HUNTINGTON – Past and current members of the Huntington Fire Department have filed a motion for sanctions against the city for failing to properly negotiate after claiming the city hasn't paid firefighters properly for holiday pay in more than five years.
The motion was filed April 22 in Cabell Circuit Court in a case originally filed in 2020. The latest filing says the city has continued to pay holiday pay in the “same manner that gave rise to the filing of the lawsuit.”
It says the case now has two components to resolve. The first is the payment to each firefighter for past lost wages, and the second is the “forward fix” that complies with statute ensuring the firefighters are accurately paid holiday pay.
Toriseva
According to the motion, the city and the firefighters of International Association of Fire Fighters (IAFF) Local 289 have a collective bargaining agreement in place that is set to expire June 30. Negotiations were directed to begin 90 days prior, but none have happened so far, according to the motion, which also says counsel for the city has said negotiations are stalled because of this lawsuit.
During an April 14 pre-trial hearing in this case, Cabell Circuit Judge Christopher Chiles ordered the parties to try to resolve the issues. But, the motion says the city would not mediate without the plaintiffs’ expert report being provided.
“The defendant certainly must have known the plaintiffs’ expert report is and was always going to be a money computation not a time computation,” the motion states.
Last week, the expert report was finalized and mediations took place in Huntington. On April 21, mediator James Lamp met with plaintiff attorneys Teresa Toriseva and Michael Kuhn of Toriseva Law as well as the president and five other members of IAFF Local 289. Then, Lamp went to discuss the matter with the city.
When Lamp returned to the plaintiffs, he said the city was not prepared to discuss the “forward fix” aspect of the case.
“This was the first time since the lawsuit was filed on August 5, 2020, that there was any indication the city would not discuss the ‘forward fix,’” the motion states. “The mediator indicated the city’s position now was that it is a CBA issue and nobody at the mediation on behalf of the city had authority to negotiate that issue. This is contrary to the previous assertions that the lawsuit was delaying the CBA.
“The mediator then indicated the city was not willing to pay cash for the past missed holiday pay and would discuss paying it only in the form of additional time off.”
Attorneys for the firefighters told Lamp these positions seemed to not be in the spirit of mediation and said they’d remain at the mediation until it was clear there was no hope of resolution. Lamp returned 30 minutes later repeating the same position of the city, according to the motion.
The motion says the city isn’t required to settle the case at mediation, but it required to participate meaningfully. The plaintiffs say the city did not hold up their end of the bargain.
It also says when one party failed to participate meaningfully, trial court rules provide the court with authority to act. The firefighters call the city’s conduct “egregious,” and list examples of how other cities took part in similar negotiations.
The firefighters say simply showing up for a mandatory mediation with no authority or intention to resolve the issues is a violation of state code.
They say Charleston Mayor Amy Goodwin personally participated in settlement negotiations. In Martinsburg, they say the mayor, assistant mayor, city manager and city finance director all took part in the talks. In Weirton, they say the city manager, city council members and others were present for talks. In Morgantown, they say the mayor, assistant mayor and city manager all took part even after four failed mediations.
The firefighters seek sanctions against the city as well as attorney fees for time spent preparing for, traveling to and participating in the mediation. They also want the city to reimburse the six firefighters for time lost from work to attend the talks. They also want the city to pay the full cost of the mediation.
They also want the date and location of the next mediation to be chosen before the scheduled May 11 trial date. And, they want Huntington’s mayor, city manager or other city representative to have full decision-making authority to examine and resolve issues, attend and fully participate in the mediation.
The original complaint, listed 83 members of Local 289 as plaintiffs. The City of Huntington is listed as the defendant.
“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” Toriseva, previously told The West Virginia Record when she filed similar lawsuits in other cities. “But there is a big problem in the way the holiday pay is being calculated for firefighters in numerous cities across West Virginia.
“The miscalculation of pay by municipalities ... is causing firefighters to be paid less than what is actually owed, year after year, for each firefighter. This lawsuit seeks lost wages and asks the court to stop the ongoing problem.”
Toriseva declined to comment on the latest motion, but Huntington City Attorney Scott Damron did.
"The City of Huntington is negotiating in good faith, and the motion has no merit," Damron told The Record. "We are certain that the mediator will confirm the city's good faith. It's disappointing that a party would use such inflammatory tactics."
Toriseva previously said she sent correspondence to Huntington City Manager Hank Dial in March 2020 indicating the city was wrongfully withholding holiday pay from the firefighters. Although discussion took place about resolving the matter, no movement toward resolution has occurred before the original complaint was filed.
"Firefighters are part of the core response to human tragedy in our community," Toriseva previously told The Record. "They help us all, without exception, in our times of greatest need.
“We must at least pay them properly and according to what the law requires."
According to the complaint, state code says every West Virginia firefighter, whether on duty or off duty, should get either time and a half pay or 24 hours paid time off equal to the shift for every legal holiday.
"The right cannot be waived," Toriseva previously told The Record. "The cities that have collective bargaining agreements must still comply with the pay enhancement set out in statute and the CBA is the basis for the 'regular rate of pay' which is paid at time and a half."
The complaint says that even though the firefighters may have been paid additional pay for each holiday whether they worked or not, such pay was “in addition to their regular pay.”
The plaintiffs allege they are owed wages for numerous holidays over a period of many years.
The plaintiffs accuse the city of negligent failure to properly pay statutory holiday premium and of failing to follow the West Virginia Wage Payment and Collection Act. They ask for the appointment of a special commissioner to calculate individual damages for each of the plaintiffs.
The firefighters seek compensatory damages as well as interest, attorney fees and court costs. They are being represented by Toriseva, Kuhn and Joshua Miller of Toriseva Law in Wheeling.
Cabell Circuit Court case number 20-C-245
