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Firefighters union seeks standing in agreement between DOJ, city

Monday, June 16, 2014 by Michael Kanin

The union representing Austin firefighters filed a motion in U.S. District Court Friday seeking to intervene in the pending settlement between the City of Austin and the U.S. Department of Justice. Seeking a consent decree, the city and the Justice Department filed an agreement in federal court June 9 to settle allegations of race-based discrimination in the Austin Fire Department’s hiring procedures.


The Austin Firefighters Association filed the motion in order gain standing in the matter and have a voice in the proceedings. The presiding judge in the case will now rule on whether the union can be party to the agreement.


Union officials say errors were made in the 2012 hiring process – mistakes they blame on city management in a process the union says was selected by city officials. However, union representatives have argued that the 2013 hiring class – one selected via a process the union claims it brought to the city – produced the most diverse class in as many as 10 years. The AFA argues that there is no need for the decree, a document that could result in between four and eight years of federal oversight of the Fire Department’s hiring process.


In its filing, the city agreed to a settlement that would force it to pay up to $780,000 to unsuccessful minority candidates, and reserve 12 African-American and 18 Hispanic positions in future firefighter academies. The agreement came a month after the City Council voted 5-2 in favor of the decree. (See Austin Monitor, June 10)


A side effect of the deal – one union officials say city management purposefully pursued – could eliminate union input on the hiring process during collective bargaining. In papers filed alongside the petition to intervene, the union submitted two affidavits from members of the negotiating team involved in a prior collective bargaining process. Both describe what they saw as purposeful maneuvering on the part of management.


“During either the 2008 or 2009 bargaining process, the city’s lead negotiator made it clear that the city was demanding complete control over the process for hiring new firefighters, free of both civil service law and any process, standards or constraints requested by the AFA,” said Michael Kregg Phillips.


According to the affidavit, Phillips said the city claimed that if the AFA did not give it complete control over the hiring process through a contract, the city would wait for someone to file an Equal Employment Opportunity Commission complaint. Phillips said the city said it planned to purposefully make a weak defense and agree to a settlement that would result in a consent decree. That, he asserted, could allow the government to take away any civil service protection or input by the AFA to the hiring process.


Phillips also says now-Deputy City Manager Michael McDonald made numerous statements that “he desired the city to be free of civil service constraints or any other contractual obligations concerning the hiring of firefighters and that, without these powers, he believed the only way to increase the number of African-American firefighters was to obtain a consent decree.” Phillips adds that McDonald’s “statements were to the effect that if AFA did not give the city this power, the city would then seek out methods to obtain a consent decree.”


Despite requests by the Austin Monitor, McDonald has declined comment on the ongoing dispute between the city and the union.


Phillips’ statement and the very nearly identical one of another member of the negotiation team, Warren Weidler, further expand on the AFA version of events: That management engineered the consent decree in pursuit of a way to push AFA away from the bargaining table on this issue.


Council members approved moving forward with the consent decree in May as part of a contentious hearing. Council Members Mike Martinez – the former head of the firefighters union – and Chris Riley attempted to offer a way to directly negotiate with the Justice Department over the matter.


Martinez cast that attempt in terms of the heated nature of the current environment. “It is one story after another, it is one version after another,” he said at the time.


He and Riley voted against the consent decree.


Union head Bob Nicks emphasizes that the document filed with the federal court Friday is not a lawsuit. Rather, it petitions for union standing as part of proceedings associated with the consent decree. Attorney Craig Deeds is representing the union in the matter.


Council members and management have indicated that the Fire Department is in need of new hires as older firefighters continue to retire. Fire Chief Rhoda Mae Kerr said in May that the ranks were 76 short of being at full staff, and with more retirements, the number could grow to 100 by the end of the fiscal year.


Nicks told Council members at the May hearing that union intervention in the matter could leave the matter bogged down in the courts for as long as four years. Union officials believe that their legal maneuvering could hamper the city’s ability to make new hires.


However, in approving the decree, Council Member Bill Spelman suggested the opposite could be true. “It seems to me that…the acceptance of this consent decree is not going to have any effect whatever on our ability to work with the union on developing the 2014 process and it seems to me that’s the fastest way to get firefighters on the job as quickly as possible.”

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