The International Union of Police Associations (IUPA), AFL-CIO, this month announced that the Dallas Police Association (DPA) membership has voted to affiliate with the national group. The DPA affiliation marks the second major city police association to join the IUPA in the last six months. Last December, the IUPA gained the members of the Los Angeles Police Protective League, the bargaining agent for LAPD officers below the rank of captain. The affiliation means that officers in three of the ten largest cities now recognize IUPA as their primary labor organization. The Houston Police Officers Union (HPOU) is also a local of IUPA. IUPA affiliates are the bargaining unit or primary union in three of the ten largest cities, besting the Fraternal Order of Police, which bargains for officers in two of the top ten cities.
The move of the DPA to IUPA was approved by a 62.5 percent vote margin
on April 8. DPA adds
about 3,500 active and retired police officers to the rolls of the IUPA.
Founded in 1959, the previously independent DPA recently has been a member
of the National Association of Police Organizations (NAPO). For a short
period, DPA had a loose relationship with the Combined Law Enforcement Associations
of Texas.
Dallas officers do not enjoy collective bargaining rights but the DPA membership is currently campaigning on behalf of a wage increase referendum that is scheduled for voter consideration in May.
Unclear at this time is the fate of the Dallas Police Patrolmen's Union, the IUPA local that was formed some years ago as an alternative to the DPA. In 1999 when the HPOU joined IUPA, the national union withdrew the charter of the Houston Police Patrolmen's Union (HPPU). Maintenance of two IUPA locals in Dallas seems unlikely.
A year after the fatal shooting of an unarmed black man led to rioting in Cincinnati, the city, community interest groups, the American Civil Liberties Union (ACLU), the U.S. Attorney General, and Lodge 69 of the Fraternal Order of Police (FOP) have reached a tentative settlement in a civil rights suit that accuses the police department of harassing blacks based on their race. Meanwhile, FOP officials said the lawsuit's allegations of racial profiling were untrue.
"We don't do it, we haven't done it, we never will do it," said FOP lodge president Roger Webster about the racial profiling allegations. The FOP signed the deal, however, to have a voice in shaping policy changes that are required under the agreement.
According to details released by the U.S. Department of Justice, the police
department will revise its use of force policy and increase use of force
training. Among the changes are prohibitions against
chokeholds and a requirement of supervisor approval prior to using a police
canine off leash. The department will also acquire less-than-lethal devices
such as beanbag guns. Enhanced investigation of use of force incidents will
also be required as well as a streamlined complaint system. An independent
monitor will be appointed to review compliance. The federal supervision
may last as long as five years.
"Our priority is to fix the problem, not fix the blame. Our mission was to identify areas of opportunity for immediate reform and remediation," said Attorney General John Ashcroft. "In one year's time Cincinnati has been transformed from a city of division to a city of reconciliation."
"There is nothing in the agreement we cannot live with," the FOP's Webster said. He added that he expects record-keeping of police-citizen interactions will show that Cincinnati officers do not single out blacks.
The city's worst racial unrest in decades erupted a year ago when a white police officer shot and killed Timothy Thomas, an unarmed 19-year-old black male wanted on misdemeanor charges. Three nights of rioting were quelled after a citywide curfew was imposed. The police officer was acquitted of negligent homicide.
The ACLU suit alleging racial profiling had been filed prior to the shooting
of Thomas. A civil
suit arising out of Thomas' death is still pending against the city and
the officer who shot him.
Under the 1994 Crime Bill, the Justice Department has the authority to file civil suits against law enforcement agencies that engage in a pattern of misconduct. The Justice Department also has the authority to file suit against law enforcement agencies that receive federal funds and engage in a pattern of discrimination.
A federal judge in Pittsburgh ruled in early April that the city's police officers may not like it but they must continue to reside in the city. Judge Donetta Ambrose dismissed a suit by the Fort Pitt Lodge of the Fraternal Order of Police (FOP) challenging the city's residency requirement. The judge found that Pittsburgh's loss of population is a rational reason for the residency rule.
Because legal challenges to residency rules in other communities have historically
been unsuccessful, the FOP invoked a unique strategy. The Pennsylvania
residency law applies only to police officers in second-class cities - Pittsburgh
being the only one - and no one else, so FOP lawyers argued that the requirement
limited the personal freedom to chose the location of one's home and treated
Pittsburgh officers unequally in violation of the 14th Amendment.
No so, Judge Ambrose ruled. The state legislature is permitted to pass laws that affect only one class of city if there is a rational basis to do so. In this case, the rational basis is Pittsburgh's continuing loss of population and the need for economic benefits to the city that accompany a residency rule.
The FOP had filed the suit last year after the Pennsylvania legislature dropped residency requirements for schoolteachers in Philadelphia and Pittsburgh. At the time, police labor leaders complained that police officers face a special burden of living near those who may hold a grudge against them.
Education propelled five Boston officers to salaries over $170,000 last year. In all, 630 of the department's 2,200 employees earned in excess of $100,000. The high saliries are partially a function of the controversial Quinn Bill program that pays a bonus to police officers who advance their education.
Under the state law officers who attain an associate's degree gain a 10 percent raise while those earning a master's degree gain a 25 percent wage boost. Cost to the city reached $15 million. The education incentive is treated as part of base pay for overtime and secondary employment purposes. The supplement is also included in pension calculations.
Because of a looming budget deficit, state legislators are considering
altering the law, which absorbed $100 million in state funds. The Quinn
Bill
was adopted in 1970 to improve policing by exposing officers to rigorous
college courses and a diversity of students. It has applied to Boston officers
only for the last two years. Critics claim that the result is not worth
the cost and that many officers attend schools with low academic standards
or obtain degrees through schools that grant credit for "life experience"
and police academy courses.
Top wage earner on the department, a detective lieutenant, drew $180,548 in total pay. Over $20,000 of the salary was attributable to the education bonus. Another $94,000 was earned in overtime and paid details.
The increase in Quinn Bill payments was offset by an almost identical drop
in paid detail expenses.
A recent vote of non-confidence on the police chief by Seattle officers and efforts by the Los Angeles police officers'union to prevent re-appointment of that city's chief for another ten-year term are in sharp contrast to the efforts of officers in Valleyview, Ohio. The six part-time officers on the force refused to report to work April 6 because their chief had been fired.
Police Chief Mark Consolo was removed from office by the village mayor, an act that the police officers and the village lawyer say is unlawful. The chief ascribed the action to a vendetta against him by the mayor.
Under village procedures charges must be presented against the chief before
the village council
and the chief given a chance to respond. The council would then decide
the chief's fate. "I don't want to go to that monkey court," Consolo said.
"They have their minds made up."
The chief reportedly has angered various village officials including filing disorderly conduct charges against an individual who was later elected to the council.
Bill Capretta, head of the Fraternal Order of Police lodge, said it seems bizarre that the mayor would try to remove a chief who is well-liked by his officers and has no disciplinary record.
The six officers, who said they would not work without a supervisor, were told the mayor would be their supervisor.
In recent weeks the high court has declined to review Ehlinger v. Granger, No. 01-1141, leaving in place a lower court ruling that a female officer can pursue a civil rights suit against her female supervisor for choking her.
The court is being asked to consider a matter involving the thorny issue of disclosing to other police departments the reason an applicant was not hired. In Johnson v. New York City Police Department, No. 01-1239, an unsuccessful police applicant has sued the NYPD alleging it issued untrue and stigmatizing statements about him to other prospective employers after he was found unfit to be hired. Lower federal courts dismissed the 14th Amendment liberty interest claim after finding that the state provided a meaningful remedy for Johnson's complaint. No review decision has been made of yet
Jordan was an African-American who worked as a sheriff's deputy and jailer.
In 1996, he began experiencing trouble with his direct supervisor. The
supervising sergeant made racially disparaging comments about African American
inmates in front of Jordan. After Jordan complained about the comments,
the sergeant was reprimanded. Reportedly, the sergeant continued to use
the racially charged language out of Jordan's presence. Jordan ultimately
requested and was granted permission to work for a different supervisor.
Two years later, however, the sergeant was promoted to captain and once
again became Jordan's superior. During that period of supervision Jordan
was reprimanded on two occasions and received a three-day suspension.
Ultimately, Jordan filed a race discrimination allegation with the Equal
Employment Opportunity Commission. Two weeks following the filing of
the complaint Jordan once again received discipline from the department.
He also was accused of illegally providing alcohol to inmates. Following
an internal investigation the sheriff fired Jordan. Jordan was subsequently
indicted for official misconduct. Meanwhile, a second deputy, who was
white, was also alleged to have illegally provided alcohol and marijuana
to inmates. The investigation of this deputy took a different approach.
He was informed that he was under investigation where Jordan had not been,
he was polygraphed while Jordan was never offered a
polygraph examination, and undercover audiotapes were made of the deputy
after telling him he was under investigation whereas an undercover video
of Jordan had been made without ever telling him that there were charges
pending against him. Ultimately, the white deputy was not dismissed from
his job nor was his case referred to the prosecutor. The white deputy also
was permitted to resign from the department as opposed to being terminated.
A suit was filed against the sheriff and the county alleging race discrimination.
The county moves for summary judgment on the grounds that it was not the
employer of Jordan.
HELD: Federal law allows employees to sue their employers for discriminatory employment decisions. In some instances, however, exactly who is the employer is unclear. To determine whether the county or the sheriff was Jordan's employer, the court uses a hybrid economic reality/common law control test. The court focuses on whether the alleged employer had the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee’s work schedule. The economic portion of the test focuses on whether the alleged employer pays the employee’s salary and benefits. When evaluated within the framework of this test, the conclusion is reached that the sheriff, not the county, was the employer of Jordan for the purposes of federal civil rights law. Under Texas law the county did not control Jordan but rather the sheriff was solely responsible for hiring, supervising, firing, and setting his work schedule. The fact that the county set Jordan’s salary is less important than the control factors. The suit against the county is dismissed. Jordan claims that he was disciplined differently than other deputies because of his race. To establish a prima facie case of such direct discrimination, Jordan must show that he received less favorable treatment than the white deputy. Prior case law holds that anti-discrimination statutes are designed to address ultimate employment decisions, not every decision made by employers that arguably might have some tangential effect upon the ultimate decision. Jordan’s discipline claims are not based upon ultimate employment decisions. He complains that he was written up on several occasions and docked leave days as well as suspended. However, no evidence was presented to show that such actions affected Jordan’s compensation. Thus, his claim of disparate discipline against the sheriff fails. As to his claim of retaliation a jury could find that the sheriff’s alleged non-discriminatory reason for terminating Jordan - the belief that he had violated the law - was a mere pretext for discrimination. Granting summary judgment on this question would be inappropriate and should be considered by a jury at trial. [U.S. v. Matagorda County, Texas, 181 F. Supp.2d 673 (S.D. Tex. 2002)]
A trucking company had a policy that drivers were to remove ignition keys from their trucks. The company had enacted this policy because of past instances involving theft. One day, however, a company employee left a fuel truck parked in a driveway. The truck was loaded with fuel, the door was unlocked, and the keys were in the ignition. An intoxicated individual entered the unlocked truck and proceeded to drive it around the city. He ran cars off the road and nearly collided with several vehicles while driving at speeds in excess of 70 miles per hour. Ultimately, several officers including Moody, the chief of police, sought to stop the truck. The intoxicated driver rammed the vehicle in which Moody was riding and threw him against the dashboard and windshield. Moody suffered permanent injuries. Moody subsequently filed suit against the trucking company alleging that through its employee it negligently failed to remove the keys from the ignition. The trucking company countered that the Fireman’s Rule barred the claim and the trial court agreed. Injured police chief appeals.
HELD: This case is one of first impression raising the question of whether the Fireman’s Rule applies in Alaska. A review of prior cases involving theFireman's Rule reveals that virtually all states have considered the rule and only one, Oregon, has rejected it. All other states have concluded that both fire fighters and police officers are paid to confront crises and they are compensated because of the exposure to this risk. Accordingly, it is appropriate for the State of Alaska to similarly adopt the Fireman's Rule. The public pays for emergency responses of public safety officials in the form of salaries and enhanced benefits. Requiring members of the public to pay for injuries incurred by officers in such responses asks an individual to pay again for services that the community has collectively purchased. Since negligence is a common factor in emergencies that require the intervention of public safety officers, allowing judicial recovery would cause a proliferation of litigation aimed at shifting to individual's costs that are already widely shared. The police chief's suit is barred by the Fireman's Rule. [Moody v. Delta Western, Inc., 38 P.3d 1139 (Alaska 2002)]
Krocka was a Chicago police officer and also a licensed attorney. After ten years on the force he was diagnosed with severe depression and began taking Prozac to alleviate his condition. When the department discovered that he was taking Prozac, he was ordered to receive a fitness for duty examination and placed in the personnel concerns program. Krocka subsequently filed a federal suit claiming that such a reaction by the department violated the Americans with Disabilities Act. During the discovery phase of the suit the city sought Krocka's medical records, including reports from his psychiatrist. The court issued an agreed protective order for Krocka to produce his records. The order stated that the files would be considered confidential and could be used only for the purpose of this particular law suit. When the matter went to trial Krocka testified in his own behalf. During cross-examination an attorney for the city gained admissions from Krocka that he had on several occasions consumed alcohol while on duty as well as patronized prostitutes while on duty. He further admitted that he had failed to report an incident in which a fellow officer had discharged her firearm. The jury ultimately returned a verdict in favor of the city. The police department subsequently instituted proceedings to terminate Krocka from his position as a police officer. He was provided a hearing before the merit board. At this hearing the transcript from the federal trial was introduced into evidence. The board upheld the decision to terminate Krocka. The former officer appeals. The trial court affirmed the termination and an appeal follows.
HELD: Krocka contends among other things that he was denied a fair hearing
and due process before the merit board because testimony from his federal
case was admitted into evidence. Administrative hearings are governed by
fundamental principles and requirements of due process of law. A dismissal
hearing for an administrative entity must include the opportunity to be heard,
the right to cross-examine adverse witnesses, and impartial ruling on the
evidence. In this case, Krocka was represented by counsel and had the opportunity
to assert each of his due process rights. While a protective order restricting
the use of his confidential medical records had been issued by the federal
judge, Krocka waived any protection when he testified to the contents of
the materials and when these documents were entered into evidence at the
federal trial. Once his testimony was presented at the federal trial it
became a matter of public record and could subsequently be used as evidence
at his dismissal hearing. Dismissal affirmed. {Krocka v. Police Board of
the City of Chicago, 762 N.E.2d 577 (Ill. App. Ct. 2001)]
Hebert was a New Orleans police sergeant. He was investigated for violating the department's rules regarding paid details. Investigation revealed that he has worked over a dozen authorized paid details without entering his name in the district log book as required by departmental rule. As a result, Hebert received a letter of reprimand and the loss of detail privileges for 30 days. The letter further advised that any future violation might result in more severe disciplinary action. Upon receiving the reprimand Hebert filed a motion with the civil service commission to review the matter. The commission rejected his request holding that the letter of reprimand and the suspension of private detail privileges were not "disciplinary actions" that the commission had the legal authority to review. The police sergeant appeals.
HELD: In Louisiana, regular employees in the civil service have a right
to appeal disciplinary actions to the civil service commission, including
dismissal, involuntary retirement, demotion, suspension, fine, or reduction
in pay. A demotion, transfer, or lay off, however, is not considered
a disciplinary action. Further, the state constitution provides that
no civil service employee will be subject to disciplinary action except for
cause expressed in writing. However, the state constitution does not
define the term “disciplinary action.” Hebert argues that letters of
reprimand are almost always the first level of discipline taken by the department;
and that while the letters previously were only temporarily placed in an officer’s
permanent record, under the current police superintendent the letters have
become a permanent part of the record. He further asserts that the
letters have been used when the department decides on promotion and other
disciplinary actions. Thus, Hebert argues that the letters of reprimand
are disciplinary action from which appeals to the civil service commission
are constitutionally allowed. While the Louisiana Constitution does
not define “disciplinary action,” the civil service rules do list a variety
of actions that the commission shall review. However, the language of
the commission rules does not suggest that dismissals, demotions, suspensions,
and fines are the only form of disciplinary action subject to review.
The fact that the commission may have a longstanding rule excluding letters
of reprimand from review is irrelevant. While that practice may have
been justified in the past when the letters were only temporary in nature,
such is no longer the case today as the letters now become a permanent part
of the officer’s file. Due to the present permanent nature of the letter
of reprimand, such reprimands may be challenged when the underlying charges
of evidence are fresh. The public puts its trust in the police department
as a guardian of its safety and it is essential that the department be allowed
to establish and enforce appropriate standards of conduct. The civil
service commission is in the best position to determine whether any disciplinary
action is within the department’s legal discretion. Reversed for police
sergeant and appeal on merits ordered. [Hebert v. New Orleans Police
Department, 805 So.2d 345 (La. Ct. App. 2001)]
Shockley, a correctional officer, was accused by a female friend of threatening to whip her. His accuser also stated that Shockley was a user of narcotics. As a consequence, the department assigned a lieutenant to investigate the accusations. He interviewed Shockley but Shockley refused to respond to the accusations on the grounds that they arose out of a personal matter that was not work related and did not involve any event that occurred while he was on duty. At this point the lieutenant advised him that employees were responsible for both their on and off the job conduct and that department regulations required the employee to cooperate with an investigation and to answer questions. The captain subsequently came to the interview room at the request of the lieutenant but Shockley again asserted that he would not discuss any details of this personal matter. The lieutenant filed a report documenting Shockley’s refusal to cooperate in the investigation. The department gave Shockley a five-day suspension for his refusal to cooperate with the investigation. Shockley appealed the matter to a hearing officer. The hearing officer found that department regulations indeed required employees to maintain appropriate conduct both on and off duty and that off duty behavior could form the basis for discipline. Given the nature of security work at a correctional facility the department had a legitimate purpose in requiring Shockley to answer the questions. However, the department failed to establish how Shockley's alleged behavior would affect security of the agency and therefore, the five-day suspension was inappropriate. Trial court affirmed the reversal of the suspension on the grounds that Shockley was placed in a situation where refusing to answer would subject him to discipline while answering might incriminate him and affect subsequent criminal prosecution. Department appeals.
HELD: Prior case law holds that a public employer has a choice between either demanding a statement from an employee on job related matters, in which case it can not use the statement in a criminal prosecution, or prosecuting the employee, in which case it cannot terminate the employee for refusing to give a statement. A public employer may demand that an employee give a statement on pain of dismissal even if the statement may tend to incriminate. The employee may then be fired either for refusing to give answers or on the basis of the answers that are given. However, the state may not then use those coerced answers in a criminal proceeding. To do so would violate the employee's right against compulsory self-incrimination protected by the Fifth Amendment. Violation of this Fifth Amendment right occurs only when there exists a combined risk of both compelling an employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers. The department argues that in a post-interview criminal prosecution the exclusionary rule proscribed by the so-called Garrity rule would attach to whatever statements were made. However, that rule is applicable only when the employee is ordered to answer the questions. The record is unclear on whether the investigating lieutenant demanded that Shockley answer the questions. Under state law an officer facing criminal charges is entitled to suppression of his statements only when he has been ordered to make them. The court does not require public employees to speculate whether their statements will later be excluded under the Garrity rule. That is why the primary question in this case is whether Shockley was given a direct order by a superior officer to answer the questions asked of him. Since the record does not reflect a clear answer to this issue, the matter is remanded to the administrative judge for further hearing. If the judge is persuaded that such an order was issued, then Shockley's answers could not have been used in subsequent criminal proceedings and the department was entitled to impose discipline for his refusal to answer. On the other hand, if the judge is not persuaded that he was given a direct order to answer, because any statement he made would have been admissible against him in a criminal proceeding, Shockley was essentially being punished for asserting his Fifth Amendment privilege and his five-day suspension must be reversed. [Department of Public Safety and Correctional Services v. Shockley, 7900 A.2d 73 (Md. Ct. Spec. App. 2002)]
Hancock, a police sergeant, came across a payment voucher to a lieutenant for work the lieutenant allegedly performed as part of a special DWI patrol. Hancock believed the work had not been performed because the lieutenant was on special assignment at the time. Hancock passed this information to a patrol officer. Both officers subsequently reported their suspicions of the lieutenant's potential criminal misconduct to the mayor and to an investigator for the attorney general's office. As a result, the attorney general's office seized records from the police department to further the investigation. Ultimately, the allegations against the lieutenant were not sustained. Some months later, Hancock and the patrol officer, Warner, were subjected to disciplinary action. They were alleged to have violated department rules by discussing the allegations against the lieutenant with the mayor and a city council member. They were also accused of conducting private business on department time. Ultimately, the two officers received minor disciplinary action. During the same time frame the officers were ordered not to discuss the attorney general’s investigation with anyone else and were given a variety of orders and assignments that were perceived by them to be petty and retaliatory. The two officers sued the borough alleging a violation of the New Jersey Conscientious Employee Protection Act (CEPA), a whistleblowing law. The trial court granted summary judgment for the employer on the CEPA claim and police officers appeal.
HELD: New Jersey statute provides that an employer shall not take
retaliatory action against an employee because the employee discloses to
a supervisor or public body policies and practices that the employee reasonably
believes violate the law. To establish a case under the CEPA a plaintiff
must introduce sufficient evidence showing that he reasonably believed illegal
conduct was occurring, he disclosed the activity to a supervisor or public
body, retaliatory employment action was taken against him, and there was
a causal connection between the whistleblowing and the adverse employment
action. The key in this case is whether retaliatory employment action
was actually taken against the two officers. The statute defines “retaliatory
action” as the discharge, suspension or demotion of the employee, or other
adverse employment action taken against an employee in the terms and conditions
of employment. Case law holds that for behavior to constitute retaliatory
action it must be a discharge or demotion. Neither officer in this
case suffered such an adverse employment action. Their allegations
consist largely of actions that made the job mildly unpleasant or orders
that applied to all officers generally, not exclusively to them. The
suspensions from work were found to be legitimate following court review.
The two officers have simply failed to show any retaliatory action taken
against them within the meaning of the New Jersey whistleblowing law.
[Hancock v. Borough of Oaklyn, 790 A.2d 186 (N.J. Super. Ct. App. Div. 2002)]
For some 12 years Whalen had served as a part-time police officer for
the city. In 1996, he was hired as a fulltime officer being paid under
a federal COPS FAST grant program. When the grant money ran out, the
city terminated Whalen’s position. The former officer filed suit seeking
reinstatement and back pay alleging that he was a fulltime police officer
who had been removed from his position in violation of New York civil service
law. Trial court dismissed the suit on the ground that the appointment
was temporary. Former officer appeals.
HELD: Whalen argues that his initial appointment as a police officer
was a provisional appointment which ripened into permanent police officer
status by reason of his continued appointment following successful certification.
While employed on the COPS FAST grant Whalen took the city civil service
test and placed in the top three on the resulting list. However, the
record indicates that he was originally hired as a temporary police officer
under the grant and not as a provisional or probationary employee.
The notice indicating positions available specifically identified the slot
as temporary and indicated the position would be eliminated once the grant
money was used. Additionally, the police chief testified he specifically
informed Whalen that the position was a temporary one limited to a term of
three years. The oath of office administered to Whalen identified the position
as a temporary fulltime police officer under the three-year grant. Finally,
Whalen was on no civil service list at the time of his appointment and,
in fact, no such list existed. It is well-established New York law that
temporary appointments are exempt from civil service requirements and can
never ripen into permanent appointments. Temporary appointees are not entitled
to any of the advantages secured under state civil service law. Affirmed
for city. [Whalen v. City of Mechanicville, 737 N.Y.S.2d 665 (N.Y. App.
Div. 2001)]
Pewnkalski, a police officer, suffered a disabling knee injury when he slipped and fell on wet grass while chasing a suspect. He filed a petition for accidental disability retirement benefits. However, the benefits were denied on the grounds that he did not sustain an "accident" within the meaning of state disability law. Injured officer appeals.
HELD: Under New York law for an "accident" to occur there must be a precipitating accidental event that was not a risk of the work performed. Thus, unless the injury results from an event that would not ordinarily be anticipated in the context of the worker's employment, it cannot be defined as "accidental." In chasing a suspect, the police officer was certainly engaged in police work and in the performance of this work exposure to a variety of conditions, including wet grass, was an inherent risk that would ordinarily be anticipated. Accordingly the state board could rationally conclude that the officer slipping and falling on wet grass encountered during the chase was a risk of the work performed. As such it does not constitute an "accident" within the meaning of state disability retirement law. Affirmed denying accidental disability benefits. [Pewnkalski v. McCall, 738 N.Y.S.2d 763 (N.Y. App. Div. 2002)]
The union and the township were parties to a collective bargaining agreement. In 1999, the township issued an order requiring officers who were scheduled for court appearances to report to the police station both before and after the court appearance and complete a full tour of duty. Prior to the order the officers had used their discretion in whether to report to the station prior or following court appearances and were permitted to complete any supplemental reports the next scheduled shift. Consequently, the union filed an unfair labor practice charge claiming that the order violated established past practices of the parties. A hearing examiner concluded that indeed the township had violated the state labor law when it issued the new order. The township appealed the ruling to the state labor board, which determined that if the court proceeding ended before the officer's shift ended, the township could exercise its managerial prerogative to direct officers to return to the police station until the shift ended. The board also determined that the township lawfully exercised its managerial prerogative when it directed officers to report to the police station before their regular scheduled shift prior to attending court. The board rejected the union claim that a past practice existed between the parties which created a separate and forcible condition of employment. The police union appeals.
HELD: Pennsylvania statute grants police officers the right to bargain
collectively concerning the terms and conditions of employment, including
compensation, hours, working conditions, retirement, pensions, and other
benefits. An employer commits an unfair labor practice if the employer refuses
to bargain collectively. Whether an issue is a mandatory subject of bargaining,
however, is the determination that must be made because an employer may not
act unilaterally on such topics. A matter is deemed a mandatory subject
if it bears a rational relationship to the employee’s duties. However,
a topic can be a managerial prerogative and not a mandatory subject if managerial
concerns substantially outweigh any impact the issue has on the employee.
Here, the state labor board concluded that there was no more fundamental
managerial right than the employer’s right to direct personnel by assigning
work for the employee during the scheduled hours of employment. The
board rejected the union’s argument that the time prior to and after the
court appearances was equivalent to paid leave for the officer. The
board found that court appearances qualified as one of the duties of the
officer’s job and that such appearances do not discharge an officer from
completing other assigned duties during that shift. The union counters
that there was a longstanding past practice of allowing officers discretion
on when to appear before and after the court appearance. Thus, the
union argues that the officer’s ability to take time off before and after
the court appearance was a mandatory subject of bargaining. There are
four situations in which evidence of past practice is used in the field of
labor law: 1) to clarify ambiguous language; 2) to implement contract
language which sets forth only a general rule; 3) to modify or amend ambiguous
language which has arguably been waived by the parties; and (4) to create
or prove a separate enforceable condition of employment which cannot be derived
from the express language of the agreement. While not reporting to
the police station may have been in fact a past practice of officers, it
does not fall within one of the aforementioned categories for which the law
of past practice exists. An employer must bargain with employees over
mandatory subjects but a past practice that is not a mandatory subject of
bargaining will not be turned into such a mandatory subject. To conclude
that an employer must bargain collectively with a bargaining unit over something
that may constitute a past practice but is not a mandatory subject of bargaining
would bind an employer to virtually all practices, including matters of managerial
prerogative, in existence at the time of negotiating an agreement.
Such a rule would arbitrarily expand the scope of Pennsylvania state labor
law. Therefore, under Pennsylvania labor law for a past practice to
be preserved, it must be a subject of mandatory bargaining. Affirmed
for township permitting alteration of court schedule. [South Park Police
Association v. Pennsylvania Labor Relations Board, 789 A.2d 874 (Pa. Cmmw.
Ct. 2002)]
The West Virginia Wage Payment and Collections Act states that whenever an employee resigns the employer shall pay the employee’s wages no later than the next regular payday. The law defines “wages” to “include then accrued fringe benefits capable of calculation and payable directly to an employee.” Further the term “fringe benefits” is defined to include “regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits, and benefits related to medical and pension coverage.” A group of police officers and fire fighters who had left the city’s employment filed suit claiming that the city owed monetary payments for the employees’ accumulated sick pay. Trial court granted summary judgment for the city and officers appeal.
HELD: The officers allege that the city violated state law by failing to pay them wages in the form of their accumulated fringe benefits after they left the city’s employment. A quick reading of the statute would initially lead to the conclusion that an employer is obligated in all instances to pay for unused fringe benefits. This view is not legally correct, however. Prior case law holds that the statute does not make payment for fringe benefits mandatory and that the terms and conditions of fringe benefits are controlled by the agreement between the employer and the employee. Terms of employment concerning the payment of unused fringe benefits must be express and specific so that employees understand the amount of unused fringe benefit pay, if any, owed to them upon separation of employment. Prior case law also holds that an unwritten policy that is longstanding is sufficient to constitute the express understanding between the employer and the employee, providing employees are aware of the policy. The record in this case does not indicate whether or not the former employees were aware of the city’s unwritten policy of never paying for sick leave. The case is remanded for further proceedings to assess the extent of the employees’ knowledge of city policy. [Howell v. City of Princeton, 559 S.E.2d 424 (W. Va. 2001)]
police officers
The 26 members of Council 15 of the American Federation of State, County and Municipal Employees have ratified a new three-year labor pact with the city. The agreement, which covers all police personnel except the captain and the chief, is retroactive to July 1, 2001. Under the pact, patrol officers will now earn from $36,000 to $53,929 depending on longevity. Sergeant's pay will range from $55,721 to $62,430. Wage hikes will average 4.55 percent in each year of the contract.
police officers
An arbitrator has freed Elgin officers to reside outside the city limits.
The ruling came as part of a new contract award and limits residency to
the general area surrounding the city. The ruling will not affect participants
in the Resident Officer Program where volunteer officers reside in free housing
in troubled neighborhoods. On the economic front, officers were awarded
a 3.5 percent pay raise retroactive for the last three years. Unit 54 of
the Illinois Policemen's Benevolent and Protective Association represented
the officers.