INTERN. ASS'N OF FIREFIGHTERS, ETC. v. City of Sylacauga

• Citation: 436 F. Supp. 482
• Decision Date: 31 March 1977
• Docket Number: Civ. A. No. CA 76-G-0917-E.
• Parties: INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 2069, and Robert Watson, Individually and as President of Local 2069, Plaintiffs, v. CITY OF SYLACAUGA, Alabama, Mayor Ross Payton, Members of the City Council, William Parrett, Sherry Arnold, Rexie Lightsey, J. W. Smith, John Thomas, Members of the Civil Service Board, Charles Greer, Ernest Newman, Virginia Lewis, Chief P. A. Herd, Defendants.
• Court: U.S. District Court — Northern District of Alabama

436 F. Supp. 482

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 2069, and Robert Watson, Individually and as President of Local 2069, Plaintiffs, v. CITY OF SYLACAUGA, Alabama, Mayor Ross Payton, Members of the City Council, William Parrett, Sherry Arnold, Rexie Lightsey, J. W. Smith, John Thomas, Members of the Civil Service Board, Charles Greer, Ernest Newman, Virginia Lewis, Chief P. A. Herd, Defendants.

Civ. A. No. CA 76-G-0917-E.

United States District Court, N. D. Alabama, E. D.

March 31, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George C. Longshore, Cooper, Mitch & Crawford, Birmingham, Ala., for plaintiffs.

C. W. McKay, Jr., McKay & Campbell, Sylacauga, Ala., for Civil Service Bd., Charles Greer, Ernest Newman and Virginia Lewis.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GUIN, District Judge.

Plaintiff International Association of Firefighters, Local 2069 ("Union") brought this action under 42 U.S.C. § 1983 against the City of Sylacauga, Alabama ("City"); Mayor Ross Payton ("Mayor"); Members of the City Council of Sylacauga, William Parrett, Sherry Arnold, Rexie Lightsey, J. W. Smith, and John Thomas ("City Council"); Members of the Civil Service Board of Sylacauga, Charles Greer, Ernest Newman, and Virginia Lewis ("Civil Service Board"); and Fire Chief P. A. Herd for injunctive and declaratory relief and for damages, alleging violations by defendants of plaintiffs' rights under the first and fourteenth amendments of the Constitution of the United States and Act 428 of the Alabama Legislature, Regular Session, 1951, approved August 17, 1951.

The specific acts complained of are as follows:

1. Chief Herd's prohibition of firefighters from voicing their complaints and grievances, allegedly in violation of their due process rights.

2. The Civil Service Board's summary promotions of Donald Conville and Oliver White, not union members, without the competitive examination required by Act 428 of the Alabama Legislature, Regular Session, 1951, and the Rules promulgated thereunder.

3. The suspension of Clark Dennis, a union member at the time of his suspension, by Chief Herd and the Civil Service Board, by reason of his having voiced his grievances in violation of Chief Herd's orders.

4. Defendants' refusal to meet with Union spokesmen to discuss employment practices and conditions, and defendants' refusal to recognize said spokesmen as representatives of the Union's members.

A trial of the issues was held on December 12, 1976, before the court, sitting without a jury.

FINDINGS OF FACT

I.

1. Plaintiffs are the International Association of Firefighters, Local 2069, and an individual class representative, Robert Watson, who is himself a union member and a firefighter employed by the City of Sylacauga, Alabama, a defendant herein.

2. The numerosity requirement to the maintenance of a class action is patently not met in this case. However, since defendants failed to object to the class and the fact of class certification would not affect the relief granted, this action is treated by the court as if it were a class action.

3. The court further finds that the individual defendants' actions in promoting Donald Conville and Oliver White to the ranks of Lieutenant and Captain, respectively, in refusing to follow the mandates of Act 428, Alabama Legislature, Regular Session, 1951, approved August 17, 1951, and of the rules promulgated thereunder, in refusing to deal with plaintiffs in the manner required by Code of Ala., tit. 37, § 450(3), and in promulgating an amendment to Rule 1F, recited hereafter, to the Rules of the Civil Service Board, affect the rights of all members of the class to the same extent as they affect those of the individual class representative.

4. Federal question jurisdiction exists under 28 U.S.C. §§ 1331, 1343, and 2201. The complaint is brought under the first and fourteenth amendments and under 42 U.S.C. § 1983.

5. Defendant City of Sylacauga, Alabama, is a municipal corporation and is not a "person" within the meaning of 42 U.S.C. § 1983. Therefore, all § 1983 claims against this defendant must be dismissed. Jorden v. Metropolitan Utilities Dist., 498 F.2d 514 (8th Cir. 1974); Manos v. City of Green Bay, 372 F.Supp. 40 (E.D.Wis.1974). Those claims, however, brought against the City under the first and fourteenth amendments are for the consideration of the court.

II.

1. Clark Dennis was a firefighter for the Sylacauga Fire Department. He was hired on February 21, 1972, and was promoted to the rank of Lieutenant in April of the same year.

2. Clark Dennis wrote a "letter to the editor," published in a local newspaper, criticizing the city for its failure to purchase new firefighting equipment.

3. Chief Herd initiated, and the Civil Service Board upheld, the suspension of Dennis for five days without pay on account of said "letter to the editor," pursuant to a policy of Chief Herd expressed in the following notice posted on the bulletin board of the firehouse:

Any request relative to wage increase, working conditions, or any complaints relative to the Fire Department shall be submitted in writing to me and any other complaints affecting the operation of the Fire Department shall be submitted in writing to me, for any violation of this rule by any employee shall constitute insubordination and grounds for immediate dismissal.

Chief P. A. Herd.

4. At the time this action was commenced, Clark Dennis had resigned from the Fire Department and was no longer a member of plaintiff Union.

5. The action is properly to be dismissed as to all Clark Dennis claims for failure to bring it in the name of the real party in interest. Rule 17(a), Fed.R.Civ.P., 28 U.S. C.A.

III.

1. The Civil Service Board of Sylacauga is a state agency formed under Act 428, Alabama Legislature, Regular Session, 1951, approved August 17, 1951, to promulgate rules and to administer a civil service system for Sylacuaga, Alabama, in accordance with said Act.

The preamble to said Act provides that its purposes, in part, are:

to provide a civil service system governing the . . . promotion . . . of the employees of the City of Sylacauga, . . . providing for examination and appointment and promotion of members of the departments on a competitive merit basis . . ..

Section 5 of the Act provides:

The Civil Service Board may make rules and regulations relating to eligibility for promotion.

Section 17 of the Act provides:

No recommendation by any officer or official . . . shall be considered by any person concerned with any examination or appointment under this act, except as to the general moral character of the applicant.

Rule 8A of the Rules of the Civil Service Board of Sylacauga, promulgated under the Act, provides:

Vacancies in classes of positions . . . shall be filled, . . . by promotion following competitive tests.

Rule 8 provides:

When a vacancy is to be filled . . . the Personnel Board shall certify the names of the three ranking eligibles and the appointment shall be made therefrom . . .

2. The Civil Service Board has jurisdiction over the employment practices of the police and fire departments of the City of Sylacauga by virtue of the said Act.

3. There was testimony to the effect, and this court so finds, that many of the officers of the fire department were promoted by summary appointment and not by competitive examination as required by the above mentioned law and rules. Promotions within the police department, on the other hand, were customarily made in compliance with the law and rules.

4. On April 6, 1976, Chief Herd notified the Civil Service Board that he had assigned fireman Oliver White as Temporary Captain and fireman Donald Conville as Acting Lieutenant. On May 31, Chief Herd wrote a letter to the Civil Service Board recommending the promotion of Oliver White to Captain and Donald Conville to Lieutenant. The same day, at the regular meeting of the Civil Service Board, a motion was passed promoting White to Captain and Conville to Lieutenant, "based on the recommendation of Chief Herd . . ." These promotions were made without the benefit of competitive examinations.

5. The standard procedure, at least recently, for making promotions within the fire department has been that Chief Herd would recommend a man for a position and the Civil Service Board would appoint the man to the job based on Chief Herd's recommendation. This standard procedure and the procedure used to promote White and Conville are in violation of the Rules of the Civil Service Board and of the Act which the Civil Service Service Board was bound to administer.

IV.

Up until the time of trial, all defendants refused to recognize the Union representative as the collective bargaining agent of the Union's membership and to meet with said representative in his representative capacity to discuss employment practices and conditions, although requested to do so. It is the court's understanding, however, that since the time of trial all individual defendants have begun to meet and to deal with the Union's representative as a spokesman and are continuing to do so.

V.

Effective November 1, 1976, defendant Civil Service Board amended Rule 1F to read as follows:

The Board shall keep minutes of their meetings and records of all business transacted by them at each and every meeting. All records of the Board shall be held confidential by reason of public policy except as hereinafter provided: (1) All such minutes and records shall be open for inspection at all times by the City Clerk, Superintendents of Departments, Chief of Police, the Chief of the Fire Department, and any member of the governing body of the City; (2) an applicant shall have the right to review his examination papers within thirty (30) days after notice to him of the grading of his examination; (3) any employee shall have the right to inspect the service ratings of his class and grade who are employed under the same appointing authority; (4)

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