Having just labored through the pleadings filed by the Austin Firefighters Association to the federal court considering the proposed consent decree on firefighter hiring between the U.S. Department of Justice and the City of Austin, I find myself agreeing with Council Member Mike Martinez. As I wrote last month ("Fixing What Ain't Broke," May 23), Martinez and CM Chris Riley dissented from a Council decision to accept the consent decree, after the city's attorneys suggested that even attempting to delay the decision for a week might provoke a DOJ lawsuit. A tentative move to do that, for negotiating purposes, was withdrawn, and Council voted 5-2 to accept the decree. Commented Martinez, "We will not be moving forward by approving this consent decree. We will be moving very far backwards, I promise you."
Well, it looks like we've got our federal lawsuit, anyway. The AFA has filed to intervene: The union is directly affected by the terms of the consent decree – which would hand over the hiring process to the DOJ for four or possibly eight years – and the pleadings alone suggest they've got a pretty good argument for getting into court. Their attorneys argue, "A long-term consent decree would eviscerate the collective bargaining process and thwart the purposes it is intended to serve. In effect, establishing a new hiring process through judicial enactment strips the AFA of its statutory power to negotiate on behalf of the Austin firefighters. Accordingly, the only way the AFA can vindicate its rights is by intervening in this suit."
Since the city formally insists it has not broken federal anti-discrimination law, but is nonetheless submitting to the decree, the union argues that the decree should have been contested – particularly that aspect covering the 2013 hiring process, which all parties agree delivered the most qualified and most diverse cadet class in department history. It's even expected that under the decree, the DOJ would use essentially the same process to hire the next class. We're not likely to learn if that's even possible, for a long while – as threatened, the union's intervention likely means extended litigation. Even if the union's immediate intervention is not granted, the AFA promises additional legal action – meaning additional delay – to regain its collective bargaining rights.
It's not clear whether any of this was avoidable, nor even who's more at fault, at least in historical terms. Certainly the Austin Fire Department, like most departments nationwide, had a lengthy history of institutional racial discrimination that kept minorities off the force, and it was only a previous DOJ consent decree (1977-82) that successfully produced an initial wave of integration (which is to say, justice). For the previous decades, management and union members were essentially united in preventing integration, and city management has a legitimate interest in avoiding a return to those all-white days, especially since the minority firefighters who were recruited under that decree are now entering retirement.
But in attempting to remedy that situation, city management has often been arbitrary and ham-handed, seemingly more intent on evading the union rather than collaborating with the membership (and the vast majority of the 1,500-member force is unionized). As the AFA pleadings put it, a bit hyperbolically: "The City of Austin has a long and sordid history of making race-based decisions related to the fire department whenever it has had any discretion. For example, in 2005, the City and the AFA entered into a collective bargaining agreement that allowed the City to appoint firefighters to the four Assistant Chief positions. Rather than appoint these persons based solely on merit, the City abused its discretion by improperly reserving one Assistant Chief position for an African American and one for a Hispanic."
I'd feel a whole lot better if the union's version of that "long and sordid history" acknowledged that it extends back many more decades of exclusionary institutional (and personal) racism before the city's recent clumsy attempts to get right with minority candidates by re-organizing the departmental makeup by fiat. That terrible, unjust history can't be ignored, even if the city's more recent efforts suggest management believes that simply unilaterally enforcing racial diversity, without meaningful collaboration with working firefighters, will solve the diversity problem and make it go away.
But according to two firefighter reps, they were previously told by management negotiators that if the AFA resisted ceding all hiring authority to management, the city would offer only a lackluster defense to any Equal Employment Opportunity Commission complaint – and eventually get what it wanted by DOJ consent decree.
The city denies such machinations, of course, but it just so happens that that's essentially where we are right now. And instead of trying to at least see if it could sustain the 2013 hiring process – satisfying the AFA as well as the DOJ – Council opted to capitulate and cede the question to the federal court. Perhaps city management is banking on a ruling that will exclude the union – Lord knows the federal courts are not exactly workingman-friendly these days. But even if it eventually imposes its will – after several years of litigation – management will do so upon a firefighter workforce that will believe it has been gamed out of its collective bargaining rights, and become subject to a hiring process in which it has had no voice.
It does not sound like a recipe for good morale, solidarity, or effective firefighting, always a teamwork affair.
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