Category Archives: In Our Opinion…

Court of Appeals for the Second Circuit Reverses District Court’s “Deflategate” Decision, Reinstates Brady’s Suspension

By a 2-1 decision, a panel of three judges of the Court of Appeals for the Second Circuit overturned District Court Judge Richard Berman’s decision that overturned the NFL’s suspension of New England Patriots’ quarterback Tom Brady.

In its decision, the majority held that Judge Berman ignored the exceptional deference federal law afford decisions of labor arbitrators and acted beyond the narrow scope of review federal courts are required to adhere to. Specifically, the Court held that in suspending Brady, NFL Commissioner Roger Goodell properly exercised the broad discretion given to him by Article 46 of the collective bargaining agreement to suspend players for “conduct detrimental” to the NFL and/or the integrity of the game.

In its decision, the Court highlighted and rejected each of the three bases upon which Judge Berman overturned Brady’s suspension: 1) that Brady was not given proper notice that his actions could result in a four-game suspension, 2) that testimony excluded from the arbitration made the decision fundamentally unfair, and 3) that the NFL’s denial of access to the investigative notes from the NFL’s General Counsel also amounted to fundamental unfairness. In the case of each, the Court ruled that Judge Berman acted beyond his authority and did not afford Goodell’s decision the deference it was entitled to under the federal Labor Management Relations Act and the Federal Arbitration Act. The Court noted that under federal law, so long as the arbitrator is “even arguably construing or applying the contract and acting within the scope of his authority” the decision must be upheld, and that a judge cannot simply substitute his judgment for that of the arbitrator.

It is worth noting that the point of controversy which received a large bulk of the media attention in this case, that Goodell was able to serve as arbitrator in a dispute involving discipline he himself meted out, was a relatively minor issue to the Court. The Court that found this arrangement is extremely unusual, but noted that it was the process explicitly called for by the collective bargaining agreement. This is consistent with a long line of cases emphasizing that when parties to a collective bargaining agreement agree to a grievance process which ends in final and binding arbitration, that the decision of an arbitrator should be just that: final, binding, and free from interference by the courts. It seems that if the NFL and the NFL Players Association are to fix what many agree is a broken system of disciplinary appeals, they will have to do so at the bargaining table, rather than in a courthouse.

What People Say When They Get Arrested

The Boston Globe has a front page story on April 10 titled “Arresting Words.” Written by columnist Yvonne Abraham, the story weaves the words from Boston police reports into a tapestry of what police officers face daily on the streets and in the health clinics and within the homes of people to whom they are called to respond. Most are poor, many suffer from mental or physical illness, some are violent or threaten violence.

We see and hear a lot about victims of police abuse. This story gives some small bit of insight into the world into which society sends its police officers. Perhaps because it thrives on sensationalism, the press usually fails to convey a true picture of the milieu in which police officers work. Police must at once be legal experts and social workers. Split second decisions are parsed by appellate judges and clinical psychologists years later, but only after they have spent weeks, months, and years poring over enormous amounts of data, much of which the officer on the scene had no knowledge of in the moment.

And how does society value the men and women in police work? It compensates them like other public employees – fire fighters, teachers, sanitation workers – but nowhere near the level of the judges or bureaucrats who sit in judgment over therm.

One would think that having an educated police force would be a good idea. In fact, in 1967, the President’s Commission on Law Enforcement and Criminal Justice (the Johnson Crime Commission) recommended more education for police officers. Massachusetts responded in 1970 by passing the Quinn Bill, now known as the Police Career Incentive Pay Program, codified as Mass. Gen. Laws Chapter 149, Section 108L. A local option law, it provided additional compensation ranging from 10% to 20% to 25% for an Associates’, Bachelor’s, and Masters/JD degree. When many municipalities accepted the program, thousands of police officers seized the incentive to gain college degrees. But the program’s Achilles heel was that, although its cost was supposed to be split between the state and the community, starting in the late 1980’s and continuing to the present day, the Legislature has underfunded the program to the point that it makes virtually no contribution to its one-half share.

In Boston, where one would think educated police officers would be a priority, the Boston Police Patrolmen’s Association and the City had negotiated for this benefit in 1998. But when the Commonwealth underfunded the program in 2009, the City simply shortchanged its educated police officers, reducing their salaries by thousands of dollars. The Supreme Judicial Court, which has no problem opining on the lofty standards to which police are held (“it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials.” 1 ) voted unanimously to uphold these pay cuts for educated police officers.

The current solution to address police abuse is to put body cameras on police officers. If and when that happens, and if people actually watch 99+% of what the police see, they will perhaps gain some insight into the world into which this Globe article peers. As one veteran officer remarked to me, people would be horrified to actually have to look at some of what police see on a daily basis. He mentioned entering a house where multiple people and domestic animals had relieved themselves everywhere, creating a visual and olfactory experience that could only induce nausea.

The social and economic conditions depicted in this column were not created by the police. But it is the police who must spend much of their working lives dealing with them. As Jesse Jackson has written,

The president has created a Task Force on 21st Century Policy, with instructions to report in 90 days. He’s committed millions to put cameras on police. But he might be better advised to put cameras on bankers.

By putting this article on its front page, the Globe perhaps opened a few readers’ eyes. But there is much more that must be done

1 City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005)

The Supreme Court Hands Down An Unexpected Public Sector Union Victory

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.

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.

Workers’ Compensation Recipients Not Required To Reimburse Employer From Settlement Proceeds Allocated To Pain And Suffering

Employees who receive workers’ compensation benefits may not sue their employers in tort.  G.L. c. 152 Sec. 24.  Employees may, however, file claims against third parties.  G.L. c. 152 Sec. 15.  If the employee recovers damages from the third party, the employer is entitled to a statutory lien on the recovery, unless the recovery is greater than the amount the insurer paid the employee.  In that case, the employee may keep the “excess,” which is defined as “the amount by which the gross sum received in payment for the injury exceeds the compensation paid under this chapter.”

In DiCarlo v. Suffolk Construction Co., decided by the SJC on Friday, an employer who had paid out workers’ compensation benefits to an injured employee was seeking a portion of the “pain and suffering” damages the employee received from a subcontractor whom the employee had sued in tort.  The damages arose from a settlement agreement.  The employee agreed to accept less money from the third party than he had received in total from the employer in workers’ compensation benefits, but the agreement specifically allocated a percentage of the payout to pain and suffering.  The employer argued that pain and suffering damages should be included in its lien.  The employer took the position that the “gross sum received in payment for the injury” included pain and suffering.

However, the SJC allowed the settlement agreement to carve out pain and suffering damages for the benefit of the employee.  The court held that the workers’ compensation statute does not allow an employer to be “reimbursed” for pain and suffering damages, because an employee cannot recover for pain and suffering under the workers’ compensation statute – only for wages.  The court clarified that an insurer “cannot be reimbursed for something that it did not pay.”  The decision can be read 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

Affordable Care Act’s Cadillac Tax on High Cost Health Plans has been Delayed Two Years

The Affordable Care Act (ACA) (a/k/a “Obama Care”) contains a provision that would impose a 40% non-deductible tax on higher cost health plans. The tax was scheduled to go into effect in 2018 on plans whose total annual cost exceeds $10,200 for individual and $27,500 for family coverage. Insurances carriers would be responsible for paying the tax but the burden ultimately would fall on employers and individuals with high cost plans. The Kaiser Foundation predicts that by 2018 26% of employers would be assessed the Cadillac Tax on at least one of their health plans if plan design remains the same. This is why many employers have indicated a reluctance to agree to any collective bargaining agreement beyond 2018.

In December, the U.S. House of Representatives released a tax bill entitled “Protecting Americans from Tax Hikes Act of 2015.” The bill was ultimately passed by Congress and signed into law by the President. It delays implementation of the Cadillac Tax until 2020. Analysts speculate whether the tax will ultimately be repealed before it goes into effect.

Accordingly, employers may no longer rely on the Cadillac Tax to avoid negotiating agreements that extend beyond 2018. It is likely that they will continue to be reluctant to any agreements extending beyond 2020 when the tax currently is due to take effect.

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

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.