Vulcans: UFA Out of Line in Opposing Suit

By ARI PAUL

The Vulcan Society of African-American firefighters is arguing that the Uniformed Firefighters Association's motion to intervene as a defendant in the U.S. Department of Justice's suit against the city's entrance exam for Firefighter violates the union's own constitution.

RICHARD LEVY: Questions UFA's position.

"If the UFA positions itself as a defendant, a claim could easily be raised that under Title VII [of the Federal Civil Rights Act] or state or local law, the union, in defending a discriminatory test, is itself discriminating and breaching its obligations under its constitution," attorney Richard Levy wrote Aug. 17 to U.S. District Judge Nicholas G. Garaufis, who is presiding over the case.

Challenge '99, '02 Tests

The DOJ sued the city this past May claiming that written exams given in 1999 and 2002 had a disparate impact on African-American and Latino candidates. The UFA moved to intervene on the side of the city, and the Vulcans, who filed the charges with the U.S. Equal Employment Opportunity Commission in 2002 that led to the litigation, sought to intervene on the side of the DOJ.

Justice Department officials have argued that the court should not allow the union to intervene. Mr. Levy's letter said that because the constitution of the International Association of FireFighters - with which the UFA is affiliated - forbids racial discrimination, the court should deny the union intervention.

"Black members may also be justified in claiming that the UFA is violating its duty of fair representation to them," Mr. Levy wrote. "The union is proposing to defend the present testing regimen when it has no knowledge as to the validly of the test, and in playing this uninvited role, it may become a lightning rod for other claims."

"I respectfully suggest that Mr. Levy's argument is without merit," UFA attorney Michael Block wrote to the judge Aug. 24. "Once again, the union is attempting to protect the safety of all its members, no matter their race nor gender. The UFA's position is neither arbitrary, invidious nor discriminatory to any of its members. It is certainly proper for the UFA to seek intervention and any assertion that they breach the duty of fair representation in doing so is false."

In a court filing Aug. 16, Assistant Attorney General Wan J. Kim reiterated that the Vulcans had a statutory right to intervene and that the DOJ would not oppose its motion to do so.

The UFA has claimed that potential Firefighters must prove that they have the mental and physical abilities to perform the job. The Vulcans have argued that the two tests under challenge do not establish definitively which candidates are best-qualified to do the job.