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

Sandulli Grace And The Massachusetts Coalition Of Police Win Night Shift Differential Pay For The Community Service Officers In The Braintree Police Officers Association

In contract negotiations between the Town of Braintree and the Braintree Police Officers Association, MCOP Local 365, the Town proposed the new position of Community Service Officer (CSO).  The Town proposed the CSO as a specialty position that could be filled without regard to seniority, an exception to the usual practice. The Town also proposed to “flex” the officers’ schedules, which meant that the officers would only receive overtime if they actually worked more than eight hours in a day – not if they were required to work an entirely different shift because of the needs of the job.

The contract language did not specify how the CSOs would be compensated.   However, the Town agreed that the CSOs would work a flexible schedule “in the same fashion as currently worked by the Narcotics Unit.” This was sufficient to convince the union to agree to the proposal, because the narcotics detectives worked a flexible schedule, and were paid the night shift differential all the time. The night shift differential made up for the negative aspects of the position, and “sold” the proposal to the union.

Once the position was filled, however, the Town refused to pay the CSOs the night shift differential, taking the position that it was not required to do so because the pay rate was not stated in the contract. The union filed for arbitration. On January 20, 2016, the arbitrator issued his award, agreeing with the Union and ordering the Town to pay CSOs the nights shift differential. (The award can be viewed here.)

This is an important victory for the Massachusetts Coalition of Police and the Braintree Police Officers Association. The arbitrator acknowledged that, by agreeing to a specialty position which the Chief could fill without regard to seniority, the union was obviously making a concession, and it would not be reasonable to expect the union to do so without getting something in return. In this case, what the union expected to get in return was the night shift differential. The arbitrator, Timothy Buckalew, showed great respect for the challenges of police collective bargaining. It was a hard-fought and well deserved victory, and I congratulate the Braintree Police Officers Association!

 

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

Managers Will Suffer Pay Cuts if a Union Organizes Employees

Menards, a massive home improvement chain store, has an employment agreement for managers which imposes a substantial pay cut if the workers under their supervision organize a union. A section in the employment agreement titled “Union Activity” provides that a manager’s income “shall be automatically reduced by sixty percent (60%)” of what it would have been if any union is recognized in the manager’s operation. The manager’s pay is likewise reduced by sixty percent (60%) if a union files a petition and wins an election.

The clause providing that managers are to be punished if a union succeeds appears in the employment agreement that all managers must sign as a condition of employment. One employee stated that “The mere mention of the word “union” is a workplace taboo.” Menards, funded and headquartered in Eau Claire, Wisconsin has more than 280 stores in fourteen states according to its website. The company’s owner, John Menard Jr. secretly funneled more than 1.5 million to a political advocacy group to support Wisconsin Governor Scott Walker.

Carin Clauss, an emeritus professor of law at University of Wisconsin-Madison believes the company might be vulnerable if a complaint is filed with the NLRB. The National Labor Relations Act prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights to join a union. In Clauss’ opinion “You interfere with employees by threatening a third party.” Clauss suggested that an agreement that threatens managers with consequences if they don’t do something to interfere with employees organizing rights could be contrary to public policy and thereby void and unenforceable.

Stephanie Bloomingdale, Secretary-Treasurer of Wisconsin AFL-CIO said: “Shame on Menards. How are working people supposed to get ahead in this economy and work for a strong America when billionaires like John Menard are rigging the deck before working people even have a chance?”

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.