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Firefighters say city lawyers unreasonably stopped arbitration

Wednesday, April 5, 2023 by Jo Clifton

The city of Austin’s Law Department has stopped participating in an arbitration hearing with the Austin Firefighters Association, and City Council will have the chance on Thursday to approve that decision or direct its lawyers to continue the process. Council has an executive session scheduled for 11:30 a.m. Thursday.

Bob Nicks, president of the Austin Firefighters Association, has written a letter to Council members asking them to order city lawyers to continue participating in the arbitration process. According to Nicks, the city’s lawyers have cited a ruling from the Texas Supreme Court as their reason for suspending arbitration. In addition to the question of wages, Nicks said the union is asking for better benefits and working conditions.

“Our raises have been less than any other employee group and our raises have been below the cost of living,” Nicks told the Austin Monitor. He added, “It’s starting to affect firefighters and their families … we wanted to go in front of a fair, impartial arbitrator. We just want to simply get a fair deal.” He said he did not blame interim City Manager Jesús Garza, who has been in his post only a short period of time.

Although City Council told its lawyers to participate in binding arbitration if the parties reached an impasse last May, the arbitration itself did not start until last Wednesday, Nicks said. According to the Council resolution, arbitration would go forward unless the charter amendment allowing for such arbitration were successfully challenged in court. There has been no such court case to date, but Nicks said the city’s attorneys are arguing that they should not participate in arbitration because of last Friday’s ruling against the city of Houston on a similar issue.

As reported by the Houston Chronicle, the Texas Supreme Court on Friday struck down a voter-approved measure that would have given Houston firefighters pay equal to what Houston police officers make. “The ruling in the landmark case deals a blow to the Houston firefighters’ union, which has sought implementation of the measure since it won voters’ approval in 2018,” the paper reported.

The Chronicle noted that Houston firefighters make less than their counterparts in both Dallas and Austin. The proposition that was found unconstitutional would have required firefighters’ and police officers’ unions to negotiate their pay together. The court found such a scheme to be illegal under state law.

However, Nicks said the Austin Firefighters legal team explained why the Supreme Court had ruled that the “pay parity amendment” was inconsistent with state law. First of all, the amendment Houston was using “provides a different compensation measure” than comparable private sector pay, which is the standard under Chapter 174 of state law.

Second, the Houston amendment required firefighters’ associations and police associations to bargain together, which is only allowed if both unions agree.

Finally, Nicks and the firefighters’ lawyers say that state law “measures firefighter compensation according to comparable private sector pay and conditions of employment.” So, if private sector compensation is less than police officer compensation, then the Houston amendment contradicts state law “by mandating that the city pay its firefighters more than the statute prescribes.”

Nicks and the union’s lawyers say Austin’s charter amendment is very different from Houston’s. While the Houston provision provided a standard by which compensation must be measured, “Austin’s charter provision only provides a process to resolve collective bargaining impasses,” they argue.

Finally, the firefighters’ lawyers refer to another case, which was “cited with approval by the Texas Supreme Court in a different portion of (the Houston) opinion.” Quoting a 1991 Beaumont Court of Appeals opinion, the court said that, “No reading of (the state law) would lead us to a conclusion that the Act absolutely prevents mandatory binding arbitration should the electorate through the initiative process and through their reserved power elect to do so.” So that would appear to be an approval of binding arbitration if approved by voters.

Unsurprisingly, Nicks concludes his letter to the Council by recommending that they order city staff to continue participation in the arbitration process that was underway when the ruling came out. If they do not return to arbitration, it seems likely firefighters will take the matter to District Court.

A city spokesperson issued a statement to the Monitor saying “The Texas Supreme Court issued a significant ruling on Friday which relates to the arbitration proceeding currently underway between the City and the Austin Firefighters Association. The arbitration is in recess so that City attorneys can advise Council about the ruling.”

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here. This story has been updated with a statement from the city of Austin.

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