NY Fire Union Dispute Hangs On Minimum Staffing

Feb. 21—OGDENSBURG, NY — The ongoing court battle between the city and its fire union has been whittled down to one simple argument: safety or job security?

Court documents filed in state Supreme Court in St. Lawrence County on Feb. 12 revealed the union withdrew five of its seven grievance claims alleging the city violated its collective bargaining agreement when seven fire department positions were eliminated last year.

The two remaining claims in the union's grievance and subsequent demand for arbitration reference the department's minimum shift staffing and how each of these shifts is structured, which are in alignment with the union's steadfast argument that five firefighters, rather than four, should be on duty at all times for safety reasons and safety reasons only.

"The reason that the five-man minimum exists is simply for safety," union President Jason T. Bouchard said Friday, adding that the minimum shift staffing provision of the union's contract with the city is to ensure the department has proper staffing to safely fight fires.

The union's demand for arbitration was filed with the city on Dec. 28 of last year after it grievance was denied on Christmas Eve. The grievance was filed Dec. 10, one day after City Council passed its 2021 budget that, among other things, reduced the fire department by seven positions — down to 20 firefighters from 27.

The city then filed suit against Ogdensburg Professional Firefighters, Local 1799, last month seeking a permanent stay of arbitration — an alternative form of dispute resolution used as a way to resolve issues outside the court system.

City Manager and Fire Chief Stephen P. Jellie, fellow city officials and the city's legal team have challenged the union's safety claim, saying the union's remaining grievance articles have nothing to do with the safety of firefighters, or the citizens of Ogdensburg. Rather, it's alleged that the department's minimum shift staffing and structure of these shifts has only been brought to the table for job security reasons.

"The recent narrative and campaign of fear that attempts to convince citizens that they should fear for their safety is false and it is not working," Mr. Jellie said Saturday.

Mr. Bouchard confirmed Friday that the union withdrew its grievance claim on replenishing the fire department to 24 members — the minimum number of firefighters the department must have per its contract — because it can be viewed as a job security clause.

The city has reduced the minimum shift structure from five firefighters to four — one captain and three firefighters. But the union would prefer to have no fewer than five firefighters on duty at all times, citing a federal firefighting standard commonly referred to as "two-in, two-out." But what is two-in, two-out, and how does it apply to the city fire department?

In January 1998, the U.S. Department of Labor's Occupational Safety and Health Administration issued an updated version of its respiratory protection standard. The regulation requires, among other things, that at least two firefighters enter a burning structure while two remain outside — hence the term "two-in, two-out."

The regulation, which went into effect April 8 of that year, states that the two firefighters inside the structure must have direct visual or voice contact with each other, as well as direct, voice or radio contact with the two firefighters outside.

The standard was set to assure the "two in" can monitor each other and assist with equipment failure, entrapment or other hazards, and the "two out" can monitor those in the structure, initiate a rescue mission or call for back-up if needed, according to a 1998 OHSA letter about the "two-in, two-out" standard.

Since its dispute with the city began at the end of last year, the union has cited this standard time and time again as its reason for needing five firefighters on duty at all times instead of four. To have any fewer than five is "dangerous and reckless," Mr. Bouchard said.

"It has nothing to do with job security," Mr. Bouchard said. "It's just safety."

Mr. Bouchard said five firefighters are needed because if an interior fire fight needs to be executed, someone also needs to take on the role of incident commander, as well as pump operator, outside the structure.

The "two-in, two-out" standard only applies when firefighters need to enter a structure for an interior attack, but the National Fire Protection Association's Standard 1710, which spells out standards for the organization and deployment of fire suppression operations, sets the minimum number of firefighters on an engine or truck at four.

Mr. Jellie said there's no requirement for five personnel in order to be an effective firefighting crew, and that a minimum of four on duty has already been "convincingly" identified, citing the same NFPA standard.

The "two-in, two-out" standard does not set a maximum number of firefighters allowed at a scene, nor how many "roles" there should be when battling a blaze, but there at least needs to be a commander and someone operating the truck, both of whom would be firefighters.

"If you have no water, you might as well not be there," Mr. Bouchard said, adding that if someone isn't outside manning the scene, "we are all now in danger, not just the people (inside) we're trying to rescue."

But Mr. Jellie said the number of times firefighters have to make entry is so "few and far between" that "most firefighters won't even see (that action)" during their careers.

The city's annual fire report for the 2020 calendar year shows that the city fire department responded to 1,520 calls, 35 of which were fires.

The same OSHA letter from 1998 goes on to state that one of the "two-out" firefighters can be assigned another role, such as incident commander. But Mr. Bouchard said only one of the "two out" firefighters can be given more than one role, such as incident commander. For example, if one of the "two out" is already serving additionally as incident commander, they can't also take on a third role of pump operator.

But Mr. Jellie has rebutted this argument, citing a question-and-answer document about the "two-in, two-out" standard.

One question posed is whether OSHA permits the two individuals outside the "hazard area" be engaged in other activities, such as incident command or fire apparatus operation — for example, pump or aerial operators.

In its answer, OSHA states it's required that one of the "two-out" be solely responsible for keeping track of the "two-in" personnel, and if necessary, initiate a firefighter rescue. The other "two-out" person is permitted to take on other roles, plural, such as incident commander, safety officer or equipment operator.

But, OSHA says, the other designated outside firefighter cannot be assigned tasks critical to the safety and health of any other employee working at the scene.

The answer further states that any task the outside firefighter, or firefighters, performs while in standby rescue status must not interfere with the responsibility to account for those in the hazard area. Whatever task, duty or function being performed by the standby firefighter must be work that can be abandoned, without placing any employee at additional risk, if a rescue or other assistance is needed.

Mr. Bouchard has said that without five firefighters at a scene, the crew would be forced to stand on the curb and watch the structure burn while waiting for mutual aid to arrive.

It's impossible to predict if and when a firefighter rescue would need to be initiated, so the "two-in, two-out" standard appears to be up for interpretation while also remaining a main point of contention between the city and fire union.

Firefighters would have to enter a burning structure if it's quicker to extinguish a blaze from inside, or if a life is in danger. But none of this applies and the "two-in, two-out" standard is abandoned only if it's believed that a life is in danger and a rescue can be completed.

"(Firefighters) risk everything to go save a life, in theory," Mr. Jellie said.

The city has also countered the "two-in, two-out" argument with the fact that mutual aid can be called from surrounding fire departments in Morristown, Heuvelton and Lisbon. Heuvelton is the closest department to Ogdensburg, but it's still seven miles away from the city limits with a 10-minute travel time. This is on top of the fact that these three fire departments are all volunteer forces, unlike Ogdensburg, so if mutual aid is called, firefighters from these departments would first have to be called from their jobs or home to the fire station to suit up for firefighting efforts before deploying to a scene.

The closest fully paid fire departments to Ogdensburg would be Fort Drum to the west and Plattsburgh to the east. The Plattsburgh department has had similar court battles with its local government in recent years. In St. Lawrence County, Massena and Potsdam only have paid fire department drivers.

Mr. Jellie said he has no plans of making Ogdensburg's fire force a volunteer one.

"I am on (the union's) side in that respect," Mr. Jellie said, but he doesn't think the department needs to grow back to its previous size. "I think 20 (firefighters) is generous."

Mr. Jellie has previously argued that the use of mutual aid is an appropriate alternative to keeping the fire department at 20 firefighters. But Mr. Bouchard said this reliance on mutual aid is abusing and misusing the mutual aid system.

"We're calling them if we have smoke in a basement and the furnace just blew up," Mr. Bouchard said, adding that before city firefighters even know what's going on, mutual aid units are being mobilized for a scene they most likely won't be needed at.

Of the 35 fire calls the city fire department responded to last year, five had mutual aid assistance, according to the city's annual fire report for 2020.

Seventeen of those fires were structures, such as homes, commercial spaces or other residences, three were vehicle fires and 15 were classified as outdoor or other.

The 35 fires the department fought in 2020 are 10 less than the 2019 annual fire report. For 2021 so far, the department has responded to 58 calls, three of which were fires. Two of those fires were homes and the third was a vehicle fire. Mutual aid has not been given at a fire scene in 2021 to date, according to the 2021 fire report.

These statistics are also part of Mr. Jellie's argument for having a minimum of four men on duty at all times rather than five. Of all the calls the fire department responds to, Mr. Jellie said, fires rank on the low end.

Of those 1,520 calls the department responded to in 2020, two were classified as ruptures or no fire, 878 were emergency medical services calls, 418 were "service calls" and 110 were false alarms.

Regardless of the low probability that the Ogdensburg Fire Department will respond to an emergency they aren't staffed to handle, firefighters feel they should be prepared to safely manage even the worst scenario.

The city and fire union have been at odds for more than two months since the passing of the city's 2021 budget.

The union filed suit against the city in state Supreme Court at the end of last year because of the staffing cuts. The union was requesting a preliminary injunction to forestall the five layoffs. But state Supreme Court Judge Mary M. Farley quickly denied the request.

When oral arguments for the case were heard about two weeks later, the union was requesting the reinstatement of the five laid-off firefighters. The city prevailed when Judge Farley issued another swift denial of the union's request to reinstate personnel.

The city quickly filed suit against the union requesting a permanent stay of arbitration.

The case remains pending in state Supreme Court as a judge has not yet issued a ruling.

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