First Thursday, August 2019
Hello folks welcome to the August two thousand nineteen edition of First Thursday. My name is well Aitchison. I'll be your host for the next forty five minutes or an hour. Were so while we cover recent developments in the public safety workplace. And unfortunately I gotta start with something. I don't WanNA start. Weth breath social media. I know I talked about it last month. I know I talked about it the month before last but it is continuing to explode exploded across the country every day. Now what I look at the results of our news trawlers that we have set up to bring us news stories from around the country on public safety labor issues every day. No kidding I'm seeing an article about about a public safety employees getting fired for a social media post It started with largely police officers. But it's all over the place now it's corrections officers. There's EMT's there's firefighters there's fire chiefs there's the head of the Border Patrol. She hasn't awesome been fired yet. But you know well say so what I want to do right now just for a couple of minutes I promise you I'm not GonNa take terribly long on this. This is to we have called out several of these articles on social media we called out Sex of them and the purpose is to show you the geographic and topic breath of the problem. I don't want anybody they thinking. You don't have a problem in your agency you do. You've got to get control over all right. Let's start with a case. It comes out of a small county in Missouri it's called Monotone County. And this is a case where a couple of uh-huh employees want as a jailer which is a job classification. There another is a deputy they're exchanging posts with each other Making funny faces and and they're coming up with memes and that sort of stuff what are they posting about. They're making fun of people with Down Syndrome NOPE There are some of the faces are clearly meant to mimic people with Down's syndrome. or at least they look like that May Both of them fired no word and the article as to whether or not they have appealed their discipline and if so what the results might bay the second one is something that's going on around the country and it's a corrections officer issue and a apparently. I wasn't in on this so I had no idea this was happening. Apparently corrections officers are posting things on social media Following a quote feeling. Cute an quote a contest so They they right Funny Captions with respect to why they are feeling Utah a particular day and an overall very hard must there's been contests like this in all sorts of different public safety environments but it got taken way way too far So we have for example a corrections officer working for the Texas Department of Criminal Justice Who Post something saying feeling cute? Might shoot your baby daddy today I decay. I don't know There are threatening to get her saying feeling cute. I might go gas. Some inmates The results at least that's right now four corrections officers have been fired in Texas To have resigned in lieu of termination and the investigation has spread Brad all over the country third case this is a firefighter case. And it comes out of a small fire department in North Carolina firefighters our fighters in North Carolina. Pretty much know employment rights whatsoever and this is a fire chief who has resigned in light of controversial comments made by his son. This is small town fire department made by his firefighter. Her son on social media. What are the sun say? The Sun posted a comment On social media that illegal legal immigrants should be his words not mine exterminated. Big Public Outcry in the wake of it and Dan both that fire chief's son And the fire chief himself lost their jobs. The fire chief ended up resigning as a result Delta of the controversy about his sons post Next one this one's just came out today And I'M UH recording this on July thirtieth. I'm recording at the day before first of the month and this comes from Hampton University University which is private college in Virginia and it has a number of campus police officers And today the the university announced that it was firing nine. Campus police officers. What were they doing they were engaging in a and I'm quoting here a mean war now? This particular article does not describe. Describe exactly what it is. The these police officers were posted in their meam or but my goodness you can imagine how bad it must be for the university to fire nine of its twenty five campus police officers in one fell swoop. And can I suggest to you that if anybody in your department is engaged in a me more shut it down right now unless the memes are about cute kittens and puppies but anything else. If it's about politics you know it is going to get out of hand in the toxic political environment that we all are facing right now enough. This situation I wanted to talk about is the aftermath of the plain view project described this in past project up. Ah Pass podcast play. Buke project is the brainchild of Philadelphia Law Firm to track the social media posts of individuals rituals who claim to be a police officers and eight jurisdictions around the country The folks at the plain view project then Correlated than names. Because of course. These people aren't doing this anonymously because of course because and verify that the individuals were in fact police officers And then released the social media posts for the world to see and the plain view project identified Thirty one hundred Offensive or potentially offensive posts from just one one of the eight departments Philadelphia and Philadelphia has now announced the first set of disciplinary Inari actions based upon those facebook posts thirteen Philadelphia. Police officers are being fired as a result of it for more are GonNa get a thirty day. Suspensions and a bunch more are going to get anything from a reprimand man to a five day suspension. What's a bunch We don't know the exact numbers yet but it appears it'll be in the low hundreds and then finally our border patrol chief. What's going on there? Well you've probably heard that there's a private facebook facebook post for boater border patrol agencies private facebook account that is group for Border Patrol agents Let me stop right there. There is no such thing as a private facebook account or group unless you think that it is impossible that anybody in your group is going to forward one of your clever posts to somebody else else. There's no such thing as a private facebook group. Well these border patrol agents thought. There was that of course the information got out and Right now sixty. Two current and eight former border patrol agents and employees employees are being investigated in their role in the facebook group and this is a facebook group. It was called. I'm ten ten fifteen. What did they post? They posted everything from open questioning the authenticity authenticity of images of the migrant. Father and child who were found dead in a river they doctored images of representative Alexandria Cossio. Oh Cortez purporting to perform a sex act on donald trump and many many others so all these border border patrol employees who are under are under investigation right now and potentially some of them may end up losing their jobs. What's up with the chief of the Border Patrol? She joined the facebook post and now she is saying look I I may have joined. I was a member of that group. I possibly I got on there for the purpose of reading what my staff thought about me. I didn't know much about the the group and I rarely read their post but yeah I was a member of the the group and an ordinary world the chief would probably be looking at discipline up to and including termination but yet we have no idea in our current environment in Washington. DC what with politics on the fact that these posts concern learn illegal immigration so back to my message about all the stuff. We've got to do an immediate it intervention in the public safety community. And when I say we that includes management Labor people who do I do who are union side lawyers management side lawyers. We have got to get the word out to everybody now now and as often as we possibly can stop this stuff stop posting anything anything but particularly about politics on social media and all you're doing you may think that what you're posting is incredibly incredibly clever or contributing in some meaningful fashion to the national discourse but it may not be all that clever one looked at hat days later or weeks later or in a hearing in which you are challenging your termination and it can well catchy into serious risk of losing your job if you want to have those thoughts you want to express them to your friends. Whatever those thoughts? It's my bay. Feel free to do so. Don't do it on social media. We're going to end up. Just here's a prediction here. Let's come back and revisit this prediction and twenty twenty. We're going to end up with. I'm guessing at least a thousand in public safety employees in the next year. Losing their jobs because of these social media posts. It's so unnecessary Korea right onto our cases. Let's start in California. There's a wonderful decision from California's the Public Employment Relations Board about an exploding offer. What's an exploding offer? Besides a really cool term for something. Something in collective bargaining and exploding offer is a proposal in bargaining. That expires on a fixed date. So this offer is only going to be open until September one two thousand nineteen. That's an exploding offer so are exploding. Exploding offers legal. And this is the case the California Public Employment Relations Board has to deal with In a matter that involves a city of Arcadia California and union known as the Arcadia Police Civilian Employees Association Association. So what happens in the Arcadia case what what is going up. So the city and the Association are parties to a collective collective bargaining agreement. Or they call them in California a memorandum of understanding in September of two thousand thirteen the city announces to the association that wanted to finish negotiations by November two thousand thirteen because of city council elections. That would be held in April two thousand fourteen now. Let's fix that time sequence sequence in our minds. The Union's contract is not due to expire until June two thousand fourteen not so September two thousand thirteen nine months before the expiration of the contract. The city is saying to the Union. We want to wrap up bargaining in two months by November two thousand thirteen because six months later. We're going to have a city council election in April of two thousand fourteen. Okay so that's our time sequence. The city also tells the the association that have no agreement was reached on the contract by the end of November. It was just simply going to shutdown bargaining and it would not re-commence bargaining until after the elections And here's the kicker part of the city's announcement was you you know what if you bargain now and we reach an agreement by November two thousand thirteen signing bonuses will be on the table but if we don't reach agreement by November two thousand thirteen signing bonuses are likely not going to be on the table The association files on Ver- Labor practice charge alleging that the exploding offer he had done by November. Two Thousand Thirteen dinner no signing bonuses That the exploding offer amounted to bad faith bargaining and perp I'll I'll just use the acronym perved Public Employment Relations Board agrees with the Union. And what purp- does something fairly fairly interesting and something somewhat subtle pert says exploding office offers per se are not bad faith bargaining having it depends on the circumstances says per so it may well be that if a party is otherwise bargaining in good faith. You the have an offer that expires. On a certain day we're going to look at it under the totality of the circumstances and judge judge whether or not the employer or the union unions can make exploding offers is engaged in a bad faith bargain and one of the most important things we're going to look at. Why is this offer exploded? Whoever made that exploding exploding offer have they given a legitimate explanation for the deadline and it's regressive or their regressive posture posture after the deadline? Why are you moving backwards when you move backwards on a proposal? That's called a regressive bargaining so purpose saying we're going to look at a lot of different things about what was going on in the bargaining when we've got and exploding offer honor hands hands. The most important of them is. Why is this darn thing? Exploding to begin with what explanation was given and that says perp mark is where the city of Arcadia fails. I'M GONNA turn now to herbs opinion. Here's the quote. We find no adequate explanation Russian on these facts as an initial matter. The city's exploding offer was inextricable from is unilaterally early imposed ground rules. What are those? That's the notion that we're going to start bargaining early. And then if we don't reach an agreement by November We're GONNA come back to bargaining only after the city council election saucer or ground rules. Moreover the city stated reason for establishing flushing a November deadline was the city would be holding a city council election the following spring. We find that the city's exploding offer evidence bad faith given the significant time lag between the city's unilaterally imposed deadline and the the city council election and also given the inherent uncertainty as to whether the election would lead to new council majority favouring new budgetary terry expenditures so significant as to retire require the city to take a little less generous bargaining position with the association. So so bottom. Line says burp because the city doesn't have a legitimate explanation for that six month delay in bargaining. And and. Because it's not at all clear as to what's going to happen. As a result of the city council elections is going to get better as it gonNA get worse. said he doesn't doesn't know this. Exploding offer is an indicator of bad faith bargaining watch the remedy the purpose imposing very limited remedy in the case and the reason is that the union actually he agreed to a successor contract as successor. AMMO you the union leadership changed and And the Association was unable label to show a link between The city's exploding offer and the change in union leadership as so burbs remedy is limited to requiring the city to cease and desist from bad faith bargaining and to post a notice. Aw To all bargaining unit members that the city had done wrong by them with by making this exploding offer What what other remedies could be available if you didn't have this sort of limited factual situation That person was facing in this case where they actually entered into a successor. CERAMILL you it. Could well be that. PERP would order a remedy requiring the city to offer those signing bonuses even though the bargaining took place after the city self imposed deadline There could be remedies of attorney's fees could be a variety of different remedies days. But in this case because of the unusual facts per only tells the city to go forth and send no more and to post notice of love. It's unfair labor practice. Exploding ops if you've got one on your hands or if you're contemplating making one thank about the totality of the circumstances. Let's go across the country to Miami and talk flash drives. Oh we've got a domestic disturbance that bubbled over into a police officers work environment that's never happened before Well what what goes on in this case. This involves in Miami Dade County police officer by the name of Saint Edwards She was arrested and charged with two counts of official misconduct criminally charged after a an investigation. So I what what is the case all about well. Edwards is not getting along with her husband Clyde Edwards who works at a job Eh sports apparel and footwear store clydes boss Fella named Jose Raji contact at the place after story received a phone call from someone who identified herself as a Miami Dade police detective by the name of Diane Mitch. The caller told Raji Raji that Clyde should be fire because he was being investigated by police and there were police reports regarding the investigation. Raji asked to see a copy of police reports and received an email shortly afterwards from this Dianne Mitch or meat shower. Be Sure how you pronounce that name and email said Mr Raji. Attached are two reports that I may able to release to you at this time as we discussed. Please don't discuss the open case with the suspect. I will forward you the complete elite file in a couple of days. Thank you Diane. The to police reports that were attached to the email indicated that Clyde was being investigated for selling counterfeit sports shoes remember. He works a sports in a sports apparel and footwear store. Further our investigation by Raji and the Miami Dade police revealed that the to police reports were in fact falsified and had admin email to Raji from a copy machine located on the second floor of the Miami Dade Police Department Intra Coastal District station. Guess who works at the coastal station officer Saint Edwards Clydes Liedes wife eventually the investigation proceeds to a criminal prosecution and one of the pieces of evidence is a flash drive owned by officer Edwards. Personally that she had attached to her our work computer she a motion to suppress the flash. Drive saying it's my personal property and you didn't have probable cause to seize it. It or to search it after evidentiary hearing the court denied the motion to suppress the evidence. A jury convicts at words. both counts of official L.. Misconduct she gets sentenced to probation and she appeals her criminal conviction and the heart of her appeal. Is I had a privacy right to that flash drive. I know this is kind of under the heading of Duh but it's happened and so let's talk about it because it may be happening somewhere else. The Florida Court of Appeals says. No you don't have any privacy rights in this is flash drive. This was plugged into work computer. The work computer owned by the Miami Dade Police Department. The computer was kept in an the office you shared with another police officer. Who had full access to your file because you left the Password in plain view on your desk for the express purpose of allowing your co worker to use the computer? It's always handy by the way when you have a computer passwords to write. Let them down on paper. Not I hope everybody here is using a password manager of some form not reusing passwords. And making sure that you've got the most secure passwords out there and that you're not writing them down on paper okay. But I digress. The court says luck all uses of the system. All use of the files on the system under the the express agreement that you officer Edwards had with the department allowing you to use that computer all. Those files are subject to search and seizure and no one's got any expectation of privacy and not only. Are those the rules roles but every time you log into that computer officer Edwards. You have seen a log in banner that says you have. I have no expectation of privacy in anything that happens on this computer. I love this logging. Banner how comprehensive it is here. CARAMAN quote all uses of the system and all files on the system. Maybe intercepted monitored recorded copied audited party audited inspected and disclose to authorize personnel. When you look at all this as the court the flash drive may may have been Edwards personal property but at the time it was seized she left? It plugged into the work computer. She had no responsible expectation of privacy in the flash drive and its contents conviction pelt. US We've over to Pennsylvania for public policy case one involving a corrections officer. Normally you see these public policy cases. Either during the context of Police officers or firefighters. It's pretty rare e c one involving a corrections officer and in this case a a corrections officer who engaged in and admitted act of dishonesty justice. A reminder the public policy doctrine is an exception action to the notion that binding arbitration or Susan me arbitration is final and binding and this exception has a very narrow one one and what it does is to establish that if there is a dominant well-defined overriding public policy policy violated by the arbitrators opinion. A court can overturn the arbitrators opinion and the question of whether they're such public policy always ends up focusing on the remedy that the arbitrator came up with in the case. Does that remedy does that. Resolution of the case does it violated a clear violated clear public policy So let's talk about the facts in this case involving corrections actions out the Sir Tyrone Right of the Monroe County Correctional Facility in Pennsylvania in two thousand seventeen right calls alls insect and he justifies the use of a sick day by submitting a falsified doctors. Now they hadn't gone to the doctor. He had a spare doctor's note That he had obtained in two thousand eight. He altered a copy of that doctor's note and submitted it and and he did that to avoid and occurrence under the facilities attendance policy. And if you total a certain number of of occurrences you'll end up with discipline. Right wasn't on the cusp of yet in discipline as a result of the absence and it's really unclear. Clear why he thought he needed to avoid an occurrence but nonetheless that's what his justification was. He testified in the eventual arbitration craciun. Hearing that he had been going through an emotional time related to his deceased mother's birthday and that he had cared for her during the end of her or life His mother had died two years before and her birthday. Is it about the time he's using this sick leave day and forging the doctor's note He also testifies a new of the sick leave policies of the department and he knew it was wrong to submit an altered. I note while the facility terminates right is union challenges the termination in our nation and the arbitrator ends up reducing rights termination to a thirty day suspension. Why what's the arbitrators justification? He says well he's a thirteen year corrections officer very limited it'd prior discipline and the facility only offered what the arbitrator refers to as a vague explanation as to why why lesser disciplined would not meet. Its needs the arbitrator ends up concluded that the facility did not offer that I'm quoted Auden a compelling excuse for its lack of fidelity to the remedial goals of progressive discipline and the arbitrator points out that right right admitted he was wrong. He expressed remorse and he said I will never do such a thing in the future so the termination reduced to a thirty day suspension which is in the context of the wage schedule four corrections officers in Pennsylvania. And of course it's going to depend upon how much overtime right work. That's going to be a fine of at least five thousand dollars or so thirty day. Suspension mentioned pretty serious suspension. That right ends up with the facility isn't happy though and challenges the arbitrator's decision through the court the system claiming that the arbitrator's decision violates public policy and the case ends up before Pennsylvania's is Commonwealth Court the Commonwealth court in Pennsylvania's what most states would call a court of Appeals So if you're unfamiliar with that term turn that's what we're talking about. An Intermediate Court of Appeals not the Spring Court But at this stage before the Supreme Court and the court begins by saying look we use in Pennsylvania and by the way this is the case almost everywhere. We use a three step analysis when we're looking at these public policy cases cases and an employer has to prove all elements of this three step analysis. What's what are the three steps? First of all what's what's the conduct that led to the discipline. That's all was easy to proof right. Number two a determination of whether that conduct implicates implicates a well-defined and dominant public policy. That's usually going to be the case in these Public policy issues and and then third. Here's the big one determination of whether the arbitrator's award poses an unacceptable risk that it will undermine the policy and caused the public employer to breach its lawful obligations to the public So this is going to be a focus because this third requirement is going to be focused on the arbitrator's award does it undermine public policy and it is the third third of these three tests that the Commonwealth court determines that the employer cannot meet And the court ends up saying a lot of different things here about why it is. The facility doesn't make that third third test but I'm focused on the most important up and quote to you from two or three cents at the end of the court's opinion. Here's here's what the court says. While rights actions are unacceptable the arbitrator's award of Thirty Day working day suspension and the second most serious sanction under the collective bargaining agreement short upholding termination does not be speak acceptance but rather a modulated approach to progressive discipline that is consistent with prior discipline imposed by the Facility for similar behaviour clearly says the court. There is an explicit well defined and dominant public policy against falsification of Documents Amos however the arbitrator found various mitigating factors and a rationale that included ample explanation. I'm for why a thirty day. Suspension without pay for a reasonable calibrated defensible relationship to the threat posed by rights conduct. Thus says the court because we have a reasonable relationship between the penalty imposed by the arbitrator a thirty day suspension. The second most Oh serious disciplinary action. The employer could've taken a reasonable relationship between that and the conduct considering all the mitigating circumstances. No public policy violation in the arbitrator's award It's very hard for employers to win these public policy cases and it's because of the focus on the remedy the focus on the award award. What courts want to see particularly in these termination cases in order to find public policy violation they wanna see we something out there in a statute and court opinion something out there that says the punishment selected by the employer is the only punishment available for this type of offence so in this circumstance? You'd want to see something something like a state statute that says that if a corrections officer falsifies a document and is dishonest that corrections actions officer must be fired but if there are alternatives that are possible in whatever. The State Regulatory Regulatory System is or statute accord opinion. If it's just that this is unacceptable conduct and the conduct violates public policy. I say it's not going to violate public policy for the arbitrator to choose a different disciplinary supplant. Sanction what's at the heart of this. What's really going on with these public policy cases and why these this exception is so narrowly interpreted by the chorus? And what's going on is courts don't want to interpret arbitrators opinions Indians. They don't want appeals from arbitrators opinions. They figure if you go out and negotiate a contract that says that arbitration as final and unbinding you know what that means arbitrations GonNa be final binding and it's going to be a rare rare case where a court will invoke this public policy exception to overturn at a Labor are portrayed as opinion that has been and rendered under a contract clause that says arbitration as final and binding. If you want appeals into the court system from an arbitration decision. Say these courts negotiate that into your collective bargaining agreements. Don't go to us. Don't come to US looking for us to create a broad exception allowing you to appeal arbitrator's opinions that you happen to disagree with well. That's it for the August. Two Thousand Nineteen edition of a first Thursday We hope you join us for our premium podcast series. We've got some really interesting interviews coming up Including one on on the relationship between federal state and local employment laws and and how employer can get into trouble by complying with one on but maybe not complying with all of them or the others Also we look forward to joining us if you can in Las Vegas in September. We're going to have our grievances and Arbitration Seminar. That's always well attended. People love coming to that seminar and check us out out of course on our webpage and eller. Is Dot Com. And if he can't get enough of US Do consider our facebook page we. We won't be posting any memes on our facebook page. I'll let you know that our facebook page which is eller. Is Online. I'll post something on their three three to four times a week commenting on developments around the country could be a contract. Settlement could be the latest greater social media post or it. It could be any of a number of topics that impacts the public safety workplace with that. This is well aitchison signing off.