Is the City Trying to Bust the Firefighters Union?

Deputy City Manager Michael McDonald would not comment on negotiations with the DOJ. (Photo by John Anderson)

Austin Firefighters Association Presi­dent Bob Nicks says he was surprised last week to see listed on the City Council's meeting agenda an item that would have them approve a consent decree with the U.S. Department of Justice to define how hiring for the city's fire department will proceed into the near future.

It wasn't as though he was unaware the DOJ had been looking into whether the department violates federal anti-discrimination laws in its hiring practices – the DOJ announced its intention to do so in an April 2013 letter to the city's legal department – and the AFD is not alone among U.S. fire departments that have struggled with recruiting and hiring minority and female cadets.

What he did find surprising, however, was that city management was apparently ready to wash its hands of the issue, giving the federal government the power to devise a new hiring process, one that would attempt to overcome decades of paltry minority candidate hiring. Indeed, according to Nicks, the DOJ was surprised by the decision, too – that's what he said representatives of the agency indicated during a four-hour meeting with union officials on Tuesday, Jan. 28, just two days before Coun­cil would be asked to sign off on a plan – one that Nicks says hasn't even been finalized.

AFA President Bob Nicks questions why the city would want to concede that its hiring process is flawed. (Photo by Jana Birchum)

The decision to put the matter before Council was additionally troubling to Nicks since it wasn't until the week before that the AFA finally received documents, as part of an open records request made to the city, that reflect that the city's most recent hiring process, in 2013, generated a candidate list that is the most diverse in the department's history. According to the Aug. 6, 2013, email from David Morris, a management consultant hired to administer the firefighter candidate testing process, out of the top 100 candidates for the department's open positions, 42 are white, 23 are Hispanic, 13 are African-American, and 12 are female. "I am pleased to report that there is no adverse impact against any protected group" of candidates, Morris wrote to AFD Chief Rhoda Mae Kerr and other city staff, including legal staff. "The diversity for African-Americans within the first 100 candidates actually exceeds parity of the number of African-Americans applying and significantly exceeds diversity of African-Americans in the City's population," he continued. "These positive numbers represent the results of all of the dedicated work that you and your department and the Association have committed to this effort."

Nicks wonders how, with such a diverse candidate pool ready for hiring, it makes sense for the city to concede that the hiring process is discriminatory and needs remedying. The results clearly show that a previous problem with candidate testing in 2012, devised by another consultant, has been remedied, Nicks said. In that instance, an administrative error may have skewed the results of the test; by shortening the test from 2.5 hours to just two, the testing instrument was invalidated, resulting in otherwise-qualified candidates being cut from the list of those who could be hired. It was an unfortunate outcome, but not one that was intentionally discriminatory. (A potential remedy is either to hire or to compensate injured candidates.)

Ultimately, the item – authorizing the city to enter into a consent decree – was pulled from the council agenda and postponed until late February. Nicks said he hopes council members will take the opportunity to ask serious questions about why city management is pushing for a decree when the evidence supports the union's contention that the merit-based hiring process is considerably improved, and that any negative impact of the 2012 process was the result of an administrative decision and not an attempt at deliberate discrimination.

Deputy City Manager Michael McDonald declined to comment on negotiations with the DOJ, why the city had not provided the DOJ with the 2013 testing results, or why the item was placed on the agenda before those results were released and before negotiations had been finalized.

Ultimately, Nicks is concerned that the entire episode is a result of city management trying to bust the firefighter union. During contract negotiations in 2008, the city told the union that it wanted "unfettered hiring" authority, Nicks recalls. If the union wouldn't agree, the city said, it would wait for a complaint about unfair hiring to be filed, would then offer a "weak defense" to the complaint and would agree to a consent decree – a circumstance that would strip from the union's contract any ability to influence hiring practices. The union voted down that contract. The contract the union and city ultimately did agree on contained the hiring provisions that resulted in the diverse 2013 candidate list. Nonetheless, during contract negotiations last spring the city again pushed for unilateral hiring authority, prompting contract negotiations to reach an impasse. (The firefighter contract expired in October, 2013.) Now, the city appears to be pushing for the consent decree, just as it said it would five years ago, Nicks said. "I think it's a union-busting move, what they're doing. They're basically blaming the hiring process on the union," and it appears the groundwork to do so was laid back in 2008. "I'm not saying it necessarily connects all the dots, but it's pretty close."

Nicks said the union is now waiting for the DOJ to release information that would support any provisions included in a consent decree. "At this point we're not approving of a consent decree," he said, but the union remains optimistic that there will be a way to sort things out so that the government and the union can "meet our mutual demographic goals."