Employment & Labor Law for Public Safety Agencies

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Reductions in Force

     Monthly Law Journal Article: Public Sector Layoffs, Part One, 2009 (6) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Public Sector Layoffs, Part Two, 2009 (7) AELE Mo. L. J. 201

   A police dispatcher was laid off by a town. A collective bargaining agreement gave him a right to be recalled for 12 months, but he was not recalled. A federal appeals court found that his procedural due process claim, that he had been deprived of his constitutionally protected right to be recalled, was viable. The bargaining agreement vested recall rights in individuals laid off and provided the employer with no discretion on rehiring qualified individuals with the required seniority. The claim, which was uncontested, that he received no notice before or after he was deprived of a protected property interest in employment was sufficient to assert a procedural due process claim. Neither a state law breach of contract lawsuit nor the available grievance procedures were adequate to fully address the alleged injury. Clukey v. Town of Camden, #12-1555, 2013 U.S. App. Lexis 1018 (1st Cir.).
     An Illinois state labor relations board's decision that a consolidation of training districts for probationary police officers was not a mandatory subject for collective bargaining was upheld by an intermediate state appeals court. The city's failure to bargain over the issue was not an unfair labor practice. The city had an inherent right to adopt the most efficient method of training new police recruits. Any benefit that would come from bargaining over the question was outweighed by the possible burden it would place on the city's managerial authority. Fraternal Order of Police v. Illinois Labor Relations Board, #1-10-3215, 2011 Ill. App. Lexis 1196; 2011 IL App (1st) 103215.
     A newly elected mayor found that the city's employees had swollen in number during the administration of the previous mayor, a member of a different political party. Because the city now had a $7.2 million annual deficit, with 82% of its budget spent on salary and benefits, he made personnel cuts. In a lawsuit by 61 terminated employees, he was accused of due process violations and political discrimination. An appeals court ruled that these claims failed because the personnel reductions were carried out under a validly enacted ordinance as a bona fide reduction in force for legitimate financial reasons. The selection of those who were terminated was not based on their political affiliations. As for the due process claim, pre-termination hearings "are not required by due process where a bona fide government reorganization plan bases dismissals on factors unrelated to personal performance." Rodriguez-Sanchez v. Municipality of Santa Isabel, #09-2635, 658 F.3d 125 (1st Cir. 2011).
      While the adoption by California of a three-day-per-month furlough program for state employees reduced the pay of members of the California Correctional Peace Officers Association, this was within the authority of the state legislature in revising the state budget, and did not violate state labor or government codes or the state's minimum wage law. A trial court award of back pay for the officers was therefore reversed. Brown v. Superior Court, #A127292, 2011 Cal. App. Lexis 1259 (1st Dist.).
    After the L.A. City Council approved a 26-day annual work furlough as an austerity measure, a union demanded arbitration. A three-judge appellate panel holds that "any agreement to arbitrate the issue of furloughs would constitute an improper delegation of discretionary policymaking power vested in the City Council." City of L.A. v. Superior Court (Engineers), #B228732, 2011 Cal. App. Lexis 354.
     After the L.A. City council approved a 26-day annual work furlough as an austerity measure, a union demanded arbitration. A three-judge appellate panel holds that "any agreement to arbitrate the issue of furloughs would constitute an improper delegation of discretionary policymaking power vested in the City Council City of L.A. v. Superior Court (Engineers) #B228732, 2011 Cal. App. Lexis 354.
     A California city is not required to bargain with the firefighters' union before deciding that firefighters must be laid off as a cost-saving measure. "A public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." IAFF L-188 v. PERB (City of Richmond), #S172377, 2011 Cal. Lexis 516.      After a bargaining agreement expires a town may give notice that it no longer intends to be bound by a minimum workforce requirement. The town has a duty to bargain over the issue, but a reduction of the workforce is "arbitrable only insofar as the decision to reduce the workforce affects hours, wages, and other terms and conditions of employment of the remaining employees." Town of North Providence v. Drezek, #PC-09-5835, 2010 R.I. Super. Lexis 98, 188 LRRM (BNA) 3118.
     Arbitrator rejects a grievance interpreting a clause in a CBA that provides that other city employees must be laid off before police officers. City of Wellston (Ohio) and FOP Ohio, FMCS #030411-08835-6 (Byrne, 2010).
     In a case involving bumping rights due to employment layoffs, an Ohio appellate court concludes that provisions of a collective bargaining agreement prevail over conflicting laws, rules and regulations of a chartered municipality. Zupp v. Civil Serv. Cmsn. for City of Columbus, #09AP-895, 2010-Ohio-2614, 2010 Ohio App. Lexis 2157 (10th Dist.).
     Five-judge appellate panel concludes that a no-layoff clause in a bargaining agreement is not subject to any prohibition against arbitration. A New York municipal fire dept. did not violate public policy by voluntarily including a reasonable job security provision in a bargaining agreement that lasted only three years. Johnson City Prof. Firefighters L-921 and Vil. of Johnson City, #507278, 2010 N.Y. App. Div. Lexis 2825 (3rd Dept.).
     Federal appeals court overturns a trial court holding that the "Contract Clause" in the U.S. Constitution prevented management from posing a furlough of 80 hours per year on all county employees. There are three issues when deciding on the enforceability of an arbitration clause: (1) whether there has been an impairment of the contract or bargaining agreement; (2) whether that impairment was substantial; and (3) if so, whether the impairment was nonetheless a legitimate exercise of the police power. FOP L-89 v. Prince George's County, #09-2187, 2010 U.S. App. Lexis 12871 (4th Cir.).].
     Federal judge grants a preliminary injunction against planned layoffs, wage reductions and a benefits freeze for thousands of New York state workers. The legislature violated Art. 1 §10 of the U.S. Constitution, the "Obligation of Contracts Clause." Donohue v. Patterson, #1:10-CV-00543, PACER Doc. 29; prior T.R.O. at 2010 U.S. Dist. Lexis 50733 (N.D.N.Y. 2010).
     N.Y. appellate court enforces a no-layoffs clause in a firefighters’ contract. Village of Johnson City and Firefighters Assn. L-921, #507278, 2010 NY Slip Op 2890, 2010 N.Y. App. Div. Lexis 2825 (3rd Dept.).
     A mandatory reduction in the total hours worked by public employees is the same whether achieved by a reduction in the number of hours worked imposed on all employees or a layoff of only some employees. California Attorneys v. Schwarzenegger, #A125292, 2008 Cal. App. Lexis 355 (1st Dist.).
     Superior court overturns Gov. Schwarzenegger's two-day per month furlough for state workers, as applied to correctional officers. As implemented, the executive order diminished their compensation without a corresponding decrease in work periods. Calif. Corr. POA v. Schwarzenegger, Alameda Co. Super. Ct. #09-441544.
     Federal court overturns an employer-imposed furlough plan that reduced the work hours of all covered employees by 80 in FY-2009, reducing the annual salaries of those employees by 3.85%. “The Framers of the Constitution drafted the Contract Clause (U.S. Const. art. I, §10, cl. 1.) based on the concern that state governments might enact legislation to alter, relax or unilaterally modify contractual obligations.” FOP v. Prince George’s Co., #AW-08-2455, 2009 U.S. Dist. Lexis 72810 (D.Md.).
     California appellate court holds that a municipality's decision to lay off firefighters is not a mandatory subject of bargaining, although the effects of a layoff decision, such as workload and safety concerns, are negotiable. IAFF L-188 v. PERB (Richmond), #A114959, 2009 Cal. App. Lexis 373 (1st Dist.).
Ninth Circuit rejects a union claim that employee layoffs violated the National Labor Management Relations Act. A county is not an employer; the NLRA excludes as states and political subdivisions. Int. Union of Oper. Engineers v. Co. of Plumas, #07-16001, 2009 U.S. App. Lexis 5822 (9th Cir.).
     Bankruptcy court rules that a city has the authority to void its existing union contracts in its effort to reorganize. Public workers lack the protections of union workers for private companies. In re City of Vallejo, Calif., #08-26813, Memorandum decision (PACER Doc. 473); Findings of Fact & Conclusions of Law (E.D. Cal. 2009).
    Arbitrator finds that a city violated the bargaining agreement when it hired a new part-time police officer rather than recall an officer who had been laid off three years earlier, even though the CBA provided that an employee?s right to recall ends 12 months after he has been laid off. City of Frankfort and P.O.A. of Michigan, 124 LA (BNA) 381 (Mackraz, 2007).
     A police officer that was furloughed for economic reasons is not entitled to a Loudermill type hearing because his removal was non disciplinary. Lohman v. Duryea Borough, #3:05-CV-1423, 2007 U.S. Dist. Lexis 87720 (M.D. Pa.).
     Non permanent federal employees, that are not protected by civil service laws, are not entitled to the protections afforded permanent employees in a workforce reduction under 38 U.S. Code §7405. Bouchard v. Dept. of Veterans Affairs, Docket #AT-3443-06-0636-I-1, 2007 MSPB 63(2007).
     Federal court holds that if a Pennsylvania Borough dissolved its police force in bad faith, affected officers would be entitled to a termination hearing. Baker v. Bor. of Port Royal, #1:CV-06-0932, 2006 U.S. Dist. Lexis 77198 (M.D. Pa. 2006). {N/R}
     The Illinois Labor Relations Board?s General Counsel agrees that a city can reduce the number of fire captains after a retirement, but must bargain with the firefighters? union over the impact of the decision. Effingham Fire Fighters Assn., L-3084 and City of Effingham, #S-CA-03-144, 21 PERI 11, 2005 PERI (LRP) Lexis 8 (2005). (N/R}
     Federal appeals court holds that public employees who are furloughed for economic reasons are entitled to a Loudermill hearing, if they are selected for reasons of job performance rather than seniority. Whalen v. Mass. Trial Court, #04-1976, 397 F.3d 19, 2005 U.S. App. Lexis 1829 (1st Cir. 2005). [2005 FP Apr.]
     Although some courts have found that pre-termination hearings are unnecessary in the case of financial layoffs, they have underscored the importance of adequate post-termination reviews for furloughed employees. Finding that the county?s post-termination procedures lacked minimal standards of due process, the appellate court affirmed a national origin discrimination claim and remanded the case for the assessment of damages. Lalvani v. Cook County, #03-1922, 396 F.3d 911, 2005 U.S. App. Lexis 1716 (7th Cir. 2005). {N/R}
     Pennsylvania court blocks elimination of eight fire companies in Philadelphia. Management must bargain with the union on fiscal cuts that affect firefighter and public safety. Philadelphia Fire Fighters Union, L-22, v. City of Philadelphia, 2004 No.3755 (Cm.Pls. 2004). [2004 FP Dec]
     Court holds that only seniority within the affected department is relevant for reductions in force, unless layoffs are citywide. Town of East Hartford v. CSEA-MEU L-760 SEIU, CV#040830663S, 2004 Conn. Super. Lexis 1274 (Unpub. 2004). {N/R}
     Arbitrator holds that a city did not violate the bargaining agreement which stated that a ?normal? work week was 40 hours, when it reduced the grievant?s hours to 30. Use of term ?normal? does not prevent a city from reducing hours because of budgetary shortfalls. City of Coquille and Teamsters L-206, 119 LA (BNA) 762 (Hoh, 2004). {N/R}
     Federal court refuses to enjoin the Dept. of Homeland Security for reducing its force of airport screeners. Furloughed former screeners lacked standing to seek an injunction because they had already been laid off and could not face additional harm from a further force reduction. AFGE, TSA L-1 v. Loy, #03-1719 & 03-0043, 281 F.Supp.2d 59, 2003 U.S. Dist. Lexis 15750, 173 LRRM (BNA) 2358; AFGE, TSA L-1 v. Loy, #03-0043, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003). {N/R}
     Arbitrator reinstates all fulltime dispatchers, where the entire unit was furloughed for fiscal reasons, but only two police officers and two firefighters were laid off. Because the officers assigned to replace the dispatchers earned more, there was no financial justification for singling out the dispatchers for furlough. City of Fostoria, Ohio and Ohio PBA Dispatchers Unit, 117 LA (BNA) 1093, AAA Case #53-L-390-001712 (Lalka, 2002). [2003 FP Mar]
     Arbitrator orders a sheriff to rehire three deputies who were laid-off for financial reasons. The county commissioners failed to justify a budget cut, and sheriff was using special deputies to replace the work performed by laid off bargaining unit members. Jackson Co. Sheriff and FOP, FMCS Case #01/16348, 116 LA (BNA) 1753 (Kindig, 2002). [2002 FP Sep]
     Arbitrator rules that a county violated the bargaining agreement, by assigning bargaining-unit work to a non-unit employee in order to lay off two unit employees, and redistributing those job duties to non-unit employees. Lawrence County and C-8, AFSCME L-3319, FMCS #00/14501 & 00/14499, 115 LA (BNA) 789 (Imundo, 2001). {N/R}
     U.S. Supreme Court declines to hear the appeal of a state employee who was furloughed, supposedly for funding reasons, when the true reason was lack of work. Lower court said that the law does not require that an employee be given reason for his furlough if it is for a valid reason. McAndrew v. Penn. Civil Serv. Cmsn., #3118 C.D. 1998, 736 A.2d 26, 1999 Pa. Commw. Lexis 695; cert. den. #00-1521, 69 L.W. 3754 (2001). {N/R}
     California appeals court holds that a predeprivation hearing is not required for a demotion or termination for economic reasons. Duncan v. Department of Personnel Administration), #B129036, 77 Cal.App.4th 1166, 2000 Cal. App. Lexis 60, 92 Cal.Rptr.2d 257, 15 IER Cases (BNA) 1753. [2000 FP 69]
     California city department head wins suit against the city council for cutting the budget below that which is necessary to perform the legal mandates of the agency. Scott v. Common Council, City of San Bernardino, 52 Cal.Rptr.2d 161, 44 Cal.App.4th 684, 1996 Cal.App. Lexis 339. [1996 FP 125]
     Bargaining agreement requiring layoffs of deputy sheriffs by seniority was unenforceable, where state law provides that deputies serve at the pleasure of the sheriff, and department manual permits layoffs by performance appraisals. Webb Co. and C.L.E.A.T., 103 LA (BNA) 446 (McKee, 1994). {N/R}
     City could not downsize a fire station and replace its firefighters and truck with an engine company from another department under a mutual aid agreement. Reno, City of and I.A.F.F. Local 731, 101 LA (BNA) 126 (1993). [1994 FP 116]
     Statute authorizing layoffs of public employees by financially distressed cities superseded their collective bargaining agreements. Wilkinsburg POA v. Cmwlth. of Penn., 636 A.2d 134 (Pa. 1993). [1995 FP 27]
     Police chief, acting on mayor?s instruction, could lay off an officer for fiscal reasons, without approval of the civil service authority. Hahn v. City of Harvard, 605 N.E.2d 95 (Ill.App. 1992). [1993 FP 93]
     County could lawfully abolish its police force by withdrawing funding. Fiscal Court v. Taylor Co. Police, 805 S.W.2d 113 (Ky. 1991). See also: O?Mahony v. Chicago Transit Auth., 779 F.2d 54 [unpubl.], cert. den. 106 S.Ct. 1516 (1986); Brownstone Twp. v. Co. of Wayne, 242 N.W.2d 538 (Mich.App. 1976); Christiansen v. Casey, 428 N.Y.S.2d 317 (A.D. 1980). [1992 FP 60]
     New York court refuses to intervene in the closing of a fire station, notwithstanding a judicial concern for the inadequate protection of the residents. Richmond Hill Block Assn. v. Dinkins, 567 N.Y.S.2d 584 (Sup. 1991). [1992 FP 61]
     California appellate court sets aside an agency?s decision to reduce to half-time, a classified position in the employ of that agency?s civil service commission; only the commission itself has that power. Personnel Cmsn. v. Bd. of Educ., 223 Cal.App.3d 1463, 273 Cal.Rptr. 288 (1990); 266 Cal.Rptr. 46 vacated.
     Appellate court upholds use of supervisor ratings to determine order of layoffs necessitated by financial considerations. Fact that some supervisors were not themselves proficient at the skills they rated was not determinative. In re Civil Serv. Cmsn. Layoff Investigation (Collongues), 546 So.2d 523 (La.App. 1989).
     City council is immune from lawsuit by a lieutenant who was demoted for ?budgetary reasons? and who alleged the real reason for this demotion was his criticism of departmental racism. Herbst v. Daukas, 701 F.Supp. 964 (D. Conn. 1988).
     Reinstated fire and police personnel, laid off during fiscal crisis, do not receive seniority credit for lay-off periods. McKechnie v. Ortiz, 518 N.Y.S.2d 134, 132 A.D.2d 472 (1987).
     Union had no duty to ?forcefully? contest layoffs; no breach of ?duty of fair representation? found. NAACP v. Detroit Pol. Ofcrs. Assn., 821 F.2d 328 (6th Cir. 1987).
     Dept. could demote certain supervisors for fiscal reasons, on the basis of a competitive exam and performance ratings (instead of seniority). Young v. Williamson, 497 N.E.2d 612 (Ind.App. 1986).
     Appellate court upholds demotions and layoffs of 181 New Orleans firefighters. Pretermination and predemotion hearings not required. City could integrate service ratings with seniority. New Orleans Assn. of Firefighters, L-632 v. Civil Serv. Cmsn., 495 So.2d 958 (La. App. 1986).
     City required to bargain over termination of firefighters and contracting with private fire suppression company. Int. Assn. of Firefighters L-1445 v. City of Kelso, 2 Labor Lawyer (ABA) 588, 23 G.E.R.R. (BNA) 222.
     Transportation authority could abolish its security force; no due process violations. O?Mahony v. Chicago Transit Auth., (7th Cir., U.S. Ct. App. #85-1609 unpub.), cert. den., 106 S.Ct. 1516 (1986).
     City could abolish desk officer position and replace it with a civilian clerk. Ryman v. Reichert, 604 F.Supp. 467 (S.D. Ohio 1985).
     Financial constraints justify lay-offs, but not demotions; Michigan city could not reduce lieutenant to firefighter. Greenslait v. City of Taylor, 358 N.W.2d 30 (Mich. App. 1984); Cleveland Police Patr. Assn. v. Voinovich, 15 OhioApp.3d 72, 472 N.E.2d 759 (1984).
     Modest financial layoffs are lawful and do not paralyze police operations. Mcnea v. Voinovich, 70 Ohio St.2d 117, 435 N.E.2d 420 (1982).
     Ohio appellate court upholds right of city to lay off fire and police personnel for economy reasons. Atwood v. Judge, Director, 409 N.E.2d 1022, 63 OhioApp.2d 94.
     No hearings necessary in financial layoffs. Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. 1981).
     Fiscal layoffs must exclude minority firefighters and police officers in areas where past discrimination is evident. Castro v. Beecher, 522 F.Supp. 873, 27 FEP Cases (BNA) 1195 (D. Mass. 1981), aff?d 679 F.2d 965 (1st Cir. 1982); see also Brown v. Neeb, 523 F.Supp. 1, aff?d 644 F.2d 551 (6th Cir. 1981).
     City can close station and lay off personnel. Christiansen v. Casey, 428 N.Y.S.2d 317 (A.D. 1980).
     Furloughed employees not entitled to hearing. Almy v. Bor. of Wilkinsburg, 416 A.2d 638 (Pa. Cmwlth. 1980).
     Reviewing court in New York declines to ?second guess? city council ordered layoffs during austerity program. Abbott v. City of Poughkeepsie, 414 N.Y.S.2d 458 (Misc. 1979).
     Cities not required to give preferential rehiring status to former officers or firefighters, hired under federal funds, and laid-off when funds expired. Ragner v Zielke, 273 N.W.2d 304 (Wis. 1979).
     City?s right to make economic furloughs upheld. Brookman v. Johns, 405 A.2d 1081 (Pa. Cmwlth. 1979).
     City cannot abolish chief?s job for alleged economic reasons as retaliation for labor union activities. Borough of Canonsburg v. Flood, 387 A.2d 951 (Pa. Cmwlth. 1978).
     County legislators (Bd. of Supervisors) could not use the budget process to transfer 22 investigators from the District Attorney?s Office to the Sheriff?s Dept. The transfer prevented the D.A. from performing the legal mandates of his office. Hicks v. Bd. of Supvsrs., 69 Cal.App.3d 228 (1977). {N/R}
     Termination hearing for economic reasons unnecessary. Smith v. City of Houston, 552 S.W.2d 945 (Tex.Civ.App. 1977).
     Reasons of economy defined in layoff case. Genes v. City of Duquesne, 367 A.2d 327 (Pa.Cmwlth. 1976).
     Pennsylvania court rules that municipalities cannot reduce work force without statutory authority; firemen reinstated. Bauer v. Peters, 331 A.2d 245 (Pa.Cmwlth. 1975).
     New York court rules that cities have inherent right to reduce size of work force; collectively bargained agreement prohibiting force reductions is illegal and unenforceable. Schwab v. Brown, 363 N.Y.S.2d 434, 436 (Misc. 1975).
     New York courts rule city can institute economic furloughs in violation of collectively bargained contract. In the Matter of Burke v. Bowen, 373 N.Y.S.2d 387 (A.D. 1975); Schwab v. Bowen, 363 N.Y.S.2d 434 (A.D. 1975); Lippman v. Delaney, 370 N.Y.S.2d 128 (A.D. 1975).
     Arbitrator requires Detroit fire department to fill supervisory posts by promotion; economic conditions do not justify promotional freeze. Detroit Firefighters Assn., IAFF L-344 and City of Detroit, AAA Cases 54-39-0651-75 and 54-39-0849-75 (Casselman, Nov. 18, 1975).
     Abolition of paid positions discussed: Blystone v. Bor. of Forest Hills, 349 A.2d 494 (Pa. Cmwlth. 1975).
     Hearing and appeals discussed. State ex rel. Dean v. Huddle, 341 N.E.2d 860, 45 OhioApp.2d 163 (OhioApp. 1975).

     See also: Contracts and Consultants; Seniority.

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