By Jim Cline and Peter Haller
In International Association of Fire Fighters Local 542 v. Clark County Fire District 6, PERC dismissed a complaint alleging that the decision not to promote a 24-year veteran firefighter to Battalion Chief was motivated by an anti-union animus. The hearing Examiner reasoned that although the veteran firefighter’s involvement in union activities may have upset the Employer, there was ultimately a non-discriminatory justification for the decision.
Captain Ryan Reese, a veteran firefighter in Clark County, was recently passed up for promotion to Battalion Chief in favor of a candidate with less firefighting experience. Reese is a 24-year veteran and a decorated union advocate, having held several union leadership positions over the years. Before putting in his candidacy for Battalion Chief, Reese was instrumental in resolving a grievance that resulted in a very favorable outcome for the grievant employee.
The record showed that an important decision maker in the hiring process, Fire Chief Mauer, was upset by the resolution decision and Reese’s involvement. Mauer expressed her disappointment with the union board, specifically with Reese, when she sent angry text messages to the Commissioner. Those texts resulted in Mauer being put on a performance improvement plan and having to issue an apology to the union board. The hiring process for the replacement Battalion Chief began just a month after the incident.
Out of the three candidates, Reese received the highest score on the technical examination and had the most years served. Nonetheless, Reese was passed up for a different candidate, Jeff Killeen. After Reese was informed that he was not selected, he told Mauer, “[it’s] no secret how you feel about me as Union president and president of Local 452,” to which Mauer replied, “it’s obvious you’ve been talking to Commissioner Hanes!”
To say that there was bad blood between Reese and Mauer is an understatement. The hearing Examiner noted that the hiring decision was close enough in time to the incident to raise the inference that anti-union discrimination had occurred. However, the Employer was able to articulate a non-discriminatory reason for the decision not to promote Reese. Namely, Killeen’s experience as interim Battalion Chief and his performance in his interview. The Examiner reasoned that,
“Killeen possessed this prior experience, whereas Reese did not. When taken in conjunction with the other factors explained above (Killeen’s effort and preparation and the depth and insight of his answers), the weight of the evidence suggests that the district’s decision to promote Killeen over Reese was substantially motivated by Killeen’s credentials rather than by union animus.”
Further, Mauer was not the only decision-maker, and the decision among the interviewers was unanimous. The Examiner noted that substantial weight must be given to a unanimous decision. Moreover, there have been six instances in the district where a candidate with higher technical scores did not receive a promotion. While the Examiner ultimately concluded that the Union failed to prove discrimination, he made a point to emphasize that his decision should not be viewed as acceptance or tolerance of Mauer’s behavior. On this point, the Examiner stated the following,
“The behaviors exhibited by Maurer in her frustration over the handling of the Culver grievance… clearly raised the specter that she was frustrated with the union and its leadership… Her behaviors are not excused, but under these facts they also didn’t unlawfully influence the decision to promote Killeen.”
Thus, because the Employer was able to show a non-discriminatory reason for not promoting Reese, and the Union failed to show that this reason was pretextual, the complaint was dismissed.
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