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She had no idea what was coming, an African American mother
of 3, she never imagined they would turn on her. As a teen,
her family had been saved by the efforts of Toledo
firefighters. From that day forward she grew up dreaming of
joining Toledo Fire, helping others and helping her
community. She pushed herself, she was tested – physically
and academically – and she passed. She qualified and was
chosen as part of the incoming class at the Toledo Fire &
Rescue Training Academy only to be betrayed by her own
Union, Toledo Firefighters Local 92.
As a former union organizer; union member; university
professor who taught collective bargaining; chief collective
bargaining negotiator for private and public employers, and
nearly 40 years of experience, I have never known any union,
until now, to betray a dues-paying member in good standing
by a filing an Amicus Brief with a court against that member
and, in doing so, joined an employer, here the City of
Toledo, against a member who sought to be reinstated from a
wrongful termination. The Toledo IAFF Local 92 public filing
is available to you by googling the Lucas County website,
https://www.co.lucas.oh.us/99/Dockets-Online, click “I
agree”, enter case no. “201903783” and press “search”. Do it
now.
In my opinion, unions historically and favorably have been
the hallmark of excellence in representing their members
against mistreatment; union members have relied on unions to
protect them from wrongful treatment by an employer, and
members have rightfully believed when mistreatment occurs
and a grievance is filed, representation from the union will
occur - which would include filing and pursuing the member’s
grievance through arbitration if warranted.
In my opinion, Toledo’s African-American firefighters have
endured multiple patterns of discrimination from the Toledo
Fire & Rescue Department, most recently by the current city
administration through its fire chief, its safety director
and the mayor, but to be betrayed by its public servant
union exceeds any foreseeable anticipation.
I use the generic “she” in this editorial because what
happened here will, if not stopped, happen to you, and, if
not to you, to your children, your friends, your relatives,
to the members of your community.
While training, she was accused of violating Academy policy
– a policy which did not exist. In a lesson to us all, this
trainee persisted; she stood her ground demanding union
representation against the baseless charges. And she was
right. Chief Byrd, knowing he could not win against her on
the merits of the charge, even without the support of her
union, let the charges lapse through passage of time. Why,
because he and the administration had a new tactic.
They would let her finish the Academy, take all the tests
required to be a state-certified Toledo firefighter, and
then they would squash her and, along with destroying her,
they would send a message to all other minorities - to keep
their mouths shut, to not defend themselves against unfair
and discriminatory treatment. They would wait until just
before graduation and with the prize within her reach, a
prize she had won through hard work and perseverance, they
would fire her.
After overcoming months of harassment and discriminatory
treatment at the Academy, she passed every City of Toledo
and State of Ohio firefighter certification examination
required for graduation. Then, after being informed she had
passed, after she was given her firefighter’s badge, uniform
and fire station assignment, after dressing and greeting
family and friends planning on attending her graduation
ceremony, just hours before that planned celebration, she
was summarily terminated by Fire Chief Brian Byrd.
His justification was a non-descript, totally subjective
claim of “unsatisfactory performance.” She was given no
further explanation. She had never been progressively
disciplined. She had never had a disciplinary hearing
establishing she violated any policy, procedure, or
directive which warranted a suspension or termination.
The administration had tried to railroad her, but she had
stood her ground and they had failed with their trumped-up
charges against her. But now under their new plan, after
failing to beat her down, to stop her, they got her. Fire
Chief Byrd, bowing to and joining with the same TFD ranking
members whose overt discrimination she had resisted
throughout the Academy, fired her without just cause. They
had humiliated her publicly; they thought she would crumble
and go away.
They were wrong.
She requested that Dan Desmond, president, IAFF Local 92,
file a grievance protesting her termination. Incredibly, the
IAFF Local 92 president asked her to tell him not just the
facts of what happened to her, but he also demanded she do
the union’s job, that she define the articles of the
collective bargaining agreement that had been violated. If
she refused or could not comply, the union would not
consider going forward.
She is a union member; though not a firefighter she is a
Toledo Fire & Rescue Academy Trainee. She doesn’t have a
whole city administration behind her with a staff of
attorneys and more funds than will ever be necessary to
pursue her case. That’s why you have a union, to give you a
fighting chance – some semblance of equality against a
larger, more powerful employer.
Instead, her union tried to game her, to fabricate a basis
upon which to refuse to represent her in her grievance
against the unfair treatment rained down upon her.
Nevertheless, and to the union’s surprise and chagrin, she
complied as best she could by detailing the various CBA
articles that had been violated.
Remember, IAFF Local 92 solicits academy trainees, after 60
days of employment, to join the union, to begin paying dues.
But for what - for non-representation? To have that union
turn on its members? This type of fee charging without
representation has been addressed by the U.S. Supreme Court.
In Janus v. AFSCME Council 31 June 8, 2018 the Court
knocked out the agency shop/fair share fee under Illinois
law. Local 92 members should read this decision and,
perhaps, union members should demand refunds of dues paid
for nothing.
But again, she would not surrender, now she wasn’t just
fighting for her dream, she was fighting for her family, for
her ability to survive. She appealed her termination under
the collective bargaining agreement rules. She asked her
union to represent her in pursuing a hearing, a hearing she
never had on the charges against her. She asked the union to
pursue arbitration. And again, the union, per IAFF Local 92
Union President Dan Desmond, claiming support of the union
board, and the union’s attorney, Donato Iorio, Esq., refused
her request. They sided with the City which claimed she had
no right to be heard.
Locked out of arbitration, she appealed her firing to the
Toledo Civil Service Commission. Instead of giving her a
hearing, the Commission met behind her back, without any
notice or opportunity for her or anyone on her behalf to be
heard. They ruled that she had no right to even know they
were contemplating her case, they ruled she had no right to
be heard.
Again, the administration, from Fire Chief Byrd to Mayor
Kapszukiewicz, thought she was done. She was not. She
appealed this kangaroo court decision to the Lucas County
Court of Common Pleas. Her case is pending before Judge
Alphonso Gonzales. And that is where it happened.
After extensive briefing, being faced with the weight of the
evidence against them, the City turned to her own union -
the union she has repeatedly asked for help and been turned
away. Why? Because people in power don’t like being
challenged and if anything has been learned through our
history it is that people in power, especially, don’t like
being challenged by minorities.
Not only has the union refused to help her, now in a final
attempt to teach her a lesson - to teach her to stay in
place, to not speak the truth, to not fight for her dreams
and her family - her union, again through Dan Desmond and
Donato Iorio, have not only abandoned her, they have
betrayed her - they have actively advocated against her. And
by seeking to silence her, the union is now advocating
against the due process rights of all
IAFF Local 92 members. In this process, IAFF Local 92 has
thrown the well-established position that Academy Trainees
are not yet “probationary firefighters” who have no rights
of notice and to be heard when they are arbitrarily
disciplined and even terminated.
The union has joined the administration and now claims that
an academy trainee is a probationary firefighter having no
rights to appeal wrongful charges and not to be heard when
the administration disciplines or terminates them. Why?
Because to win, to crush and silence this female,
African-American upstart, the City needs the union to
overcome the sworn testimony of both the battalion chief,
herself a long-term Local 92 member, who was then in charge
of the Training Academy, and the sworn testimony of Fire
Chief Brian Byrd, who was also a long-term member of the
union until as fire chief he became a member of the City
Administration.
Both have testified in another case that an academy trainee
does not become a probationary firefighter who has a right
to be heard on appeal of wrongful discipline or termination,
until after graduation from the Academy. That testimony is
now in front of Judge Alphonso Gonzales and the
administration has no defense of its own against it. Now the
union, Dan Desmond and Donato Iorio, after refusing her
pleas to join her in her appeal, have inserted themselves
without even asking the court for permission, and filed
against her.
IAFF Local 92 without any Toledo firefighter precedent to
support them whatsoever now claims a trainee has no right to
be heard because trainees are probationary firefighters who
have no rights of due process. In doing so the union ignores
the Ohio Revised Code, O.R.C. 4117.09, states clearly: “A
party to [a collective bargaining] agreement may bring suit
for violation of the agreement or the enforcement of an
award by an arbitrator in the court of common pleas of any
county wherein a party resides or transacts business.” The
union goes against the very language of their own collective
bargaining agreement, which states in very plain language,
that probationary fire fighter term commences “after
graduation.”
To support its unsupportable position, Local 92 claims it
only makes sense that academy trainees can be summarily
terminated without any right of notice or hearing on the
validity of the claims against them as a matter of public
safety. They argue that because firefighters are dealing
with the lives of community citizens, Toledo administrators,
including the fire chief, the safety director and the mayor
must have the unbridled power to jettison probationary
firefighters as part of their duty to protect the public
health and safety. As applied to academy trainees however,
this argument is nonsense. Academy trainees do not
participate in active firefighting duties with the public,
they are not allowed to even wear firefighter logoed
clothing because they are not firefighters until after they
graduate the Academy.
Why would the union go against its own members? Because as
confirmed by Fire Chief Byrd’s recent report to Toledo City
Council, only minorities - Hispanics and African Americans -
have been fired from the training academy. Non-minorities
have not been subjected to termination no matter if the
offenses and violations charged against them were actually
committed .By IAFF Local 92 taking the City of Toledo
administration’s side against the rights of its members, in
reality, through the 100 percent application of this policy
only against minorities, the Union is taking the
administration side against only the rights of
African Americans and Hispanics.
While Caucasians may not care about this fight now, because
it does not currently affect them, or because it doesn’t
happen to them, Local 92 has abandoned the rights of all its
members. It is one thing for the City of Toledo to argue for
more rights, for more power over its employees, but it is
unheard of, it is unprecedented and it goes against the very
purpose for their existence for IAFF Local 92 Union to join
the employer in denying a union member in good standing
their rights to be heard, and instead to argue for the
abolishment of those rights. It is the purpose of this
contributing editorial to expose Local 92’s desertion, to
let you know of the union’s outright rejection of members
rights in the face of unconstrained and arbitrary power and
to let you know how this insidious discrimination is being
used right now to destroy a community member and her family.
Our community-at-large needs to know how the current City
Administration and IAFF Local 92 leadership are stripping
minorities - especially African Americans - of the right to
be heard, the right to fair treatment, the right to a job
they have earned and the ability to support their families.
Our community and employees of the Toledo Fire & Rescue
Department need to stand up and firmly reject these
persistent, insidious racist policies. Our community needs
to do it now.
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