All posts by Sandulli Grace Staff

First Amendment Does Not Protect Employee Who Is “Just Doing His Job”

The Massachusetts Appeals Court today reaffirmed that an employee does not have First Amendment protection for statements made as part of his job. New Worcester County Sheriff Louis Evangelidis fired Jude Cristo, who had been the Director of Payroll and Human Resources. Cristo challenged his termination, claiming that he was fired because he complained that employees’ were not doing their jobs because they were engaging in political campaigning during work hours. Cristo claimed that the First Amendment protected his complaints. The Court disagreed.

In granting Evangelidis summary judgment, the Court of Appeals found that Cristo’s speech did not constitute protected expression for First Amendment purposes. The Court of Appeals noted settled Supreme Court precedent that is used to determine when a public employee’s speech is protected. In reviewing speech, the court asks, in part, whether the employee is speaking in their capacity as a citizen regarding a matter of public concern. The Court of Appeals agreed that Cristo was clearly commenting on a matter of public concern because the complaints he made to his supervisor were related to the potential misconduct of sheriff’s office employees. This speech was strongly tied to a matter of public concern because it related to public employee’s campaigning during work hours instead of performing their actual duties and committing other potentially unlawful acts.

However, the Court nonetheless found the speech to be unprotected because Cristo’s comments were made pursuant to his official duties and he was not necessarily commenting as a private citizen. The Court found that Cristo’s complaints were all made in furtherance of fulfilling his duties as the director of payroll and human resources, as his duties included making sure that employees correctly reported their time and included making sure that other employees complied with their human resources responsibilities. Consequently, as Cristo was merely making statements pursuant to his official duties and was not speaking in his capacity as a private citizen, his speech was not entitled to First Amendment protection.

This case is a reminder that while a public employee “does not leave her constitutional rights at the door” when she goes to work, those rights are curtailed when it comes to the operation of her governmental employer.

You can read the decision here.

Public Records Law Overhauled For First Time In 43 Years

The state’s public records law was updated today for the first time in 43 years. The new law, “An Act to Improve Public Records,” puts pressure on municipalities and agencies to respond quickly and adequately to public record requests by establishing strict timeline requirements and allowing for significant judicial measures in the event of noncompliance.

Most notably, the law allows judges to award attorney fees and costs, as well as punitive damages up to $5,000 for a lack of good faith, to requesters who succeed in court against an agency or municipality that fails to produce records according to the statute. This change accompanies a new timeframe for responding to requests. Like the current law, the new law requires a response within 10 business days. However, the new law will require a municipality or agency, if it cannot produce the requested records, to identify a reasonable timeframe for turning them over. That timeframe cannot exceed 15 days for an agency and 25 days for a municipality following the initial receipt of the request, unless otherwise agreed to by the requestor.

Additional provisions call for the use of electronic and digital transmission of records when possible (preferably in ‘searchable’ form), the designation of one or more employees as ‘records access officers,’ and the creation of a Public Records Assistance Fund. Further, agencies must host websites providing records of proceedings, annual reports, winning bids for public contracts, grant awards, agency budgets, minutes of open meetings, and more.

The law specifically clarifies that personal information of law enforcement and public safety personnel, including their home address, personal email address, and home telephone number, “shall not be public records” and “shall not be disclosed,” with limited exceptions that include requests made by public employee organizations such as unions. Section 10B. Similar personal information relating to family members of law enforcement and public safety personnel are explicitly not public records and should never be disclosed, without exception. Id.

The bill, House No. H.4333, passed unanimously in both the House and Senate on Wednesday and signed today by the governor, after being formed as a result of a compromise between two bills originating separately in each chamber. Most of the provisions of the new law take effect on January 1, 2017.

Appeals Court Upholds Arbitrator’s Award Reinstating Employee, Even Where Arbitrator Found He Sexually Harassed A Co-Worker

The Massachusetts Appeals Court today upheld an arbitrator’s reinstatement of a City of Springfield employee who was found to have sexually harassed a co-worker. The case is City of Springfield v. United Public Service Employees Unions, No. 15-P-742. The three judge panel, adhering to the high deference afforded an arbitrator’s decision, refused to find that the award violated public policy. The court found that while there is certainly a strong public policy against sexual harassment, the reinstatement of the grievant did not violate that public policy as he was still subject to remedial action for his behavior.

The grievant, a twenty-two year employee of the Springfield housing office with an “unblemished” record, was a messenger for the office. He suffers from “significant physical and mental health problems” and has a “mildly impaired overall [IQ] of 74.” He was fired over one incident, in which he made lewd statements and gestures toward a female employee, causing her significant upset. His union filed a grievance, and following a two day hearing, an arbitrator found that there was not just cause for the termination, and ordered him “reinstated to his position without loss of compensation or other rights.” The arbitrator found that the grievant’s conduct did amount to sexual harassment, but that termination was not justified. The arbitrator based her decision on the grievant’s work history, his physical and mental limitations, and also on the fact that another employee “engaged in a six-month course of sexual harassment directed at a co-worker” and received only a reprimand.

The City first claimed that the failure to uphold termination violates public policy. The court quickly rejected this, pointing out that employers are not required to terminate an employee who sexually harasses another employee, as long as other “appropriate remedial action” is taken. The City next claimed that the award violated public policy in that it ordered the grievant reinstated with no loss of compensation. The City argued that public policy required a sexual harasser to be punished in some way. The Court rejected this argument, noting that “counseling and training” are appropriate remedial responses to sexual harassment, and that the arbitrator’s award did not impede the employer’s right to require such. Again properly noting its limited role in review of an arbitrator, the panel noted that upholding the award “does not suggest that we agree with the arbitrator’s resolution of the matter without loss of compensation or other employment rights, as ‘even our strong disagreement with the result [would] not provide sufficient grounds for vacating the arbitrator’s award.”

The Court’s decision in this case again demonstrates that arbitrator’s awards are subject to great deference on review. Judges properly uphold such awards, even when they disagree with them, as the parties to an arbitration agreement have submitted to the “final and binding” nature of the process.

Read the decision.

The Daily Life Of A Policeman

In October 1969 the Boston Globe ran a five article series titled “The Daily Life of a Policeman.” The articles include interviews with members of the Boston Police Department, a psychiatrist, and policy pieces summarizing the problems facing the police, along with possible solutions. While these articles are fascinating because they provide a rare look into what it meant to be a police officer in Boston almost fifty years ago, they are also relevant because they describe many pressing problems and dilemmas that mirror many of the issues facing law enforcement today. We were lucky to get our hands on a copy of a pamphlet published by the Globe compiling these articles, and this blog will be a summary of its contents.

Part-1: Society’s New Scapegoat

This series begins with a narrative written from the perspective of an officer working the night shift responding to calls coming from across the city. For the officers working the night shift, it is a “nightmare of being incessantly alert, tense, ready for the unknown, the hidden, the madman, the criminal, the occasional accident, the desperate and the lonely.” While the incidents themselves, including street fights, fatal car accidents, and staring down the barrel of a shotgun at a domestic disturbance, are horrifying and dramatic, the most striking part of this article is the palpable anxiety caused by police work. Even on calls that seem routine, the author emphasizes the need to be ever alert to the unexpected, and the grave danger faced by the officers if they let their guard down for even a second. The author Daniel juxtaposes the rigors of the job with newspaper articles like, for example, “Ridicule, Low Prestige Blamed for Police Recruit Shortage” demeaning the profession. The drama of this article helps transition into the interviews that make up the majority of the series.

Part-2: You Always Know the Smell of Death

The second article in this series is an interview with 41 year old Patrolman Thomas B. Moran. Officer Moran, who was stationed at District 4 in the South End. The article begins with Officer Moran’s experience working the beat as a member of the department’s drug unit, including several vivid descriptions of the tragedy and danger he frequently encountered. The majority of the article, however, deals with psychological stress that comes with being a police officer, and Officer Moran’s thoughts regarding the relationship between the department and the public at that time. The Officer effectively described officer’s struggles with suppressing the human need to lash out at members of the public who attack them and describe them as “pigs” and “fascists” because of their professional obligation to hold themselves to a higher standard than the public. Before opining on the deteriorating conditions of the streets, the ineffectiveness of the prison system to rehabilitate offenders, and do-nothing politicians, Officer Moran stated “I said it before and I’ll say again. Nobody cares. This is the feeling of the police, that nobody cares one way or another.”

Part-3: The Pressures of the Job—Are They Too Great?

The next article includes an interview with Police Superintendent William Bradley. In this interview Juda discussed with Supt. Bradley how the stress of day-to-day police work takes a physical and mental toll on officers, and the need and demand for psychiatric care in the department. While the Superintendent expressed his strong faith in the exceptional maturity and mental strength of his officers, he described the need to make mental health care more accessible so that access to a psychiatrist would no longer be a “luxury” most officers could not afford. Balancing human needs and professional obligations also plays a role in this interview. According to the Superintendent, one of the hardest tasks asked of officers is to set aside his empathy and emotion when responding to tragedy in order to adequately perform necessary tasks like securing the scene and beginning an investigation. Although times change, the unique stresses of police work have not. As a result, police officer access to mental health care will likely always be an important issue.

Part-4: Mental Pressures Make Job Tougher

The last interview of the series is a conversation with Dr. Ruick Rolland, a psychiatrist in the Roxbury Court Clinic. At the outset of the interview, Dr. Rolland described the unique psychological stresses facing police officers, and the effect of those pressures on their performance. The theme of the doctor’s analysis is that officers respond to being overstretched but under appreciated by the public by becoming defensive and becoming apathetic towards their jobs and the people they serve. The Doctor warned that police departments facing an increasingly antagonistic public tend to become increasingly militarized, hampering their ability to work with, not against, the community. In the present era in which there is ever increasing tension between the police and the public, this last point still seems relevant today.

Part-5: Reforms Needed on Basic Problems

The last installment in this series include a list of the most pressing issues the author saw as facing the police department, and his solutions to remedy those problems. The biggest problems he identified are workplace complaints like lack of pay, long hours, the unresponsiveness of management and politicians, and the combativeness of the public. His direct reforms include increasing pay to attract better applicants, raising the prestige of the force, better access to mental health services, and giving officers a mechanism to voice their complaints about the force. Other indirect reforms include adequate facilities for helping alcoholics and drug addicts, better domestic violence protocols, and more money for rehabilitation programs in prison. The author takes an urgent tone in this final article, stressing the grave public safety implications of not implementing reforms as soon as possible. Despite the age of these pamphlets and the irrelevancy of some of the issues they contain, their main theme still holds true today: if society expects the police to effectively support them, the people, department, and politicians need to give them a certain amount of support and respect back.

Termination Upheld When Safety Violation Was Intentional And There Were Prior Disciplines

The Labor Arbitration Institute have arbitrators discuss hypothetical employment arbitration scenarios and state how he/she would have ruled. These “decisions” by arbitrators can be helpful in assessing how an arbitrator would rule in real world cases. In this scenario, a two-year employee rigged one of the two handles/levers on a press machine so that the machine would go faster and to alleviate some pain in his left arm that was hurting due to carpal tunnel syndrome. All five arbitrators on the panel would have upheld the discharge because the two levers were specifically there for safety reasons, the conduct was intentional, there was no prior request for an accommodation for carpel tunnel, he had prior discipline for other types of non-safety incidents, and the fact that the Company’s investigation may not have been 100% thorough was adequate enough.

What we can learn from the conclusions these arbitrators came to is that prior disciplines, even if they are for dissimilar conduct, can be used against you as progressive discipline, especially if it’s within a short span of time, and that relying on incomplete training or investigation as a basis for turning over a discipline/discharge comes up short in the face of other factors such as the ones discussed above.

Below is the complete discussion as issued by the Labor Arbitration Institute.

Conference Reporter – Labor Arbitration Institute

Safety Violation with a Poor Record

At this month’s program in Miami, the arbitrators on the panel discussed a case of a 2-year employee. He was a press operator. He had two years with the company, but had bid into a press operator position only 4 days earlier.

The press has two handles or levers. The reason for this is to ensure that the operator does not have either hand near the pinch point. In other words, the operator must use both hands at the same time in order for the press to work.

Four days into the job, the employee is discovered to have tied up the left-hand lever to a post. This allowed him to operate the press with just the right-hand lever. The supervisor asked him why he did this, and he gave two reasons. 1) he could work faster and thus, earn more incentive pay (true); and 2) his left arm was hurting due to carpal tunnel syndrome.

He was discharged for reasons which the panelists address below.

Decision

All five arbitrators on the panel would have upheld the discharge. What is interesting about this is how strongly they all felt, that:

1. There may not be a rule which specifically covers two levers, but the employer can rely upon its general safety rules.
The company went to the expense of providing two levers. These safety devices are there for a reason. The purpose of the device is to keep the employee out of harm’s way. The employee is jeopardizing his own safety.

2. It was intentional.
The union cited two prior cases in which employees were given a written warning. But in each case, the employees committed a one-time mistake. Both were the result of not thinking, and it doesn’t appear that either employee acted deliberately. On the other hand, the grievant did this for 3 days and it was intentional. In fact, is he cheating the other employees by gaining incentive pay that they cannot obtain the same way?

3. He didn’t ask for an accommodation.
He could have asked for an accommodation based on the carpal tunnel, but he didn’t.

4. He had a poor record.
He is a two-year employee, and he has this record: written warning for graphic statements to a supervisor and two written warnings & a 3-day suspension for attendance violations.

5. The Company investigation was adequate enough.
The union argued that the investigation should have included an interview of the trainer. Then, management would have learned that his training lasted only 15 minutes. The company counter-argued that the co-worker who trained him was only a few feet away on each of the 4 days that he worked, and thus available for any retraining. All of the arbitrators on the panel felt that an investigation does not have to be 100 percent. A lesser investigation will not nullify the discipline when the employer’s reasons for the discharge (#1-#4) are as strong as they are here.

Department Cannot Refuse To Reinstate Officer After Arbitrator Determines Shooting Was Justified

Late last year the Oregon Court of Appeals upheld the reinstatement of a Portland Police Officer, rejecting the city’s attempt to negate an arbitrator’s order under the guise of “public policy.” The case Portland Police Ass’n v. City of Portland arose out of the 2010 shooting death of a man named Aaron Campbell by an Officer Frashour. While responding to a disturbance at Mr. Campbell’s house, Officer Frashour fatally wounded the man, mistakenly believing the decedent was reaching for a gun in his waistband.

Portland’s police chief fired the officer in response to the incident after determining Officer Frashour had violated the city’s physical and deadly force policies. The Portland Police Association grieved the termination and, after a 16 day hearing, an arbitrator found Officer Frashour’s actions to be reasonable and ordered his reinstatement to the force. Despite this exoneration, the city refused to reinstate the officer. At the union’s appeal to the Employment Relations Board, the City contended that the award was unenforceable under ORS 243.706(1), which reads, in relevant parts; “as a condition of enforceability, any arbitration award that orders the reinstatement of a public employee . . . shall comply with public policy requirements . . . including but not limited to policies respecting . . . unjustified and egregious use of physical or deadly force.” In short, it was Portland’s position that the arbitrator did not have the authority to reinstate an officer who had violated the city’s stated public policy goal of preventing the unnecessary use of force by police.

The Board rejected the city’s position, finding that, because the arbitrator determined Officer Frashour was not guilty of the conduct for which he was disciplined, the statute was inapplicable. The Court of Appeals agreed with the Board’s determination that the statute only applies when an arbitrator finds an officer violated the city’s use of force policy, but nonetheless elects to alter the employer’s disciplinary decision. Essentially, because the city agreed to resolve certain labor disputes through binding arbitration, it could not overturn the arbitrator’s findings of fact regarding just cause simply because it disagreed with the arbitrator. Ultimately, the Court of Appeals’ decision supports the sanctity of arbitrator’s findings and emphasizes to public employers that they cannot play judge, jury, and executioner when it comes to employee discipline.

The full text of the case can be read here: http://cases.justia.com/oregon/court-of-appeals/2015-a152657.pdf?ts=1451492107

Anonymous Secret Santa Thank You Left on Patrol Car

As a former SWAT team member, this police officer approached the small white package left on his police vehicle cautiously. It turned out to be a sweet “survival kit” of candies left by an anonymous Secret Santa thanking law enforcement officers like him for his service. For example, Lifesavers to “remind you of the many times you have been one.” A nice gesture of appreciation to those who keep us and our families safe.

The full article can be found here: http://patch.com/california/sanjuancapistrano/anonymous-thank-you-makes-deputys-day

Police Officer Pays for Kid’s Birthday Cake Ingredients Mom Had Shoplifted

A Portsmouth, New Hampshire police officer pays for kid’s birthday cake ingredients that mom had stolen. This police officer was dispatched to an Ocean State Job Lot to investigate shoplifting charges. When he found out that it was a mom who had stolen items to bake her child a birthday cake, he decided to pay for the items himself. He did not tell anyone about it, but a store employee, touched by his kindness, called in the story. See full story here:

http://www.boston.com/news/2015/12/03/this-portsmouth-cop-saved-child-birthday-cake-footing-the-bill-for-stolen-ingredients/kX4uXjqbsPjZlt7PufkUUO/story.html

Strict Enforcement of Work Rules By Cleveland Fire Department

The Cleveland Firefighter’s recently-created Integrity Control unit has investigated dozens of alleged work rule violations since its inception. The unit’s investigations have uncovered numerous instances of misconduct, ranging from minor infractions to possible felonies.

Particularly noteworthy is the case of one firefighter, whom investigations revealed used his city-issued cell phone for personal reasons, namely to arrange and discuss dates. Said firefighter was suspended and ordered to pay back the City of Cleveland over $2,500.

Frank Szabo, President of the Cleveland Firefighters Union, acknowledged that it is inevitable that some individuals on the force will attempt to violate work rules. However, he also criticized the Department’s sometimes ambiguous policies, which the union believes fail to put firefighters on adequate notice regarding what precise behavior constitutes a violation.

The validity of such objections notwithstanding, the Cleveland cell phone case and other cases like it serve to emphasize the importance of complying with reasonable work rules—so far as employees can properly ascertain what those rules are. Both professionally and monetarily, the consequences of rule transgression may be severe, particularly where employers have entire units dedicated to performing internal investigations and uncovering misconduct.

 

Micro Units – A Toe Hold for Organized Labor

The NLRB ruled this week that a group of 162 skilled machine maintenance workers assigned to Volkswagen’s Tennessee Facility should be allowed to vote on whether they want to be represented by the United Auto Workers. This election comes on the heels of the UAW’s loss in the representation vote for all hourly employees in that same facility and VW’s diesel emissions scandal.

Within this shift of strategy, a valuable lesson of intelligent persistence can be found.   Rather than become mired, the UAW keeps deliberately pushing to expand organized labor in the South. In a week that marked the hundred year anniversary of the death of Joe Hill, their efforts should be celebrated.

Find the UAW’s press release here.