N.W.2d 617
Docket NumberNo. S-06-641.,S-06-641.
PartiesDavid HOGELIN and International Association of Firefighters Local No. 1575, Appellees, v. CITY OF COLUMBUS, Nebraska, a political subdivision, and Dean Hefti, in his official capacity as chief of the City of Columbus Fire Department, Appellants.
Decision Date16 November 2007

Mark A. Fahleson and David J.A. Bargen, of Rembolt, Ludtke, L.L.P, Lincoln, for appellants.

John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellees.



This case involves a dispute between the City of Columbus (the City) and its firefighters about whether training sessions mandated by the City would have resulted in a violation of state law regulating the hours firefighters can be required to work.1 The district court concluded that the scheduled sessions were unlawful and enjoined the City from requiring them. The issues presented in this appeal are whether the scheduled training sessions would have violated the law and whether the firefighters were entitled to injunctive relief.


At the time of trial, the City maintained a force of 12 full-time career firefighters and 72 volunteers. A shift for paid firefighters was 24 hours, and the fire department had three shifts that rotated on a 3-day cycle to provide full-time, 24-hour coverage. The City's description of the job of "Firefighter/Emergency Medical Technician" stated, in relevant part, that the job "require[d] knowledge and skill acquired only through specialized training" and that firefighters would be required to "successfully complete all required in-service training requirements."

Dean Hefti, the Columbus fire chief, explained that for their safety, emergency management responders need to be trained in awareness and operations with respect to hazardous materials. In addition, the City had received a homeland security grant for a hazardous materials response team. Hefti testified that the grant money was at risk unless the City assembled such a team. To that end, Hefti arranged mandatory hazardous materials training sessions. But Hefti said that while the grant "was there" the reason he made the training mandatory was "the safety of the firefighters and the responding personnel to industrial accidents, car accidents, et cetera" as well as public safety. Firefighters had attended off-shift training sessions before, but had done so at their own individual request, subject to Hefti's approval.

The training sessions at issue in this case were scheduled and conducted by the State Fire Marshal Training Division, and held at the Columbus Fire Department. Hefti explained that the State Fire Marshal was used because it met "NFPA code," and was available at no cost. The training sessions were scheduled for 7 p.m. on Thursday evenings: May 5, 12, and 26, 2005; June 23 and 30; and July 7, 14, 21, and 28. Hefti said that the State Fire Marshal did not agree to alternative schedules he had suggested.

Letters to Hefti from the State Fire Marshal Training Division explained that "[t]here must be at least 14 students in attendance at the course or it may be subject to cancellation. Please make sure your members attend these courses, since proper training is vital to every emergency response organization." The letters also encouraged Hefti to invite others, such as law enforcement and emergency services personnel, and included a form letter for that purpose.

Hefti sent a memorandum to all career personnel explaining the mandatory training schedule. David Hogelin, president of the firefighters' union, the International Association of Firefighters Local No. 1575 (the Union), objected on the firefighters' behalf. Hogelin's letter to Hefti explained that "[n]ine weeks of every Thursday night is a strain on the families of the fighters, who already spend every third day at the station." Hogelin suggested that the training could be accomplished more quickly and on duty time.

Hogelin's letter specifically cited state law as barring the mandatory training sessions. Section 35-302 provides that firefighters employed by cities having paid fire departments "shall not be required to remain on duty for periods of time which will aggregate in each month more than an average of sixty hours per week." Hogelin explained that including the additional training hours, Columbus firefighters would be required to work an average of 61.76 hours a week.

In response to Hogelin's letter, Hefti and the Columbus city administrator provided Hogelin with a memorandum concluding that the required sessions were legal under the collective bargaining agreement (CBA) between the Union and the City and that the sessions would remain mandatory. Section 35-302 provides that a firefighter's single-duty shift shall be 24 consecutive hours, followed by an off-duty period as necessary to comply with the statute, "unless by voluntary agreement between the city and the firefighter, any firefighter may be permitted to work an additional period of consecutive time," and may return to work after less than 24 hours off duty. The City's position was that the CBA was such a "voluntary agreement," because it provided in relevant part that

[a]ll management rights, functions, responsibilities, and authority not specifically limited by the express terms of this Agreement [or] State Statute ... are retained by the [City] and remain exclusively within the rights of the [City]. These rights, powers, and authority include, but are not limited to ... the scheduling of operations and the time to be worked ....

The CBA also provided that the normal work schedule would be "24 hours on, followed by 48 hours off, with the workday starting at 8 a.m." but that "[s]hould it be necessary in the judgment of the [City] to establish different work schedules or starting time, notice of such changes shall be given to the Union as far in advance as is reasonably possible." Hogelin averred, however, that as Union president, he had never discussed waiving any rights of Union members under § 35-302.

On May 10, 2005, Hogelin and the Union (hereinafter collectively the Union) filed a complaint in the district court against Hefti and the City (hereinafter collectively the City), seeking declaratory and injunctive relief and a motion for a temporary injunction. An evidentiary hearing on the motion was held on May 27 on the underlying legal issues and the firefighters' damages.

Hogelin averred that pursuant to a court-ordered visitation schedule, he was entitled to visitation with his son on every Thursday evening he was not scheduled to work and that the mandatory training would have the effect of depriving him of visitation. Ryan Loewnstein averred that he received a written reprimand after he failed to attend a May 5, 2005, training session, even though Hefti had already approved his request for leave to attend a wedding in North Carolina. Several other firefighters had been reprimanded for failing to attend the training sessions. Hefti also conceded that although fewer than 14 students attended the May 12 session, it had not been canceled.

The district court concluded that the mandatory training schedule would invade the firefighters' off-duty hours, protected by § 35-302. The court further concluded that the collective bargaining agreement did not override § 35-302. The court found that the firefighters would suffer irreparable harm, as Hefti had already reprimanded firefighters who had failed to attend training in their off-duty hours, and that "the threat of additional disciplinary measures for future nonattendance is real and genuine, not imaginary." The court entered a temporary injunction ordering Hefti and the City not to impose the mandatory hazardous materials training. On substantially the same evidence, on May 10, 2006, the court entered a permanent injunction to the same effect.


The City assigns that the court erred in granting relief to the Union because (1) the requirement that firefighters attend hazardous materials training does not violate § 35-302, (2) training is not "harm" entitling the Union to injunctive relief, and (3) even if the training is "harm," it is compensable by money damages.


An action for injunction sounds in equity. In an appeal of an equity action, an appellate court tries the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court.2

The meaning of a contract is a question of law, in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.3



We note, initially, that the City's brief does not take issue with the court's conclusion that the hazardous materials training requirement, if implemented, would place the firefighters' working hours in violation of the 60-hour-per-week limitation imposed by § 35-302. Instead, the City's argument that the requirement would not violate § 35-302 is premised entirely on the CBA, so our analysis of the City's first assignment of error is also limited to the effect of the CBA. Section 35-302 provides in full:

Firefighters employed in the fire departments of cities having paid fire departments shall not be required to remain on duty for periods of time which will aggregate in each month more than an average of sixty hours per week. Each single-duty shift shall consist of twenty-four consecutive hours and shall be followed by an off-duty period as necessary to assure compliance with the requirements of this section unless by voluntary agreement between the city and the firefighter, any firefighter may be permitted to work an additional period of consecutive time and may return to work after less than a twenty-four-hour off-duty period. Any firefighter may be assigned to work less than a...

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