LOCAL 2263, ETC. v. City of Tupelo, Miss.

• Decision Date: 02 November 1977
• Docket Number: No. EC 77-185-K.,EC 77-185-K.
• Citation: 439 F. Supp. 1224
• Parties: LOCAL 2263, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, et al., Plaintiffs, v. The CITY OF TUPELO, MISSISSIPPI, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

439 F. Supp. 1224

LOCAL 2263, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, et al., Plaintiffs, v. The CITY OF TUPELO, MISSISSIPPI, et al., Defendants.

No. EC 77-185-K.

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

November 2, 1977.

Michael S. Wolly, Washington, D.C., Thomas D. Bourdeaux, Meridian, Miss., for plaintiffs.

Guy Mitchell, III, Tupelo, Miss., for defendants.

MEMORANDUM OF DECISION

KEADY, Chief Judge.

In this cause, Local 2263, International Association of Fire Fighters, AFL-CIO (Local Union), as a labor organization and on behalf of all members of the Local Union, and George Francis, the local Union's president, sue the City of Tupelo, its Mayor, Board of Aldermen, and Fire Chief (City Officials) pursuant to 42 U.S.C. § 1983 and invoking jurisdiction under 28 U.S.C. §§ 1343, 2201 and 2202, seeking declaratory and injunctive relief against the enforcement of resolutions adopted by the Mayor and Board of Aldermen prohibiting individuals occupying the positions of shift captains and station captains in the Tupelo Fire Department from belonging to a labor organization having in its membership rank and file fire fighters employed in the Tupelo Fire Department. Plaintiffs charge that these resolutions violate constitutionally protected rights of free association guaranteed by the First and Fourteenth Amendments to the United States Constitution to the members of the Local Union who are employed by the Tupelo Fire Department.

With the filing of the complaint on October 4, 1977, a temporary restraining order was sought. After notice, the court on October 14, 1977, conducted a brief hearing and issued a temporary restraining order against the City defendants enjoining enforcement of the aforesaid resolutions, and this injunctive order was continued in effect by agreement of the parties until October 31, or as soon thereafter as counsel could be heard. On October 25, City defendants filed their answer denying the charges, asserted that the resolutions under attack were not an impermissible infringement of First Amendment rights of individuals holding the positions of Fire Department Captains, and maintained that such individuals as supervisors owe a duty of undivided loyalty to the City of Tupelo and the resolutions were designed to avoid employees such as shift and station captains having to choose between opposing interests of the City as its employer and the Local Union as a member thereof.

Hearing on plaintiffs' application for preliminary injunction was presented to the court on November 1, and at the commencement thereof the court, by and with the consent of the parties, consolidated the final hearing on the merits with the application for a preliminary injunction. In addition to the evidence presented on the application for temporary restraining order, the court received oral and documentary evidence from the plaintiffs and the defendants. After hearing arguments of counsel, the court finds that the case is ripe for final decision and now makes findings of fact and conclusions of law in accordance with Rule 52(a), F.R.Civ.P.

(a) FINDINGS OF FACT

1. The Local Union was established at Tupelo on September 4, 1973, and membership therein was open to all employees in the Fire Department other than the Chief. The Union was established despite the announced opposition of the Mayor and Board of Aldermen for the necessity of any union in the Fire Department and they went on record that the City, in the exercise of its legal rights, would neither recognize the union nor bargain collectively with its representatives (Plt.Ex. 11). Public announcement of the City's position was made to the local citizenry. Notwithstanding, various employees in the Fire Department, including some having the rank of captain, joined the Union and participated in its activities. The failure of the City to recognize it or to bargain with it collectively has been a matter of some dissatisfaction to the Local Union. On September 18, 1974, the Union unanimously voted to picket City Hall, obviously because of its disenchantment with the treatment accorded to it by the City. Various problems in the Fire Department, unrelated to union activity, surfaced after 1974. These related to ineffective leadership afforded by Fire Chief Pannell and his assistant chiefs. The City was then requiring a 72-hour work week for all firemen to man the five fire stations consisting of headquarters Station No. 1 and 4 outlying stations in different parts of the City. Mayor Whitaker, now serving his second term, became concerned with what he regarded ineffective operations of the leadership in the Fire Department and conditions of employment. At some point in time the work was reduced from 72 hours to 56 hours per week.

2. On July 1, 1977, all except one of the aldermen were newly elected and took office along with Mayor Whitaker. Previously Pannell and his assistant chiefs had been retired. The Mayor and Board of Aldermen elected Curtis Sanders fire chief at the July meeting. Sanders had previously served as captain of fire prevention at Station No. 1 and before that as driver and fire fighter. In lieu of assistant chiefs, Sanders, with the approval of the City authorities, designated three shift captains, each of whom served directly under the Fire Chief for his 8-hour shift. A station captain was in charge of each of the 5 stations for his 8-hour shift, necessitating the employment of 15 station captains. Beside 3 shift captains and 15 station captains, the City employed 54 persons in the Fire Department comprised of 13 lieutenants, 15 sergeants and 26 drivers and fire fighters. As of this date, the City has decided to go on a 40-hour week effective November 9, 1977, which will increase the total rank and file membership below the grade of captain to 60 persons.

3. Chief Pannell, in 1973, posted rules and regulations designating that each station captain would be in charge of his station and of the men under his command; that the station captain would be in charge of all fires answered in his district, subject to coordination by the Assistant Chief in charge on that shift; and that the station captain would be authorized, if a fireman reported to work with a "hangover" to send him home without pay for one week, reporting that action to the Assistant Chief (Def.Ex. 1 at TRO hearing). These rules were well understood by all members of the fire force and were generally adhered to. When Sanders became Chief, he saw no necessity for having Pannell's rules remain posted and permitted their removal from the station house bulletin board since all fire employees were familiar with them. Each shift captain has city-wide jurisdiction and is over all station captains during his time on duty. The shift captain, where necessary, exercises supervision not only over the station captains in the maintenance of the station house, the fire fighting equipment and training, but also in the fighting of fires. The authority of the shift captain is subordinate only to that of the Fire Chief.

4. The duties and responsibilities of the station captain were the subject of conflicting testimony. Plaintiff Francis, the Union president and a lieutenant on the fire force, testified that the station captains had no real authority in the matter of hiring, firing, laying off, disciplining or suspending of an employee at the station house and, to his knowledge, the captain could not promote or recommend a man for promotion. According to Francis, a station captain could not transfer a man from one duty to another; that all firemen were trained and knew their job and that when they set out to fight a fire, no one was in charge. Francis further was of the opinion that the position of captain was an empty title without any real authority and existed solely because of one's experience and seniority to justify an increase in pay. Francis' testimony was, to a certain degree, corroborated by three station captains, Hoyle Williams, Billy Nichols and Roy Box. However, the testimony of the station captains must be viewed in the light of developments occurring since the institution of this suit. Each of them did acknowledge that the station captain was in charge of the station house during his shift and of the equipment and men there located. Each captain also testified that the first-in station captain at a fire is in charge of fighting the fire if it is in his territory and remains so until relieved by a superior, thus contradicting Francis' testimony that no one was in charge in fighting a fire. Williams, Nichols and Box further stated that since the discontinuance of Captain Brown as a training officer, each station captain was in charge of training rookie firemen employed at the station house and issued pre-assigned duties to each member under his command so that when fire service was needed, the men could work as an efficient team. These station captains, however, did say that they had not heretofore been vested with authority to hire, fire or promote men on the fire force, as those decisions were made by the Chief, and that they had not heretofore had responsibility to evaluate the job performance of each man at the station house. The City defendants, however, offered Chief Sanders, as well as Captain Davis, a shift captain, who had served previously as a station captain for 2½ years. Curtis and Sanders affirmed that in the absence of the Chief, Davis as station captain, had been called upon to serve as Acting Chief. Both the Chief and Captain Davis testified that Francis was in error in stating that no one was in charge of fighting a fire, and they agreed with the testimony of Williams, Nichols and Box that each station captain had charge of a station house, its equipment and the crew; that the training responsibilities for rookie firemen was assumed and carried out by the station captain and that the first station captain in at a fire was definitely in charge of...