New Orleans Fire Fighters Ass'n Local 632, AFL-CIO v. City of New Orleans

• Decision Date: 04 December 1967
• Docket Number: AFL-CIO and O,No. 2736,2736
• Citation: 204 So.2d 690
• Parties: NEW ORLEANS FIRE FIGHTERS ASSOCIATION LOCAL 632,liver A. Bayard v. CITY OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 690

204 So.2d 690

NEW ORLEANS FIRE FIGHTERS ASSOCIATION LOCAL 632, AFL-CIO and Oliver A. Bayard v. CITY OF NEW ORLEANS.

No. 2736.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 4, 1967.

Dodd, Hirsch, Barker & Meunier, Thomas J. Meunier, C. Paul Barker, New Orleans, for plaintiffs-appellees.

Alvin J. Liska, Beuker F. Amann, and Jackson P. McNeely, New Orleans, for defendant-appellant.

Before YARRUT, SAMUEL and HALL, JJ.

YARRUT, Judge.

Plaintiffs, the New Orleans Fore Fighters Association and its president, Oliver A. Bayard, allege the following:

(1) The Union entered into an oral contract with the Defendant, City of New Orleans, effective January 1, 1966, under which all members of the Department were to work 52 hours per week at a fixed monthly salary; four hours mandatory overtime at a premium rate; and such additional overtime, when offered to them by the City, as they chose to work over the mandatory 56 hours.

(2) On January 8, 1967, after a meeting of its Executive Committee, the Union sent a letter to Mayor Victor H. Schiro of the City of New Orleans, informing him it had been negotiating for improvements in working conditions since August, 1966 without avail and, therefore, intended to boycott voluntary overtime effective 8:00 A.M. January 15, 1967, unless twelve of its demands were met.

(3) On January 15, 1967, Thomas G. Heier, Chief Administrative Officer of the City, declared a state of emergency under LSA-R.S. 33:1994, which makes it mandatory for firemen to work in excess of 60 hours per week. At this time the firemen were also informed they would have to work 60 hours, at the regular monthly pay, and receive overtime pay only for work in excess of 60 hours per week; and would further be required to work as many hours over 60 per week as was necessary.

Plaintiffs urge this declaration of emergency and the rules promulgated thereunder, constituted a breach of contract. They prayed, inter alia, for an injunction against the City forbidding it to put the new work rules into effect, and for a declaratory judgment that there was no state of emergency at the present time. (Other relief prayed for is not an issue here.)

The Trial Judge enjoined the City, its officials and agents, from requiring any work week or overtime, contrary to the previously approved and scheduled work week of 52 hours a week plus four hours of mandatory overtime and voluntary overtime, in excess of 56 hours per week; the injunction to remain in effect until such time as both parties mutually agreed to any change, or until the Legislature of Louisiana, or the New Orleans City Council, should, by statute or ordinance, change the existing work week and overtime policy. He further decreed that there was not at present a true state of emergency but, should such emergency occur and be declared as such by the authorized governing body of the City, the injunction would be suspended during the existence of this emergency . From this judgment the City has appealed.

The City reurges and exception of no cause or right of action, and makes the following defenses on the merits: (1) that no agreement was ever entered into; (2) that if such a contract existed, it was null because it contained a potestative condition; (3) that it was null because it was never approved by the City's Department of Finance; (4) that if the contract was valid, the Union breached it when it threatened to boycott voluntary overtime; and (5) that a true emergency does exist.

We agree with the Trial Judge's reasons for overruling the exception of no cause or right of action, and adopt them as our own, viz:

'The City of New Orleans further contends, in its exception of no cause or right of action, that this suit is improperly brought, and that plaintiffs' complaints should be made to the Civil Service Commission. In support thereof, it relies on Louisiana Constitution Article 14, Section 15(I), which provides in part:

'There is vested in the State Civil Service Commission and in the appropriate City Civil Service Commissions for the several cities respectively the authority and power, after public notice and public hearing, to adopt, amend, repeal and enforce rules which shall have the effect of law, regulating employment, transfers, promotion, removal, qualifications, and other personnel matters and transactions, and employment conditions and disbursements to employees, and carrying out generally in the foregoing respects, and as may be otherwise necessary to that end, the provisions and purposes of Civil Service as herein provided, including but not by way of limitation, rules * * *

'(6) establishing and recommending hours of work, provided that the rules establishing the hours of work shall not become effective until approved by the governor or governing body of the City, as the case may be;

'(7) providing for attendance records, conditions for payment of salaries, * * *'

'From the above-quoted provision, it clearly appears that the governing body of the City Must approve and 'hours of work' which May be recommended by the Civil Service Commission. The Commission does not have the power to Finalize the hours of work. They may and should recommend. The final and only authority to set the hours lies...