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Firefighters accused of viewing porn, fights should get jobs back, board says

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By Doug Page and Margo Rutledge Kissell
Staff Writers Updated 10:45 PM Monday, November 2, 2009

BUTLER TWP., Montgomery County — The State Employment Relations Board has ordered two Butler Twp. firefighters reinstated with back pay, saying they were fired more for their union activities than any improper computer use.

"We've been battling this since 2008," Angela Rice, president of International Association of Fire Fighters Local 4491, said Monday, Nov. 2. Rice and Richard Nihizer, the local's vice president, are due back pay and benefits from Jan. 14, 2008, according to the Oct. 29 SERB decision.

The amount of back pay and benefits could not be determined Monday.

Rice and Nihizer were among 10 firefighters accused of viewing and/or downloading inappropriate material while on duty. In a decision this summer, an administrative law judge found that neither Rice nor Nihizer had done anything wrong and were fired, in part, because of their union activities.

Joe Flanagan, township administrator, said the township has yet to receive notification from SERB. "We'll have to see the decision and speak with our attorney before we can comment," he said.

Henry Arnett, a Columbus lawyer for the two firefighters, said his clients were "victims of retaliation because of their union activity."

The judge's decision on the firing of the firefighters hinged on the timing and severity of the punishment.

Of the 10 firefighters accused of viewing or downloading inappropriate material, union leaders Rice and Nihizer were the only full-time employees fired.

Judge Beth Jewell noted any misdeeds by the two were minor compared to others involved who were given suspensions. Jewell also took note that the firings came 10 days before the township and the union were to meet to iron out a contract. "Circumstantial evidence infers discriminatory motives and thus anti-union animus," she wrote after reviewing testimony this summer.

The State Employment Relations Board voted 3-0 Thursday, Oct. 29, to uphold Jewell's decision to reinstate Rice and Nihizer.

The three-member board administers Ohio's collective bargaining law for public employees. Its duties include investigating unfair labor practice complaints.

"It's a huge step," Nihizer said. "We would love to see the township accept that decision but we've seen too many appeals in the past to think this is over."

Three firefighters — Nihizer, Rice and part-time firefighter Ralph Bowman — were fired. Three others were suspended without pay — Lt. Brian Sowers and firefighter Jim Petry for 10 days, and firefighter John Wilt for six days.

Four others — Lt. Andrew Ehrhart and firefighters Warren Edmondson, Jason Holfinger and Ryan Havenar — resigned prior to disciplinary hearings.

Jewell pointed out that Sowers was given a 10-day suspension despite having viewed inappropriate material, allowed subordinates to view the material and then twice was dishonest in interviews.

Jewell noted that Sowers had dropped out of the union.

"The record compels the conclusion that (Rice's and Nihizer's union) activities were, at a minimum, a substantial part of the (township's) motive to discharge them," she wrote.

In addition, the judge pointed out the township had no policy on computer use nor any prohibition against the use of employees' personal computers while on duty.

The judge also wrote there was no evidence presented that Rice intentionally viewed any inappropriate material. The judge concluded the images seen by Nihizer, which were viewed by the judge, were not pornographic.

Contact this reporter at (937) 225-2290 or dpage@DaytonDailyNews.com.

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