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Fire and Police Personnel Reporter
An employment law publication for law enforcement,
corrections and the fire/EMT services
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ISSN 0164-6397

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2004 FP Nov (web edit.)

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CONTENTS

Featured Cases with Links


Age Discrimination - Entry

Disciplinary Interviews - Weingarten Rights

Disciplinary Surveillance

Discovery Rights

Firearms - Restrictions on Wearing

Handicap Discrimination - Accommodation

Last Chance Agreements

Psychological Exams - EEOC

Psychological Standards - Termination vs. Accommodation

Seniority (2 cases)

Uniforms, Clothing and Equipment

Noted in Brief

Arbitration Awards - Right of Courts to Interfere

Bargaining Unit Determinations

Bill of Rights Laws

Collective Bargaining - Duty to Bargain (4 cases)

Disciplinary Hearings

Disciplinary Offenses

Disciplinary Procedures - Time Limits

E-Mail/Internet - Legal Issues

Family and Medical Leave

First Amendment Related (3 cases)

Funding Disputes

Handicap Discrimination - Accommodation

Holiday and Premium Pay

Jurisdictional Disputes & Work Erosion

Past Practices Clauses

Sexual Harassment Transfers - Non Disciplinary

Whistleblower Requirements and Protection

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

Age Discrimination - Entry

A 74-year-old Philadelphia police recruit, who was removed from the academy after failing firearms and running tests, loses his age discrimination lawsuit.

     A 74 year old, who was bounced from the Philadelphia Police Academy, sued for age discrimination. He had 10 years prior service with the PPD, plus service with the FBI and three other law enforcement agencies.

     He claimed that he was refused a "Waiver of Training" under the state's police training Act [53 P.S. 740] which applies to officers with more than five years of service. The city responded that waivers are decided on a case-by-case basis, and because it had been 26 years from the time the applicant had been a police officer, the City declined to process a waiver application.

     He was informed that he did not pass the night-firing firearms examination and the track run. Those recruits 60 years of age or older were required to run 1.5 miles in 16:07 minutes; his time was 18:05 minutes.

     He claimed, in his age discrimination lawsuit, that his score was incorrectly computed. The court noted that he presented no evidence that the score was incorrectly computed, or that he received the minimum passing grade.

     Because he admitted that he failed the time run, there is no basis for judicial relief. Brophy v. City of Philadelphia Police Dept., #03-CV-4139, 2004 U.S. Dist. Lexis 14665, 94 FEP Cases (BNA) 563 (E.D. Pa. 2004).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Disciplinary Interviews & Compelled Reports - Weingarten Rights

New York's PERB holds that a union employee is entitled to have his Weingarten representative present during a criminal interview. Although the conduct of criminal investigations of officers is not a mandatory topic for collective bargaining, the representative is there to assist an employee, not to negotiate with the employer.

 

See City of Rochester v. Public Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d 922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.); review denied, 2005 N.Y. Lexis 1120 (N.Y. May, 2005). The case is discussed in the July, 2005 issue of this publication.

     The police union in Rochester, NY, objected to the fact that two officers were denied Weingarten representation at their interviews. Both cases involved discharge of their weapons.

     Management was of the view that there is no right to union representation at a criminal investigation and that public policy considerations preclude union representation at criminal investigations.

     The New York Public Employment Relations Board noted that the right to union representation at a criminal investigation interview is no more intrusive than the right to counsel afforded to every citizen pursuant to Miranda.

     The Board observed a union representative is there to assist the employee, rather than to negotiate with the employer or interfere in any way with the progress of the investigation. The Board said:

"The integrity of the investigation is not compromised by the presence of a union representative any more than it is compromised by the presence of the police officer's attorney, which the City concedes is required by Miranda. ...

"Such a dilution of the employee's right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action."

     The Board ordered the city to cease and desist from refusing to permit a union representative to confer with members when a member requests representation prior to a criminal investigation.

     Rochester Police Locust Club and City of Rochester, Case #U-23938, 37 NYPER 3015, 2004 NYPER (LRP) Lexis 80 (NY PERB 2004).

      Click here to view the opinion on the AELE website.

 

See City of Rochester v. Public Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d 922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.); review denied, 2005 N.Y. Lexis 1120 (N.Y. May, 2005). The case is discussed in the July, 2005 issue of this publication.

      Return to the Contents menu.

Disciplinary Surveillance

Editor's Case Alert

Oregon's Supreme Court holds that a public employer can secretly install a device that monitors and reports the location of a government vehicle used by a public employee. In this case, a firefighter ultimately was convicted of First Degree Arson.

     The U.S. Forest Service employed the appellant as a fire prevention technician in Oregon's Umpqua National Forest. The USFS provided trucks for its personnel to use in the performance of their duties. In August 1998, the district ranger in charge authorized USFS law enforcement agents to attach a transmitter to the undercarriage of the truck that the appellant customarily used during her work shift. The transmitter emitted a signal that changes in speed depending on whether the vehicle is stationary or moving. By using a separate receiver, a person can determine the transmitter's location. The next day agents monitored the transmitter from an airplane. After determining the truck's location, the agents were able to track the truck visually, except when forest cover obscured their view.

     After monitoring the truck for over an hour, agents saw the truck stop in an open area; they observed the appellant leave the truck and squat down for about 20 seconds, stand up rapidly, get back into the truck, and drive away from the area. One of the agents immediately saw a flash of orange at the location where defendant had been, and, within seconds, he saw a widening dark patch on the ground and smoke rising from the area. The State of Oregon charged the appellant with 35 counts of first-degree arson. She filed a motion to suppress all evidence derived from the agents' observations, arguing that the use of the transmitter to locate and track the movements of her employer's truck had constituted a warrantless and unlawful search under the Oregon Constitution.

     The trial court concluded that there was a "search" but it was "reasonable" because defendant's employer had consented to the installation and operation of the transmitter. A jury ultimately convicted her of two counts of first-degree arson. A divided appellate court affirmed the conviction, although four judges dissented, arguing that the secret use of a transmitter to monitor defendant's movements during the workday had invaded defendant's protected privacy interest against electronic surveillance in the workplace.

     The firefighter appealed to the Oregon Supreme Court. It unanimously affirmed the conviction. The justices distinguished a prior case where police officers secretly attached a radio transmitter to a suspect's personal vehicle while it was parked in a public parking lot. Using a small airplane, the police in that case monitored the transmitter and observed the driver burglarizing a residence. The search violated the state's Constitution; State v. Campbell, 306 Ore. 157, 759 P.2d 1040 (1988).

     Here, however, the appellant was using a truck that her employer had provided to perform her work duties. The Justices said had no right to privacy with respect to that truck's location, and the transmitter never disclosed anything other than that location. She did not have a protected privacy interest in keeping her location and work-related activities concealed from her employer. "... neither the attachment of the transmitter to the truck nor the subsequent monitoring of that transmitter's location invaded a privacy interest of defendant ..." State v. Meredith, SC#S50173, 337 Ore. 299, 96 P.3d 342, 2004 Ore. Lexis 530 (2004).

      Click here to view the opinion on the Internet.

     Editor's Note: The increased use by public employers of global positioning satellite (GPS) units in agency vehicles -- and even in workers' cell phones -- has raised worker privacy concerns, according to employee rights advocates.

     The National Workrights Institute has monitored accounts of GPS units installed in police patrol cars other government vehicles. Cities such as Denver, CO, and Oakland, CA, put GPS units on selected vehicles to track employee locations.

     One commercially available cellphone monitors the location, speed, and direction of employees, and also captures start and stop times for employee shifts and breaks. It can send text alerts to the central office and displays a map with the location of the entire workforce.

     Several states have legislative controls under consideration. The following law review articles discuss this topic.

      "Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity," by Marc Jonathan Blitz, 82 Tex. L. Rev. 1349, Texas Law Review, 2004 (65,754 words).

      "Beyond Privacy: Confronting Locational Surveillance in Wireless Communication," by David J. Phillips, 8 Comm. L. & Pol'y 1, Communication Law and Policy, 2003 (10,484 words).

      "Information Technology and Workers' Privacy: Information Technology and Workers' Privacy," by Matthew W. Finkin, 23 Comp. Lab. L. & Pol'y J. 471, Comparative Labor Law & Policy Journal, 2002 (16,992 words).

      "Satellite Tracking and the Right to Privacy," by Aaron Renenge, 53 Hastings L.J. 549, U.C. Hastings College of Law, 2002 (9,480 words).

      "Who Knows Where You Are? Privacy and Wireless Services," by Ellen Traupman, 10 CommLaw Conspectus 133, Catholic Univ. of America, 2001 (15,776 words).

      "With Nowhere to Hide: Workers are Scrambling for Privacy in the Digital Age," by Rod Dixon, 4 J. Tech. L. & Pol'y 1, Journal of Technology Law and Policy, 1999 (15,431 words).

      Return to the Contents menu.

Discovery, Publicity and Media Rights

Editor's Case Alert

Federal court allows a plaintiff to subpoena an officer's medical and claims history, notwithstanding confidentiality privileges and privacy laws. The plaintiff claimed the officer shot him in the back because he was physically unable to chase him due to physical impairments.

     A California police officer shot a suspect in the back. Although the officer contends that the suspect was reaching for a gun, the injured man claimed that the officer shot him because he was in such poor physical condition that he was incapable of pursuing him on foot.

     After the incident, the officer had back surgery and eventually took a disability retirement. The plaintiff sought the officer's medical and Workers' Comp. records. The defense objected, citing the physician-patient privilege, the California Constitutional provision that protects individual privacy, and the privacy sections of the federal Health Insurance Portability and Accountability Act.

     The federal magistrate judge allowed discovery, saying:

"Plaintiff contends that [the defendant's] records are relevant to the issue of whether [his] back injury caused him to shoot [the] plaintiff, rather than run after him.

[The] plaintiff contends that whether [the defendant] was physically capable of performing his duties adequately and safely is relevant to whether the defendant was trained to use less aggressive methods of force to subdue [the] plaintiff. ...

If [the defendant] was unable to pursue [the] plaintiff on foot, due to his back injury, he may have decided to shoot him instead."

     The judge concluded that the information in the officer's medical records and worker's compensation file was "directly relevant to his physical condition on the day of the shooting." He said that the records could support or contradict the defendant's testimony that on the day of the shooting he was not suffering from any pain, which would have affected his ability to pursue the plaintiff, or which would have motivated him to shoot him rather than chase him.

     Hutton v. City of Martinez, #C02-1606, 219 F.R.D. 164, 2003 U.S. Dist. Lexis 19852 (N.D. Cal. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Firearms - Restrictions on Wearing

New Jersey Public Employment Relations Cmsn. restrains arbitration over the issue of whether an officer, who was sued after a shooting, should be re-armed. The issue is not arbitrable because an award could limit a city's policymaking power to determine the conditions it allows officers to be armed.

     In January of 2000, a Newark police officer was involved in the shooting of a civilian. Management confiscated the officer's weapon and he was put on stress leave.

     In June the city's psychologist found him fit for duty, but he was not re-armed. In January of 2001, the city and the officer were sued by the civilian who was shot.

     In February of 2003 the FOP filed a grievance asserting that the city's failure to re-arm the officer violated the bargaining agreement. The city denied the grievance and the FOP demanded arbitration.

     The city appealed to the Public Employment Relations Cmsn. for an order staying arbitration. Management argued that whether or not police officers should carry firearms while on duty is a managerial prerogative that implicates how a public service is performed.

     Because the civil litigation is still pending there is "potential liability for the consequences of re-arming an officer prior to the completion of all litigation."

     The Commission said that "the decision whether or not to arm a police officer is a policy decision not subject to mandatory negotiations." An arbitration award requiring management to re-arm an officer would "substantially limit the city's policymaking power to determine the conditions under which it is proper for its police officers to be armed."

     City of Newark v. F.O.P. Lodge 12, #SN-2004-13, P.E.R.C.#2004-36, 2003 NJPER (LRP) Lexis 176, 29 NJPER 174 (N.J. PERC 2003; rptd. 2004).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Handicap Laws / Abilities Discrimination - Accommodation - General

Third Circuit holds that a police sergeant, who for psychological reasons cannot be entrusted with a firearm, is entitled to a reasonable accommodation with a position that does not require him to be armed. The District Court failed to consider whether the plaintiff's inability to carry a firearm would prevent him from performing work in a "class of jobs."

     After being confronted by a superior officer about his fractious interactions with other employees, a Housing Authority police sergeant yelled and made a number of profane and threatening remarks. He was immediately suspended without pay.

     Later that evening, the sergeant called a counselor with a psychological service and talked of "smoking people, going postal, and having the means to do it."

     A police psychologist conducted a fitness for duty examination, and concluded that the sergeant should not resume active duty, unless he is under the proper care of medical and psychological personnel. He noted that the sergeant needed psychological treatment for depression and stress management.

     The psychologist found that the sergeant was fully capable of working in either an administrative or clerical capacity, but should not carry a weapon for a minimum period of three months. He anticipated that the sergeant would be able to fully return to active duty after the three-month period, pending a reevaluation.

     Although the sergeant had requested an unarmed assignment in the training division, after exhausting his sick leave he was terminated. He sued under the ADA. The trial court found that because the sergeant could perform a broad range of jobs, he was not "disabled," and was not entitled to accommodation; the sergeant appealed.

     A three-judge panel reversed. In a case of first-impression, the panel said a person who is "regarded as" disabled also is entitled to an accommodation. They rejected the employer's assertion that only persons who are actually disabled must receive accommodation.

     They noted that the term 'substantially limits' means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities, citing 29 C.F.R. 1630.2(j)(3)(ii)(C).

     They agreed with the District Court that the plaintiff was not precluded from a "broad range of jobs." However, the regulation also protects a person who is prevented from working at a "class of jobs." They added:

     "It is clear from the regulations that, even if one has the ability to perform a broad range of jobs, one is nevertheless disabled if one is significantly restricted in one's ability to perform most of the jobs in one's geographical area that utilize training, knowledge, skills and abilities similar to the job one has been disqualified from performing."

     Because the plaintiff was unable to work as a law enforcement officer without wearing a firearm, his discrimination claim should not have been dismissed. The panel remanded the action for further fact-finding. Williams v. Philadelphia Housing Auth. Police Dept., #03-1158, 380 F.3d 751, 15 AD Cases (BNA) 1607,2004 U.S. App. Lexis 18151 (3rd Cir. 2004). [PDF]

      Click here to view the opinion on the Internet. [PDF]

      Return to the Contents menu.

Last Chance Agreements

While a California city entered into two last chance agreements for first-time violations of the fire department's alcohol and drug use policy, they were specifically labeled as non precedent setting, and future disciplinary action was unaffected by the agreements.

     The California Public Employment Relations Board has rejected an unfair practice charge brought by a firefighter's union. The union claimed that in the last five years, only two firefighters were charged with first-time violations of the alcohol and drug use policy, and that both were offered last chance agreements.

     The Board said, however, in order to demonstrate an unlawful unilateral change, a union must first establish a change in policy or practice. The terms of the last chance agreements specifically provided that the employee and the union acknowledge that each was "a stand-alone agreement" and was "not to be considered precedent setting in any other grievance or litigation."

     Here, the union admitted that it had agreed to the non-precedent setting agreement, but argued that while it could not be used as precedent if the same employee is disciplined again, it nevertheless established a past practice for cases involving other employees.

     PERB said that the union's argument flies in the face of the plain meaning of a last chance agreement. By definition, a last chance agreement is only offered once to an employee. If the same employee violates the city's alcohol and drug policy later, he or she would not qualify for such an agreement, regardless of any precedent.

     The union's unfair practice charge was dismissed. San Francisco Firefighters Union v. City and County of San Francisco, #1611-M, 2004 PERC (LRP) Lexis 70, 28 PERC 120 (Cal. PERB 2004).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Psychological Exams and Standards - EEOC

Federal court in Illinois affirms the right of an employer to administer the MMPI to applicants and promotional candidates, if the "vocational" scoring protocol is used, rather than the "clinical" protocol. The former identifies personality traits; the latter reveals psychological impairments.

     A private sector employer required all persons seeking management positions to submit to a of battery nine separate written tests. One of the exams included in the Management Test was the Minnesota Multiphasic Personality Inventory I (MMPI).

     A suit was filed by an employee, claiming that the administration of the MMPI violated the ADA. The plaintiff maintains that the MMPI is a "medical examination." The employer replied that the MMPI does not meet the EEOC's definition of a "medical examination" and that the ADA prohibition does not apply.

     The EEOC lists seven factors to consider to determine whether a particular test is a "medical examination":

(1) whether the test is administered by a health care professional;
(2) whether the test is interpreted by a health care professional;
(3) whether the test is designed to reveal an impairment or physical or mental health;
(4) whether the test is invasive;
(5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and
(7) whether medical equipment is used.

     The judge said that only one of the seven factors was at issue -- whether the MMPI is designed to reveal mental health impairments.

     Those who argue that the MMPI is a medical examination note that it is a clinical test used by psychologists and psychiatrists. It measures mental impairments such as hypochondriasis, depression, hysteria, psychopathic deviate, paranoia, psychasthenia, schizoid tendencies, and mania. The employer did not dispute that the MMPI is used by medical professionals to aid in mental diagnoses, but claimed it is not a medical exam "because the eight scores are not psychological diagnoses or disorders, but instead they are personality traits found to some extent in almost everyone."

     Different scoring protocols results in different outcomes for the test. A clinical protocol is used to develop impressions of clinically relevant behaviors and symptoms. A personnel or "vocational" scoring protocol looks at personality traits that an employer would want to know.

     The employer in this case used the vocational protocol. The judge wrote:

"Although it is true that the MMPI can be used in a clinical setting, it is clear from the evidence in the record that [the employer] used it solely for the purposes of discerning personality traits of its employees and applicants. ... this test was not interpreted by psychologists with the intent of diagnosing impairments [and] ... it does not qualify as a "medical examination" for purposes of the ADA."

     The court entered a summary judgment for the defendant employer. Karraker v. Rent-A-Center, #02-2026, 316 F.Supp.2d 675, 2004 U.S. Dist. Lexis 8068, 15 AD Cases (BNA) 1000 (C.D. Ill. 2004).

      Click here to view the opinion on the AELE website.

     Editor's Note: The EEOC is unhappy with this case. An EEOC Regional Attorney spoke to the American Bar Assn. and said that the court permitted the employer to use "a highly invasive test and practice psychology without a license." The EEOC attorney noted that the MMPI "includes many questions of a highly private nature and the responses will tend to reveal psychological impairments even using the so called vocational protocol."

     She added an opinion that "non-experts have no business interpreting this test pre-hire (either using the clinical or vocational protocol), post hire or at any other time." -- "Medical Inquiries and Employment References: When Does an Employer Cross the Line?," a paper presented at the ABA Annual Meeting at Atlanta (August, 2004) by Adele Rapport, EEOC Regional Attorney, Detroit, MI.

      Click here for information on the MMPI-2.

      Return to the Contents menu.

Psychological Exams and Standards - Termination vs. Accommodation

Appeals court affirms the firing of a special agent who suffered from psychological disorders. The fact that, in an unrelated decision, her disability pension application was denied because her condition did not affect her ability to perform her duties, was of no consequence. The termination was based on substantial evidence that she was unable to perform adequately as an investigator and could not be reasonably accommodated by the Justice Dept.

     In 1991 the appellant was hired by the INS as a special agent. She was terminated in 1998 for lying under oath, but was reinstated following an appeal.

     She filed a civil lawsuit against three Special Agents in the Office of Inspector General. During the trial her attorney called her treating psychologist who testified that she was diagnosed with several psychological conditions. The U.S. Attorney's Office notified the INS of this testimony, which triggered an investigation that led to her dismissal.

     She filed a grievance. The arbitrator concluded that she was not fit to perform the duties of a criminal investigator or any other job at the INS. He relied on the psychologist's courtroom testimony and that of an expert called by the INS, who testified that her conditions were chronic. The expert said that she suffered from an adjustment disorder with anxious mood, somatization disorder with prominent hypochrondriacal and a personality disorder.

     She then applied for disability benefits. To her horror, the claim was denied. She was told that her condition "is not serious enough to be considered disabling ... and how your condition affects your ability to work." The medical reports considered by the Social Security Administration were after the arbitration decision.

     Although it was noted that she has "occasional episodes of anxiety and depression," the SSA concluded that she had "no permanent mental disorder which would prevent [her] from doing normal daily activities" and that her "condition should not affect [her] ability to work."

     She appealed the arbitrator's decision, and cited the SSA benefits decision that her disability did "not affect [her] ability to work."

     A three-judge appeals court panel distinguished the two rulings. The fact that, after the arbitrator's ruling, the Social Security Administration and the Office of Personnel Management denied her disability benefits claim had no bearing on the propriety of the arbitrator's decision.

     The disability pension decision was based on different evidence and concerned a different period than was under consideration by the arbitrator. More importantly, the appellate court was reviewing the arbitrator's decision and not the pension determination.

     Two wrongs would not make a right. Because the arbitrator's decision was supported by substantial evidence, it must be sustained. Bullock v. INS, #03-3205, 99 Fed. Appx. 890, 2004 U.S. App. Lexis 9030, 15 AD Cases (BNA) 979 (Fed. Cir. 2004).

      Click here to view the opinion on the AELE website.

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Seniority

Productivity vs. Seniority: State labor commission says that while shift assignments are bargainable and arbitrable, public employers have a non-negotiable prerogative to match employees to specific jobs for quality purposes.

     A N.J. police dept. wanted to assign patrol officers to the swing shift based on officer productivity, rather than seniority. The union objected, grieved, and sought arbitration. Management asked the state labor commission to restrain arbitration.

     The Management Rights Clause provided that the employer retains the rights to "determine work schedules and shifts ..." The Seniority Clause provides that "all other things being equal, traditional principles of seniority shall apply to ... shift transfers."

     Management argued that the assignment of swing shift duties was within its managerial prerogative so long as the reason for the assignment was not illegal. The union argued that seniority considerations prevail, absent a need for special skills, qualifications, training, etc. The New Jersey Public Employment Relations Cmsn. said that management's perception of its rights was too broad "and would grant employers per se control over employee work schedules and shift hours absent an illegal reason such as anti-union discrimination."

     Without suggesting the possible outcome, the Commission directed that arbitration follow, noting that a public entity's policymaking powers "would not be substantially limited" by permitting an arbitrator to determine whether the shift changes violated the Seniority Clause. Middletown Twp. and P.B.A. L-124, P.E.R.C. #2004-70, 2004 NJPER (LRP) Lexis 50, 30 NJPER 55 (NJ PERC 2004).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Management did not violate the bargaining agreement when it involuntarily transferred an officer, with the most seniority in the north sector, to the south sector. The CBA provided that seniority should be considered only for unusual shift assignments.

     After a shooting, two officers were reassigned, because the Laredo Police Dept. has a policy of transferring officers who have used deadly force, so that they are less likely to come into contact with friends and relatives of the person shot.

     The grievant said his seniority worked against him, and that "seniority is actually a detriment to an office rather than a benefit." The arbitrator agreed, and said that from a human resources perspective, there was merit to his argument.

     However, it is the duty of an arbitrator to interpret the contract, not to pursue perceived improvements in personnel administration. The grievance was denied, because the transfer was within the management rights clause of the agreement. City of Laredo and Laredo POA, 119 LA (BNA) 1651, AAA #70-390-00787-03 (Moore, 2004).

      Return to the Contents menu.

Uniforms, Clothing and Equipment

Editor's Case Alert

Massachusetts rules that, absent an actual showing of harm, management cannot prohibit uniformed public employees from wearing a union pin. A New York ruling holds that off-duty troopers can wear police union pins when they attend a criminal trial, while off-duty and in civilian clothes.

     A Massachusetts police dept. had a policy that "no buttons, insignia, attachments or coverings of any kind will be worn on the uniform without the permission of the Chief of Police."

     The union president had worn a pin on his uniform for eight years, until the "no pins" order was enforced. An unfair practice charge was filed with the state's Labor Relations Commission.

     The Commission noted that the wearing of union insignia is a right protected by the state labor code, absent just cause to prohibit them. They said:

"Based on the record here, we find that the Town has not met its burden of producing substantial evidence showing that special circumstances exist justifying the Town's prohibition on the wearing of union insignia pins. Instead, the record demonstrates that, for at least eight years prior to March 2000, police officers wore a union insignia pin on their uniforms during working hours."

     They added that there was no showing that pins undermine the safety of officers, create or threaten to create disciplinary problems, interfere with an officer's ability to enforce the law, compromise the neutrality of officers, or interfere with an employer's ability to maintain discipline. Town of Oxford and Mass. Coalition of Police, L-173 AFL-CIO, MUP-2659 (Mass. LRC 2004).

     In New York, a prosecutor objected to the presence of off-duty state troopers who wore their PBA union pin, while sitting in a courtroom in support of an officer who was a criminal defendant.

     Management argued that wearing police pins or insignia loses any statutory protection when they are worn while assisting the defense in front of a jury. An Administrative Law Judge for the New York Public Employment Relations Board disagreed, holding that the state, in its capacity as an employer, "does not have a sufficient role in the administration of justice to regulate off duty protected activities inside a courtroom."

     The Judge said it is the judiciary that bears the ultimate responsibility for ensuring that a jury is not unduly influenced by extraneous factors during a trial.

     The state conceded that off-duty troopers could attend a criminal trial in civilian clothing. The Judge concluded that "the right to wear union insignia while doing so does not lose its protection under the Act [209-a.1(a)]."

     The state was ordered to rescind its directive, which prohibits troopers from wearing union membership insignia while permissibly assisting the defense in a criminal trial conducted before a jury. PBA NY State Troopers and Div. of State Police, #U-24165, 37 NYPER (LRP) 4533, 2004 NYPER (LRP) Lexis 111 (NY PERB 2004).

      Click the link to view the Massachusetts [PDF] and New York opinions on the AELE website.

     Editor's Research Note: Although a private sector case, the U.S. Supreme Court has said that "the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity." Republic Aviation Corp. v. National Labor Relations Bd., 324 U.S. 793, 802 fn.7 (1945), quoting 51 N.L.R.B. 1186, at 1187-1188 (1943). Recently a Massachusetts appellate court held that management must bargain with the union before ordering the removal of union buttons from their uniforms, where officers had worn those buttons for many years without adverse consequences. The bargaining requirement would not apply to non-union pins or accoutrements. Sheriff of Worcester Co. v. Labor Relations Cmsn., #01-P-1628, 60 Mass. App. Ct. 632, 805 N.E.2d 46, 2004 Mass. App. Lexis 284 (2004). We reported the case in the July, 2004 issue.

     A California appeals panel held that a teacher's wearing of a union button in the classroom constituted "political activity," which could be prohibited by management. Turlock Elem. Sch. Dist v. P.E.R.B., #F041187, 5 Cal.Rptr.3d 308, 2003 Cal. App. Lexis 1513 (5th Dist. 2003). The California Supreme Court denied review, but ordered the appellate opinion to be depublished, 2004 Cal. Lexis 455 (2004), which means the case is not precedential in California.

     The Sixth Circuit has upheld the right of uniformed nurses to wear a union-distributed button opposing forced overtime. The panel found that they were engaged in protected activity that did not involve either a slowdown or a work stoppage. Mt. Clemens Gen. Hosp. v. NLRB, #01-2263, 328 F.3d 837, 2003 U.S. App. Lexis 9349, 2003 FED App. 0143P (6th Cir. 2003). [PDF]

     A Federal court in Brooklyn enjoined the N.Y. Transit Authority's ban of union buttons on uniformed employees. Scott v. Goodman, 961 F.Supp. 424 (E.D.N.Y. 1997).

     An Oregon decision allowed uniformed firefighters to wear union buttons on their lapels. IAFF L-1817 v. Jackson Co. Fire Dist. 3, Emp. Rel. Bd. #UP-64-90, 29 (1400) G.E.R.R. (BNA) 139 (12/17/90).

     The Federal Labor Relations Service has ruled that immigration inspectors can wear a union pin on their uniforms, contrary to INS regulations. Immigration and Nat. Service, San Ysidro, Cal. and I.N.S. Serv. Council AFGE, L-2805, AFL-CIO, #8-CA-50544, 25 F.L.R.A. 447, 1987 FLRA Lexis 711, 25 FLRA No. 30 (1987).

     In another private sector case, the National Labor Relations Board recently affirmed an ALJ decision overturning an employer's ban on union stickers affixed to employee lockers, where "hundreds of other stickers were permitted on the lockers." The prohibition "interfered with, restrained and coerced its employees in the exercise of their right to communicate with each other about the benefits of union representation," in violation of 8(a)(1). Mammoth Mountain Ski Area and Int. Union of Oper. Engineers, L-12, #32-CA-20513-1, 2004 NLRB Lexis 457, 342 NLRB No. 80 (2004).

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NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Punishment Awards - Right of Courts to Interfere

     Michigan appellate court refuses to set aside an arbitrator's decision to reduce the punishment from demotion from corporal to a one-day suspension. The officer did not follow agency policy relating to a DUI traffic stop. Clay Twp. v. Montville, #248293, 2004 Mich. App. Lexis 1635 (2004). [PDF]

Bargaining Unit Determinations

     The Florida Public Employees Relations Cmsn. has determined that a bargaining unit of civilian communications officers and sworn law enforcement officers was appropriate for bargaining purposes. Palm Beach County v. Town of Jupiter, #RC-2004-029, Order #04E-175, 30 FPER 177, 2004 FPER (LRP) Lexis 183 (Fla. PERC 2004).

Bill of Rights Laws

     California appellate court holds that the state's Public Safety Officers Procedural Bill of Rights Act does not apply to a criminal investigation conducted by an outside agency. Moreover, where a police officer avoids the severe penalty of dismissal by entering into a settlement agreement and accepts lesser discipline, he cannot seek a remedy under the Public Safety Officers Procedural Bill of Rights Act to avoid that discipline. Alhambra Police Officers Assn. v. City of Alhambra, #B160896, 113 Cal. App. 4th 1413, 7 Cal.Rptr.3d 432 (2003); review denied, 2004 Cal. Lexis 2852 (2004). [PDF]

Collective Bargaining - Duty to Bargain

     Massachusetts Labor Relations Cmsn. decides that a city is required to bargain over changes to its "Paid detail system" of selecting outside employment assignments. City of Boston and Boston Police Patrolmen's Assn, No. MUP-1758 (MLRC 2004).

     Illinois Labor Relations Board agrees with a police union that a change in parking fees for employees is a mandatory subject of bargaining, because it affected the terms and conditions of employment and did not involve matters of inherent managerial authority. Illinois FOP Labor Council v. Bd. of Trustees, Univ. of Illinois, #S-CA-02-038, 20 PERI 84, 2004 PERI (LRP) Lexis 68 (Ill. Lab. Bd. 2004).

     California Court of Appeal holds that, to remedy a short-term staffing shortage, a city can hire retired police officers, and does not have to bargain that issue with the union. Sacramento Police Officers Assn. v. City of Sacramento, #C042493, 117 Cal. App. 4th 1289, 174 LRRM (BNA) 3085 (3rd App. Dist. 2004). [PDF]

     Arbitrator holds that a transit authority violated the bargaining agreement when it unilaterally changed the workweek of certain employees from four 10-hour days to five eight-hour days. Bi-State Devel. Agency and ATU L-788, FMCS #041211/02174-7, 119 LA (BNA) 1588 (Pratte, 2004).

Disciplinary Hearings - Tenured/General

     New Jersey appellate court invalidates a process where a senior ranking state police officer sits as a disciplinary hearing examiner. Because of the danger of "command influence in a paramilitary organization," the state's administrative procedure law must be followed, and cases heard by an independent administrative law judge. New Jersey Div. of State Police v. Maguire, #A-4922-02T3, 847 A.2d 614 (N.J. App. Div. 2004).

Disciplinary Offenses - In General

     Mississippi sheriff's deputy, who was fired because he was a "liability risk" loses a court challenge to his termination. He was terminated because he precipitated two lawsuits and the insurance carrier threatened not to renew the county's professional liability policy. Burleson v. Hancock Co. Sheriff's Dept., #2002-CC-00411, 872 So.2d 43, 2003 Miss. App. Lexis 1063 (2003); cert. denied 2004 Miss. Lexis 467 (2004); U.S. Sup. Ct. cert. petit. filed, #04-180 (8/3/2004). [PDF]

Disciplinary Procedures - Delays & Time Limits

     New Jersey appellate court holds in two cases that disciplinary charges should not be dismissed because the hearings were not held within the 30-day period provided by law. Where the officers were not prejudiced and the delay is not a contrivance, neither the bargaining agreement, state statutes, nor case law compel the dismissal of the charges. Goodman v. Dept. of Corrections, #A-2123-02T5, 844 A.2d 543 (NJ App. Div. 2004); and In the Matter of the Arbitration Between FOP L-97 and Gloucester County Sheriff's Office, # A-1862-02T2, 364 N.J. Super. 294, 835 A.2d 687 (N.J. Super. 2003).

E-Mail/Internet - Legal Issues

     The Texas Attorney General has written an official opinion that neither the federal E-Sign Act nor the Uniform Electronic Transactions Act requires a public official to accept documents containing a printed copy of an electronic signature or notary seal. Neither act imposes a duty upon public officials to accept electronic signatures. Texas Attorney General Opinion No. GA-0228 (2004). [PDF]

Family and Medical Leave

     Sixth Circuit holds that for purposes of the hours-of-service eligibility requirement under the FMLA, an arbitrator's restoration award may include the time that an employee would have worked, but for the employer's wrongful termination. Ricco v. Potter, #03-3294, 377 F.3d 599, 9 WH Cases2d (BNA) 1455, 2004 U.S. App. Lexis 15425, 2004 FED App. 0242P (6th Cir. 2004).

First Amendment Related

     Appellate court affirms the dismissal of a police sergeant's First Amendment suit for retaliation, based on the his testimony at a public hearing, because the content of testimony was not a matter of public concern. Kirby v. City of Elizabeth City, #03-2035, 2004 U.S. App. Lexis 17877 (4th Cir. 2004). [PDF]

     New Jersey appellate court affirms an order by the state's Public Employment Relations Cmsn. directing the sheriff to cease and desist from reassigning and suspending a deputy in retaliation for his questioning negotiations unit members about drug testing. The disciplinary actions taken constituted an unfair practice because of the sheriff's hostility to his inquiries. Middlesex Co. Sheriff v. Eckel, #A-57-02T2, 30 NJPER 89, 2004 NJPER (LRP) Lexis 84 (N.J. App.Div. 2004); prior decis. Eckel v. Middlesex Co. Sheriff, 2003 WL 2367588 (N.J. App.Div. 2003).

     Eighth Circuit finds that having a prayer session at a mandatory training program was a decisive endorsement of religion, and violated the First Amendment rights of a public employee who objected to the prayers. The appeals panel directed the trial court to widen the injunctive relief to include training sessions of other public employees, even if the plaintiff was not present. "...we believe that it is the government's endorsement of a particular religious message that constitutes the constitutional violation here, not the effects of official prayers on [the plaintiff's] psyche. Warnock v. Archer, #02-3322, 2004 U.S. App. Lexis 17938 (8th Cir. 2004).

Funding Disputes & Reimbursement for Services

     Ohio appellate court holds that a sheriff's statutory duty to preserve the peace and enforce the law does not require the county commission to adequately fund a road patrol division. Any funding determination was solely within the commissioners' discretion and the burden of persuasion falls on the sheriff to establish that the appropriations are unreasonable, even as to the sheriff's mandatory duties under the statutes. Geauga County Bd. of Cmsnrs. v. Geauga Co. Sheriff, #2002-G-2484, 2003 WL 23100323, 2003 Ohio 7201, 2003 Ohio App. Lexis 6508 (Ohio App. 11th Dist. 2003; rptd. 2004).

Handicap Laws / Abilities Discrimination - Accommodation - General

     MSPB holds that under the Rehabilitation Act, a public employer is entitled to request additional medical information from a disabled employee and his or her physician, to determine what accommodation is necessary. If that information is not forthcoming, separation for medical reasons is proper. Madison v. Rumsfeld, EEOC Petition No. 03A40105, MSPB No. DA-0752-02-0095-I-2, 2004 EEOPUB Lexis 4377.

Holiday and Premium Pay

     FLRA decides that an employee who was otherwise entitled to premium pay for working holidays and Sundays was not entitled to supplemental compensation when he attended a conference in his capacity as a labor union official. Engaging in representational activities does not constitute the "work" of the agency, and was not compensable under federal premium pay regulations. FAA and NATCA, #0-AR-3734, 2004 FLRA Lexis 89, 60 FLRA No. 7 (2004).

Jurisdictional/Multiunion Disputes & Work Erosion

     New York Public Employment Relations Board holds that a sheriff had no duty to bargain with the correctional officers' union over the transfer of some duties to part-time transport officers who were not part of the bargaining unit. Corrections Officers PBA and Rockland Co. Sheriff, #U-23897, 37 NYPER (LRP) 4554, 2004 NYPER (LRP) Lexis 127 (NY PERB ALJ 2004).

Past Practices, Precedents & Zipper Clauses

     New York Public Employment Relations Board concludes that take-home police cars are an economic benefit, which cannot be removed absent bargaining -- but only when it is a recognized past practice. The union failed to demonstrate the existence of a past practice. Superior Officers' Assn. of Nassau Co. Police Dept. and Co. of Nassau, #U-23900, 37 NYPER (LRP) 3014, 2004 NYPER (LRP) Lexis 79 (NY PERB 2004).

Sexual Harassment - In General

     Because the State Police had a written anti-harassment policy and took prompt remedial action after a dispatcher alleged that a sergeant had touched her, the agency was not liable. McCurdy v. Arkansas State Police, #03-3058, 375 F.3d 762, 2004 U.S. App. Lexis 15277 (8th Cir. 2004). [PDF]

Transfers - Non Disciplinary/Punitive

     Seventh Circuit says that "a transfer does not become an adverse employment action solely because the employee subjectively prefers one position over another." The plaintiff's transfer out of the detective division was at the same pay and benefits. McKenzie v. Milwaukee Co., #03-4136, 2004 U.S. App. Lexis 17866, 94 FEP Cases (BNA) 532 (7th Cir.2004). [PDF]

Whistleblower Requirements and Protection

     The filing of in internal grievance was not a "report" within the meaning of the Texas Whistleblower Act, which prohibits taking adverse personnel action against a public employee who in good faith reports a violation of law. A divided appellate court rejected the appeal of a sergeant's demotion. County of Bexar v. Steward, #04-03-00580-CV, 139 S.W.3d 354, 21 IER Cases (BNA) 677, 2004 Tex. App. Lexis 4249 (4th App. Dist. 2004).

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RESOURCES

     Antiterrorism -- Skymarshal Program: Dept. of Homeland Security, Office of Inspector General, "Evaluation of the Federal Air Marshal Service," August 2004, 56 pages, PDF format). The report chronicles how federal air marshals have slept on the job, tested positive for alcohol or drugs while on duty, lost their weapons and falsified information.

     Domestic Partner Rights: Article, "The Impact of Same-Sex Marriage on the Workplace," Nixon Peabody newsletter. [PDF]

     Privacy - HHS Guidance: "The confidentiality of alcohol and drug abuse patient records regulation and the HIPAA Privacy Rule: Implications for alcohol and substance abuse programs."

     Whistleblower Procedures: Dept. of Labor, "Handling of discrimination complaints under sec. 806 of the Corporate and Criminal Fraud Accountability Act of 2002," Final Rule 69:52103-52117

     Worksite Safety: "Principal Emergency Response and Preparedness Requirements and Guidance," OSHA document 3122-06R (2004). [PDF]

Reference:

      Abbreviations of Law Reports, laws and agencies used in our publications.
      AELE's list of recently noted employment law resources.  
      Discrimination Laws plus EEOC Regulations and Policy Guidance

CROSS REFERENCES

Featured Cases:

Coll. Barg. / Duty to Bargain - see: Firearms - and - Uniforms

Past Practices Clauses - see: Last Chance Agreements

Transfers - see: Seniority (Laredo case)

Noted in Brief:
Civil Liability - see: Disciplinary Offenses

Disciplinary Punishment - see: Arbitration / Right of Courts to Interfere

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