The Austin Chronicle

Disagreeing to Agree

With contract negotiations suspended, Austin firefighters look inward for a change

By Michael King, January 16, 2009, News

Late last year, the months-long contract negotiations between the city of Austin and Austin Firefighters Association Local 975 ended acrimoniously when the union members overwhelmingly rejected the new contract proposal, tentatively concluded under the state's "meet and confer" laws governing public-safety unions. Although the negotiating teams from the city and the union had largely resolved pay and pension questions, the discussion soured over hiring procedures and standards. City management wanted increased flexibility in hiring procedures to broaden the demographic diversity of the department, and the union countered that undefined "flexibility" in hiring potentially threatens common and fair hiring standards altogether. Although the union negotiating team officially recommended the contract proposal to the membership, a split in the committee meant that some union officials campaigned against the agreement – and on Nov. 26, members concluded a 582-160 vote to reject the contract.

That's where things stood in December when City Manager Marc Ott announced (with City Council approval) that the city had fulfilled its "statutory obligation" to negotiate and would not return to the table – perhaps not until next summer, at the beginning of the new budget cycle. The previous contract expired Sept. 30, and until further notice, the Austin Fire Department is operating under state civil service rules. Asked later about the deadlock, Assistant City Manager Mike McDonald reiterated that in management's judgment, "right now we've got an economic crisis that takes priority. We negotiated in good faith for 7½ months, and we reached a tentative agreement, but the members voted to reject that agreement. We have fulfilled our statutory obligation, and now we have to turn our attention to this economic crisis."

The Austin Firefighters Association was not happy about the city's response to the contract rejection and still isn't. "Contracts get voted down all the time in labor negotiations," said recently elected AFA Secretary Bob Nicks last week. "But that doesn't mean negotiations end. If that's the city's position, we consider that evidence of negotiating in bad faith." In December, Nicks and a committee of firefighters wrote to Ott, asking "what it would take" to get negotiations moving again, but at this point, management hasn't budged.

Earlier this week, McDonald said the situation has not fundamentally changed, and with continuing bad economic news, the city has to concentrate on other priorities. "We don't plan on additional meetings with the firefighters in the near future, but it's not because we have no interest in talking to them. We just have other urgent priorities right now that we have to focus on." He rejected Nicks' accusation of "bad faith." "The union [committee] was itself split on that contract," McDonald said, "so it was not presented to the membership in a normal, unified fashion."

Yet even while city management has reaffirmed its opposition to further negotiations, in the last few weeks there has been movement on the union side, and in a surprising direction. According to Nicks, a battalion chief and also AFD director of training, the firefighters have shifted their own priorities from further negotiations directly to the hiring issue, and more broadly to the negative public image of the AFD and the union that has been created by the impasse. "We're not trying to get back to the table right now," said Nicks last week. "We don't want to get back to the table and have 'racism' used against us" in negotiations.

That's because the major sticking point has reflected the city's insistence on broad flexibility in hiring procedures to meet its goal of creating a more diverse firefighting force – less Anglo, less male, and more reflective of the demographic makeup of Austin as a whole. Contrary to much public perception, insists Nicks, the union shares the city's goal of diversity – the two sides are just at loggerheads over how best to get there.

Statistics and History

Certainly the raw demographic numbers of the department staff argue that it's way past time for the AFD to diversify. As figures provided by the department last week reflect (see "AFD Staff by the Numbers," below), in a city that is approximately 45% white, 35% Hispanic, and 9% African-American, 79% of our firefighters are white, and 95% are men. Only 15% are Hispanic, and 5.5% are African-American. (The remaining percentages, e.g., for the city's growing Asian population, are even worse.) This is not a new or surprising issue; it took a Department of Justice investigation and consent order in the early Eighties to raise the African-American numbers to what are now 56 firefighters. And as both Nicks and McDonald point out, a large group of black and Hispanic firefighters who entered under the decree will soon retire – meaning that without serious short-term recruitment, the minority firefighter numbers soon will be getting worse.

Despite those distressing numbers, Nicks says his fellow firefighters are being unfairly characterized by the city and local media as (so says their letter to Ott) a bunch of "white guys who want no change." He says that he and five other firefighters who (with the union's blessing) signed the letter to Ott are a multiethnic group of (mostly young) men and women committed to the department and the city's future. Frustrated by the deadlock with the city, Nicks says the group has become a de facto "hiring and diversity committee," tasked by the union with conceiving a cadet hiring and standards proposal that will meet the approval of the city as well as the union. "The city says it wants diversity," Nicks said last week, "but they haven't been able to come up with an effective plan to create it – instead they just want 'flexibility.' We think that's a recipe for more unfairness, and we believe there are better ways to do it." The group, now with seven members but still without an official name as of last week, is formulating a draft plan it is showing to official and media representatives in an attempt to restart the conversation.

Flexibility or Fairness

The crux of the argument over the hiring of new cadets turns on the meaning of the much-debated terms "standards" and "flexibility." In the name of maintaining "high standards," the union balked at the city's demand for "greater flexibility" in various candidate rankings and skill tests and examinations used in the hiring process; the city responded that "standards," in this context, has become little more than a code word for repeating the same old mistakes and hiring in the same old demographic patterns. "We haven't lowered any 'standards,'" insists McDonald. "Wherever we've made a change, we've tightened the standards, not lowered them."

The argument came to a deadlock over the proposed contract, which the city says intentionally included a provision (Article 17, Section 9: "Changes to Process") that would have granted broad flexibility (Nicks says "unlimited flexibility") to newly appointed Fire Chief Rhoda Mae Kerr, who assumes her office in February. Article 17, "Hiring and Cadet Training," contains sections on examinations, ranking, grouping of candidates, interviews, etc., mostly specific and technical. Section 9 reads, "Notwithstanding any provisions of this Agreement or Chapter 143 [of the civil service code], the City may amend the process described in this Agreement or may develop and implement a process for hiring that deviates from any current restrictions of this Agreement and/or Chapter 143," followed by a couple of narrow exceptions. According to Nicks, the provision "means they can change the hiring process in any way they want or develop an entirely different process disregarding civil service 143 law." Moreover, he said, the city rejected the inclusion of "fairness principles" that would guarantee the same process for all applicants. The union's negotiators split strongly over this provision, but narrowly approved the contract; when it went to the members, Nicks and others spoke out against it, and Nicks believes the members' rejection confirms his own judgment of this provision.

The city responds that the union's stated fears of variable standards (i.e., selective favoritism) are exaggerated in light of governing law and common practice and also ignore a historical Fire Department culture in which nepotism, favoritism, and institutional racism created the radical demographic imbalance still in evidence today. McDonald says the department, especially under a new chief, needs the ability to "tweak" the hiring process to get it right, and a rigid contract, binding for four years, would make it impossible to adjust to mistakes or changing circumstances.

Nicks doesn't deny that the department he joined in the mid-Eighties was still marked by casual racism and sexism, but he says it's virtually unheard of among current firefighters. "You just don't see it or hear it anymore," he said, "and I think people are making judgments based on the way things used to be – especially among these younger firefighters, it's just not that way anymore."

Not everyone at AFD is persuaded that racism is a thing of the past, nor that the rejection of the proposed contract carries no taint of resistance to greater diversity. Darren Hyson, secretary of the Austin African-American Firefighters Association, commented wryly: "Some folks look at the history of resistance to meeting the diversity goals ... and think, could that be what's still going on? The burden of proof is on those that are resisting." He also dismissed the claim that flexibility in hiring threatens "standards." "The Texas Commission on Fire Protection mandates what [standards] must be met," Hyson said, adding that a contract can't change that.

Evolving the Process

Whatever the general level of personal racism or gender animosity at large in the Fire Department, the personnel numbers are undeniable, do not fairly reflect the population of the community they serve – and because of those pending retirements, are likely to get worse before they get better. Nicks says he and his colleagues are determined to make those numbers change for the better and are in the midst of developing an overall hiring plan to address both the short-term shortage of minority and female cadets as well as the long-term need for a fairer hiring process that the entire department, and then the whole city, can support.

It's arguable that the union's new posture is as much an attempt to make lemonade out of post-negotiation lemons as it will be a new breakthrough approach to hiring firefighters. When the contract was initially rejected, union officials clearly expected the city to return to negotiations to pursue alternatives. For the next several months, at least, it does not appear that's going to happen. "This is still an evolving hiring process," Nicks says, "and will not be presented to the membership for their approval until it is closer to a completed program. This is a committee authorized by the association president but has been given much latitude to work toward solving the hiring issues, addressing mischaracterizations [of the firefighters], and then returning to the table."

New Fire Chief Kerr is arriving in Austin at a very interesting time. Indeed, her own appointment is testimony to a wind of change blowing across City Hall. Whether that breeze will soon kindle embers now burning among the firefighters themselves the next few months should tell.

AFD Staff by the Numbers

AFD RankMaleFemaleCaucasianHispanic-AmericanAfrican-AmericanAsian/OtherTotal
Battalion Chief3002820030
Division Chief4150005
Assistant Chief3020103

Women make up only 5% of the Austin Fire Department staff overall, and there are only four women on the force with the rank of lieutenant or above (1.4% of those in that category). Of the 106 officers ranked captain and above, 98 are white males.

Source: Austin Fire Department

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