City Council Helps Firefighters Keep Arbitration on the Table

At today's meeting (Thursday, May 5), City Council is slated to consider a resolution by Council Member Ann Kitchen to safeguard the Austin Firefighters Assoc­ia­tion's ability to seek binding arbitration during upcoming contract negotiations with the city – as Austin voters overwhelmingly supported in May 2021.

Kitchen's item requires City Manager Spencer Cronk and his Labor Relations team to agree to arbitration with the AFA if the firefighters' contract talks, set to begin May 16, reach an impasse. However, if at any point the courts rule that the May 2021 ballot measure (Proposition A at that election) violates state law, the city and AFA will discard whatever agreement emerges from arbitration and return to the table.

Under Texas law, public safety unions cannot engage in strikes or other forms of work stoppage as a means of protesting disagreeable labor conditions, so the leverage in contract talks usually belongs to the city. Chapter 174 of the Local Government Code allows cities to opt into binding arbitration agreements with their police and fire unions. The AFA won voter approval in 2004 for collective bargaining with city management, but without binding arbitration; since 2008, when AFA President Bob Nicks was first elected, the union and the city have gone to impasse three times.

That's what prompted the union in fall 2020 to begin gathering signatures to put another citizen initiative on the ballot, which would allow AFA to seek binding arbitration of contract disputes regardless of whether the city agrees. Such measures have been approved in cities across Texas going back decades, but in an Oct. 9 email to Nicks, the city's Chief Labor Relations Officer Deven Desai wrote, "While we have not had time to review thoroughly, there may be a legal issue if the arbitration process set out in the petition conflicts with state law." The city did not pursue the issue further at the time, before the election at which Prop A gained 81% of the vote.

More than a year later, Desai wrote Nicks on Feb. 28, asking AFA to forgo its newly won right to require binding arbitration in the upcoming talks. Desai said the Texas Supreme Court was set to hear two cases between the city of Houston and its firefighter union and so the city preferred to wait. "Bottom line," Desai wrote, "we did not want you to be surprised that the city won't be participating in any binding arbitration process" until SCOTX made its ruling.

Nicks says entering negotiations without the option to go to arbitration would totally change the tenor of the talks, and both sides could be emboldened to behave unreasonably. "Binding arbitration forces both sides to be honest at the table during negotiations before arbitration even becomes a possibility," Nicks told us. "It's better for both sides, and voters agreed with us on that."

Neither of the two Houston cases involves binding arbitration. One deals with a provision of the code that allows a district judge to impose a one-year collective bargaining agreement in case of impasse, which the city argues is unconstitutional. The other involves a 2018 Houston ballot measure that mandates pay parity between firefighters and police officers, with the two public safety unions against each other in court.

In a statement to the Chronicle, a city spokesperson offered more insight into what City Hall's legal concerns with Prop A may be. One problem, as the city told Statesman metro columnist Bridget Grumet in late April, is that the measure compels the city to enter arbitration rather than voluntarily agree to it. However, in a 1991 case out of Port Arthur involving a charter amendment similar to Prop A, a Texas appellate court ruled that while state statutes encourage cities and unions to agree to arbitration voluntarily, nothing in state law "absolutely forbids mandatory and binding arbitration" or prevents voters from adopting such a requirement.

The city is also now making a separate claim that the arbitration standards set forth in Prop A are illegal. State law says that an arbiter "shall consider" seven standards, including employment hazards; physical, mental, and educational qualifications; and "other factors." The AFA amendment includes these standards and adds other areas an arbiter could consider: wages and benefits in other cities, the cost of living in Austin, and the impacts of any ruling on the city and its taxpayers based on available revenues and financial obligations included in the contract.

The Houston cases are unlikely to clarify any of this, and Nicks feels AFA would have the upper hand if the city challenged Prop A's legality directly. Kitchen's resolution would allow the city to do so – with Council approval.