First Thursday, January 2020
Hello folks welcomed the first Thursday the monthly podcast from the Labor Relations Information System. My name is will aitchison. I'll be your host today while we go over. What are this is really going to be sort of a jam packed podcast? There'd been a lot of stuff going on that I wanNA talk about but I wanNA start on somewhat somewhat of a personal note. I'm recording this on January. Second the first Thursday of twenty twenty and I opened up the papers this morning opened up the papers. You still say that I actually went to a whole bunch of news feeds on the Internet and they dominant story involving the public safety. Labor world is a photograph that has been posted on a social media account of a group of it. Looks like about about twenty five or so Detroit firefighters posing in front of a burned house. It looks like one of those end zone celebrations that that you have in the national football league that are now aloud on its firefighters in their full turnouts axes and everything posing in front of a fully involved involved house The head of the Detroit Fire Department has already announced. There's going to be investigations and referred or to the photograph and the act of posing Ford as despicable There are justifications that are being offered that the house was empty. Thank goodness That the house was far too involved to put out a fire to do anything other than contain it. And make sure it didn't spread but I suspect those justifications expectations aren't going to get in the way of disciplined for those firefighters. A wider photo. They were celebrating the retirement of Italian chafe. Well because we're at the start of the year and and people you know historically make New Year resolution's can I propose pose a couple of them dealing with social media first of all for all public safety employees who are out there. Stop stop posting anything about your jobs. Stop posting anything about politics. We I have seen hundreds of police officers. Deputy Sheriff's troopers firefighters get fired and two thousand nineteen because they wanted to share their innermost thoughts with the World Socia- social media posts are forever and remember member. There's no such thing as a private social media webpage just simply stop at this good fulcrum right a good point on which we can turn the start of the New Year and not have any more posts about the job or politics. And secondly if you're going to post post something on social media make it positive and I say this from a broader perspective than just the world. We live in dealing with public safety labor issues. I say this from the perspective of the world that we're living in. There's just simply too much negativity I'll vow myself. I'll go the entirety of two thousand twenty without one negative social media post. Can we all do without okay enough of that onto the cases and I want to start with a case out of California. It's a small police department. The oakdale police department and California. They only have twenty two officers and they managed to conduct opt-in internal affairs investigation. That did just about everything wrong. And not only that they actually hired a consultant to do it as as you know small agencies don't always have dedicated internal affairs or something like it Department so they will occasionally only contact contract with an outside investigator and so wasn't Oakdale. So what what kind of spectacularly wrong in Oakdale. Well this all starts on March twenty six two thousand eighteen. There's a lieutenant in the police department And he's worried worried about how the video files from. Body Cams are indexed and he loved into the Department System To check it out and and he brought his concerns to the police. Chief Fella named Scott Heller and what they were pouring over was an unusual filed that had been marked delete and what the file was deleted. It was just marked. Delete what the file was was a video clip from the body Cam of someone who's identified in the report that I read only as Sergeant A. Hey and what it contained was a video that where a body cam had inadvertently been left on during a morning. roll-call and briefing. And you know what if you have a policy bodycam policy where The employer has has the ability to randomly review videos for evidence of potential misconduct. These sorts of cases are going to happen. Right you're they're going to record interactions that are not positive interactions It's kind of inevitable. That's one of the downsides of that random review or trolling trawling or whatever you WANNA call it sort of policy. Well that's the policy. They have in Oakdale. And so what do they see on this video video. The video record sergeant a and again this is during morning. Roll call and briefing and in the briefing room Rome afterwards. It records sergeant a saying something to the effect that sergeant be another sergeant finally had his dream come true. What was the dream? He was able to arrest a black person. Sergeant a made the statement while holding up a picture of a symbol bowl that was associated with white supremacy suggesting that the picture belong to sergeant. Be sergeant and aides comments related to an arrest that sergeant be it made during the prior shift where one of the suspects taken into custody was African American. There were other officers present in the briefing room and the opinion I read calls them officers C. D. and E.. So that's that's the you misconduct. That the chief chief Eller sees on the video what does he do. He retains an independent investigator. Take a look into the conduct in the video. Well I guess you can understand going out to an independent investigator and a case where you've got five of twenty two officers who are captured on the video Well no word artist to how they found this particular independent investigator so the investigator decides you know what I'm GonNa do is I'm gonNA divide these people up And sergeant a is going to be the subject of the Investigation Sergeant B and officers so d. n. e.. I am going to label as witnesses. The investigator talks with the chief. The chief says look all the witness officers. Sergeant Sergeant be and the other three. I want you to give them instructions that they are not to discuss the investigation with anyone. Okay let's stop. I pause for just a moment. Had things gone wrong already. Yeah they've gone wrong already. They've gone wrong already in two ways. The first is that they suspect witness dichotomy. That seemed to be in place here in Oakdale. That's actually irrelevant as to whether or not the officers are entitled to representation under the Winegarden rule. It's it's not the employers designation of a an officer or firefighter who's ever being interviewed. Asa Asa witness or a suspect that matters what matters is does the employee reasonably believe they could be subject to disciplinary action. And if the the answer is yes they get union rep so I think it's really time largely throw out this witness suspect aspect Designation it not only doesn't help at Leeds employers down the wrong road. So that's the first thing that goes strong. Secondly the chief tells the and the investigator order the witnesses not to discuss the investigation investigation as you'll hear me say in a few minutes. That violates California Law and likely the law in every three other state that has a statewide collective bargaining law. Okay so the investigator and meets with officers C. D. and he he and Sergeant Bay gives them pretty much identical notices. It tells them they're not the subject of the investigation. It tells them they do not have the the right to be represented during the interview and it orders them not to discuss the interview or investigation with anyone now. I I usually don't have my union lawyer hat on. When I'm doing these podcasts? I try to keep these things as neutral as I possibly can vape ape possibly can't keep them but on this occasion. Let me put my union hat on for a moment if an employer there is going to violate the law. It's very helpful. If they do so in writing and I can just imagine the lawyer for for the Oakdale Police Association I guess as Police Officers Association Peo- a there. I can just imagine the lawyer looking at this order are there is in black and white. The employer says you're not entitled to a Union rap and you may not discuss this with anyone that that sort of becomes exhibit one. Or that's what that document becomes. Okay so the investigator those on in an interview the various officers When it gets to officer see he instructs officer see that the no contact order that he has given them includes any union representative really? I made you cannot even if if you're going to insist on confidentiality because of the nature of the investigation more on that in a moment. You can't exclude the employees from being able to talk to their union representative that's protected activity under the law. You can't do that by the time. The investigator gets to officer. He not only tells officer e you don't get a representative he he says you don't need a representative and then a follows it up by telling officer e you can be disciplined if you're you're untruthful with as interview okay. Now let's go back to Weingarten again. You're entitled to a representative if you reasonably leap believe you could be subject to discipline as a result of the interview. You tell an officer you don't get any representation because because you're just a witness and then you tell the officer but we can't discipline you if you're untruthful during the interview and then you tell the officer again but you don't get a representative This is just sort of a lovely fact pattern isn't it. Well finally the investigator interviews sergeant urgent a and he orders sergeant a not to discuss the interview or investigation with anyone makes an exception for Ah Sergeant as representative remember sergeant as the suspect and as an investigator says if you failed to obey my directive the no contact order. That'll be grounds for discipline up to and including termination from employment. The association filed unfair Labor practice complaint with California's Public Employment Relations Board And it sort of says I am. I haven't bothered to go read the complaint But I can imagine imagine what it said. was they violated everything everything you can possibly violate about how to do an internal affairs investigation. They actually did it in. I can kind of Magin. That's what the complaint would say of course because lawyers would probably right it it would be much longer and involve billable hours whereas but that's pretty much what the complaint is going to say. It goes to an administrative law judge and the administrative blodget says really less happened. Actually the words that the administrative law judge used or there is no more fundamental no mental right afforded employees under the statutory collective bargaining scheme than the right to communicate with others about working in conditions. Working conditions include the circumstances underlying and surrounding an investigation into alleged employee. Misconduct is conduct. The association has established a prime facial case that the city interfered with employees protected rights when when it issued the confidentiality directed to both the percipient. Witnesses and sergeant a barring them from discussing the investigation Gatien with other employees. I'm not gonNA drone on and on about the rest of the Al Jay's Pinon suffice it to say he finds the obvious S. Weingarten violation And says you know. It really doesn't matter if you're calling witnesses if they reasonably believe they could be disciplined glen and your behavior in this investigation employer leads them to believe that they could be subject to the disciplinary process. I do WANNA conclude with a couple of other lines from the the Al Jay's opinion. And and I think these lines are very important because the law here isn't that no contact. Orders are illegal legal per se the lawyers that blank kit. No contact orders are illegal per se a no contact order may be appropriate. Maybe completely listen on a case by case basis depending upon the investigation and right now you may have an investigation in something that is highly confidential Perhaps it's an investigation where there's an allegation of conspiracy among employees. He's IT May. Well be that under some circumstances you could have a legitimate no contact order. What you can't say is don't talk to anyone? The one about those. Don't talk to any other employees period. It's GONNA be a case by case determination now. How did the hearing Officer captured that principle. Oh it's got three sentences or maybe two they long That are worth reading. The city also seems to suggest that allowing the four percipient witnesses to consult with the association would have undermined the integrity. Take the investigation because it's representative could have acted as a conduit between the witnesses. These general facts without more four are insufficient to substantiate the city's concern that the corruption of its investigation was probable. It was incumbent on on the city to look at the specific individuals involved. The specific facts presented to first determine whether the witnesses needed protection evidence. Silence was in danger of being destroyed. Testimony wasn't danger of being fabricated or there was a need to prevent a cover up in other words. You've got to we do a case by case analysis before you issue eight no contact order. Could well be that. You have five witnesses in an internal affairs investigation and one of them. Could it could be that a no contact order is appropriate for that one witness a very carefully crafted one right. It can't forbid the employees from talking with their Union Rep. It could be that you have one where the no contact order is appropriate and and four where it isn't employers if you WANNA go down the road of no contact orders. What you need to do is make sure that you've got a system in place? Nice to make that determination in advance. Now I WANNA follow up on that a briefly with some information from Washington. DC and in particular about the National Labor Relations Board. You may have seen some of this In the month of December the Analog Bay which is now completely dominated by appointees from president trump. the Anna Larvae issued a series of rulings and decisions that are being referred to on employer side blogs written by employer lawfirms as Christmas presents for employers around the country. And there's a whole range of these decisions and they. They overturned a precedent that is years old and and come up with new rules in every case the employers one Whatever it was the issue was the firmly pro employer at this point? And there's no question about that and the cases involved things like Oh can you have a dress code policy that limits employees firm wearing union and signet work. That kind of mild little area area and of course the employer one that There were all sorts of changes to election rules making it far easier air for employers to defeat a union election And there's also most importantly for the purposes of discussion Russian of the California case that I just talked about The National Labor Relations Board issued a new decision that that takes the opposite approach to that that California's Public Employment Relations Board took and takes the approach that you can have what he calls a facially neutral workplace rule that limits confidentiality thirty two the duration of an investigation rule that says Employees who are interviewed cannot talk to other employees. He's about whatever. The subject of the interview was and what the national rb does is to overturn earn the case by case analysis that I just told you came out of California and is likely the result in other states. So why am I saying that We have the National Labor Relations Board. The preeminent Labor board in the country is going in one way. Why am I saying we should expect the rule to be different out there under state collective bargaining laws? And I think the reason is this is that state labor boards have just become fundamentally tired of the politics at the Analyzer Bay It seems now like every time we get a new president We get the president appointing People who are out there too. They perceive their job is to do the bidding of either employers or unions. And you have these wild swings and precedent where the Anna Larbi. RB's turning cases sometimes cases for example in this Workplace investigation confidentiality issue sometimes cases. That are only two years old there. Overturning them and they're not overturning on the basis of new facts it's just simply a different philosophy and I think what State Labor boards words are saying. And you see them now. Increasingly rejecting precedent. That's coming out of the Labor board or saying as you know we. I don't know what's going on with you folks over there in Washington but we need stability in our labor relations systems. And we're not going to get them. If we simply bounce our precedent around like a political football exactly the way you are doing it so I would firmly anticipate here that the fact that the Anna Larbi has decided something different that you can have this general workplace confidentiality. Not Rule isn't going one state Labor board one little bit. I think they're going to continue to adhere to the old rules about confidentiality while I'm talking about federal agencies another agency that was busy and was busy in a way that was very clearly is friendly to employers is the Department of Labor the Department of Labor on December Twelfth Two Thousand Nineteen issued new regulations on how to calculate the regular rate of pay to reset the regular rate of pay under the fair Labor standards. Act that's the thing that gets multiplied by time and a half to produce is the NFL essays overtime rate and so the regular rate becomes very important as to what goes in it. And what doesn't go into the law forever has been that when your computing the regular. You have to take into account all and I'm quoting here renumeration nation for employment And so you see a lot of litigation about what's for employment what goes into the regular rate what is it at to multiply by time and a half to get to the overtime rate and the new regulations that the Department of Labor issued on December twelfth basically. They say there's a whole lot of things you don't have to include. In the overtime rate in some cases were versing Decisions that the Department of Labor itself had made a dozens and dozens of years ago In some cases taking positions contrary to those taken by federal courts of Appeals These are very controversial regulations and a lot of ways but once again it was it was Christmas in Washington. DC for employers and This is another area where it was Christmas. So what does this particular present. What does this give to employers? Once they'd undone the wrapping. It says that these things don't have to be included included in the regular rate I pay in lieu of holidays so if you have an lieu of holiday and you get paid for the time instead of taking time off even if it's paid at a later date that doesn't get included in the regular rate of pay Siklie buyback payments so you have a system where the end of the year you can cash out Accrued but unused sickly. If you don't use use it do you need to include the cash from those buyback payments in the regular rate this one. Where Federal Court of Appeals is actually said Yeah you've got to include those IOS and the regular rate department of Labor Says No The cost of offsite parking are wellness programs or Jim access assert fitness classes. The cost those things don't need to be included in the regular rate employee discounts on retail goods and services don't need need to be included. Tuition reimbursement doesn't need to be included. employer contributions to health savings account. Don't need to be included did it State or locally mandated payments or penalties liked. Call back pay show up. Pay that attach when before before or after returning to work scheduled. The employee is not provided with the expected amount of work. So you show up and it's unclear unclear how this would apply to overtime minimums callback minimums. That are a regular feature public safety Collective bargaining agreements reimbursements for a business expenses including a cellphone. Plant doubt need to be included. In the regular rate organizational membership dues exam fees travel rabble even if not incurred solely for the employer's benefit does not need to be included in the regular rate signing bonuses. Don't don't need to be included in the regular rate and they even got into things like office coffee or snacks provided to employees as gifts chiefs not included in the regular rate employer contributions to benefit plans for accident. Unemployment legal services don't need to be included in the regular rate so a whole slug of things that don't need to be factored into the overtime rate under the fair Labor Standards Hander Tech and unlike what the final are is done. These regulations I do think are going to have an impact in public safety labor world because some of these some of these payments are now being calculated as part of overtime by the employer. There in fact built got into these off the shelf payroll systems such yet because they've been the law for so long they've been the Lod some of these cases they've been the law Ford decades so in any rate If you if you're in the business of trying to figure out how to calculate overtime under the NFL Essay go look up that Department of Labor's December twelve two thousand nine hundred thousand regulations will post them on our website. Okay let's talk about bargaining and Lexa bowl. Well what's lexical most of you know but some of you may may not lexical as a private company. It's out of California and one of the things that lexical does is to write model rules. They actually sell these rules to various agencies out there around the country and And you can pretty much by an entire policy manual or many portions of even have policy manual from LEXICAL and one of the sections that lexical will give you if you want our standards for conduct conduct. So what am I talking about Alexa Bowl for well remember that. An employer has what's known acid asa continuing duty to bargain. That means before it makes changes and a topic that has mandatory for bargaining. It's got to negotiate. Those changes ages with the Union has to provide notice of the intended changes and then if the union demands to bargain the changes that has sit down with a union and talk about them. If if the changes impact wages hours or negotiable working conditions this continuing duty to bargain applies. Even when you've got a contract that is in effect that collective bargaining agreement. That's in effect unless for some reason there's something in that contract where the union has waived the continuing dude due to bargain and most collective bargaining agreements in this country. Do not wave the continuing duty to bargain. Or if they do it all they only do so for some some very narrow topics so how does all this come up. Well comes up In snohomish county Washington snohomish Orange County is the county that has just north of Seattle In Washington's puget sound. It's a a pretty large employer snohomish county as just prior to two thousand eighteen There was no one place where employees of the Snohomish County Corrections nations bureau at the jail system and so much county. There was no one place where employees could find all of the workplace policies and procedures seizures. There were two policy manuals always helpful to have to rather than modern right One the dated from around two thousand six and the other from in two thousand nine each of those contained some policies and soap's that remained in effect until two thousand eighteen In addition fission the county had a file sharing platform that contained other policies and directives. And because all of these policies are so decentralize centralize sometimes employs had to actually search their email to figure out what policy applied to a given situation that you wait so clearly a mess clearly. Lack County needs to fix this and what it does is to go around sound Alexa poll and they come up with a new nine hundred page policy manual. They've used the generic DOC lexical policy manual. Sat Template and almost all of what they implement is verbatim out of the LEXA bowl policies. The union representing the employees and the correction spirits called the snohomish county correction skilled files. Thousand Unfair Labor practice complaint with Washington's Public Employment Relations Relations Commission and says hey look continuing duty to bargain these policies concern concern working conditions They concern in some cases. Hours of work. You've got to negotiate over it counties answer Sir is there's a real core issue here wait. I think we have any obligation to bargain. These policies policies this is our manual We think that we don't have to bargain anything about it. All it is says the county is a restatement of our existing policies and practices in new language and the county says we didn't intend to enforce new language. That changed anything. Even though there is some in there we D- We didn't intend to enforce that and we certainly don't intend and to change our practice so it's all goes to a hearing officer for Washington's Perk and Washington. Park says a luck. Let's let's cross a threshold here to begin with. Are we going to look at this policy manual as a whole the nine hundred pages and say yes you after bargain or no. You don't have to bargain over the whole thing or are we going to look at it on a policy by policy basis and you almost almost here the hearing examiner exhaling a long long sigh and saying quite correctly. We're going to have to look at added on a policy by policy basis and the reason is is that there's going to be many things in a policy manual. Most of a policy policy manual is not going to be negotiable. Because it's not going to affect wages hours or working conditions. And that's why a a policy by policy approach is so important that they they hearing officer then crosses the next threshold. And what's the next threshold. Is this policy manual significant enough change to warrant bargaining and they the the caring officer says Look County when you tell me that. Did you even like read what you wrote. Here's a phrase as says the hearing officer out of the LEXA poll manual and tell May county why you think this isn't a negotiable. Oh working conditions the phrase quote your job your future and in many cases your family's future and security depends upon your compliance with these policies rules and procedures. All members are to conform to the provisions of this manual all prior. You're an existing manuals orders regulations. which are in conflict with this manual are revoked except to the extent and outside document cover subjects subjects not covered Byron conflict with this manual and then drummer all employees of the office shall be subject to disciplinary action in accordance with the provisions of this manual and for violation of the rules and regulations set forth? Here I'm really really you're GONNA put that stuff in a manual. Let's go back to the first line your job your future. And in many instances instances your family's future and security depends upon compliance with US manual. This is like the employer is treating these corrections officers like children right and threatening them in that fashion. I WANNA know why they didn't include dogs in that you know the family's family's future and security I think I'd at least in our house we'd be including our dogs and okay. Well the hearing officer. Dan Turns to the specific issues. Where there were disagreements over negotiability and The hearing officer finds a lot that is negotiable for for example. A new fitness for duty evaluation process is negotiable because it has some requirements for disclosure of confidential of medical information The hearing officer finds policies like How medical files are to be retained? What what a drug testing policy looks like fines? All those things to be negotiable. The policy manual has language regarding a workplace searches news and weather lockers or private That was a change in past practice. The hearing officer finds that all negotiable ends up looking at more than a dozen policies. Finding some negotiable some not negotiable will post this decision on the web page on our web page in case you WanNa take a look at that in case you have a lexical manual or electrical manual is in your future But in the end they hearing officer ordered the county donate to rescind all portions of the LEXA POL policy Where there were mandatorily negotiable topics and to reinstitute the the previous policies a word about lexical spells? Not The only outfit out there. That's engaged in the business of writing. NAYS policies and I probably sound at least implicitly. Critical of lexical Lexa polls else policies. And I really. I'm not I mean. I do think they do a good job. They're pretty thoughtful about their policies. But what the putting out there with their generic policy manual is just a hat a generic policy manual. You can't adopt blindly adopt a lexical flexible. Oh policy for your agency. You'RE GONNA run into trouble when you do that. Because it's almost a certainty that the lexical or whoever wherever else you buy your off the shelf policy manual from well contain provisions. That would call for changes in wages hours and working conditions. If you're going to go to off the shelf policy manual in need to spend the time to look at the manual line byline word by word to make sure that it doesn't change the past practices in your agency or if it does then you have to make sure if you're an employer that you negotiating over those changes with the Union. This is much like when you have an employer transitioning to a new payroll system when you're in the process of doing that translates transition in need to be checking. What the defaults are are in the new payroll system against the practices of the employer and the practices that are mandated by the collective bargaining agreement? Uh otherwise you're going to run into trouble. Don't just buy these things off the shelf. I've got two more cases. I WanNa talk doc about the. They're both going to be very brief because they fall under the heading of reminders. I think more than anything else as to what the lie is. One concerns the standard for fitness for duty evaluation and the other concerns whether an employer is obligated to arbitrate over a metoo grievance. So let's take the fitness for duty. Evaluations I And by the way just kind of as a news update One of the books that Elleray s publishes is called the rights of law enforcement officers. It's in its seventh edition. I'm in the process us right now of updating it and taking it to its eighth edition and it is a process that has just. I've got to tell you it's almost mind numbing. I am at at least glancing at a and I wish I was making this up. But I'm not tens of thousands of cases decided in the last six years involving Alban the rights of law enforcement officers in the workplace and then in some cases creating new chapters in the buck and other cases substantially rewriting. Jeff have chapters and in other cases just simply supplementing. What's in a chapter by a newer cases and and twists and turns on the law and one of the areas where there's been a lot of action lately and with respect to the legality of fitness for duty evaluations? So we have a new case that came out in the next in the last month and its case. That's going to be in the book because I thought it was a pretty important content and a good reminder as to what the standards are for those So let's talk about. This involves a police officer by the name of Brian Gibson. He worked for small. Police Department has called Tau Loss. Ta W. A. S. Police Lisa thirty And he worked for a few years when he was in a serious car accident and this is a car accident on duty hurt. It is back so badly. He couldn't come to work for over six months when he did. He needed accommodation His doctor wrote notes restricting his ability to to left over twenty five pounds. The doctor said he could only work the day shift. The authority accommodated those restrictions but Gibson's back didn't get much better. After a year. He went back off on medical leave for another four months. He then returns a second time but his doctor says he can only do light duty. The authority tried to accommodate those limitations by putting Gibson on temporary light-duty position where he could do do the work That had to be performed without the need for heavy lifting and when he'd been on duty for several months than his doctor clears him says you can go back to work as a patrol officer. The authority says just one minute here Before you go back back to work you are going to need to go for a fitness for duty. Evaluations the phrasing is different and And the cases cases described as a functional capacity exam but essentially it is the same thing. Gibson participates in the exam. He passes it goes back to work for one week and he's off on medical. Leave again. Why this time he said that the lifting that was involved called in the exam aggravated his back injury and this time Gibson soups and one of the important parts? Parts of this case is whether or not the authority had the right under the Americans with disabilities act to compel Gibson to participate eight in the exam and a Federal Court of Appeals. This is the sixth circuit. Court of Appeals disagrees with Gibson and dismissed his client right. So what does the court say. The court says first of all. Yeah it's clear the. Ada applies to fitness for duty evaluations because the ADA explicitly says that the employer cannot require a medical examination unless it is and here are the two standards unless yes. The employer has reasons that are job related and consistent with business necessity. So what does that mean. And the court hearkens hearkens back all the way to a string of cases that includes What I think everybody in the country? Regards the seminal case in the area Which is a nice circuit decision call Brownfield versus city of Yakima will post that one on the webpage as well And the sex. Arkansas says look it's the employer's burden to prove that there is significant evidence from which a reasonable oh employer what want to inquire as to whether the employee was capable of performing the job so what that means means says the court is the employer in this case. The police chief who made the decision had to have evidence had to had to have some quantum of evidence and that would cause a reasonable employer to question whether or not this employee can do the essential functions of the the job and Gibson's case. The court says that evidence was ample and the chief who made the decision to require. The exam was fully informed of that evidence. What's the evidence? The court points to the fact between us to medical leaves Gibson admist almost a year of work immediately before the exam. He worked only light duty and his doctor said he wasn't physically capable of performing all of a police officer's duties and during them of the time when he actually did as a patrol works a patrol officer he had restrictions on when he could work and what physical activity he could do that says the court is enough in the way about it on Sta caused a reasonable police chief to determine that a fitness for duty evaluation was necessary so just a reminder. There's nothing novel about that holding by the court. It's it's something that that standard standard the reasonable employer standard and in particular in the context of the public safety workplace kind of the reasonable police. Chief Sherifi achieve Standard that's the standard that applies in the country. Okay what about the me to kiss Well a little bit of factual your background about this case. This comes out of Rockland County in New York and it's a corrections case and it involves What's notice the superior here earlier Officers Council of the Sheriff's Correction Officers Association? That's a mouthful but that's the name some of the Union. I'll probably call them a union. The union here are maybe I'll call them because it's going to become important. I'll call them the council. The Superior Officers Council these are supervisors and their parties to collective bargaining agreement with the county. And there's a clause in the collective bargaining agreement that that requires members of the council to be paid a certain percentage more than the rate of pay of corrections officers servers that they supervise so if the corrections officers go out there and get a raise sometime during the term of the contract then that that means that that raise going to have to be given to the superior officers as well. That's an emmy to clause one of several forms of a me too clause you see in many collective bargaining agreements So the county goes out and it negotiates an agreement with the corrections corrections officers union. Not Spiro officers and it increases salary rates in for the years two thousand in sixteen and two thousand seventeen however because this contract isn't negotiated until December two thousand seventeen. The question comes up is are these. He's raises GonNa be retroactive and the corrections officers agreed to waive retroactively. So there's no retroactively under the corrections officers his contract but the superior officers then file a grievance on behalf of their members and they say we want the retroactively proactively. They're giving the raises now. But they want the retro-activity that they corrections officers did not get for two thousand sixteen and two thousand seventeen that county denied the grievance on the grounds that the collective bargaining agreement didn't say anything about retro activity nobody and also on the grounds that agreements was a dead loser in the county's judgment The association then demanded arbitration so the county Johny suit And the county sought a court order preventing arbitration and that issue ends up and a an intermediate appeals appeals court in the New York State Court system. And the court says. And if. You've been listening to these podcasts. For a while you can predict what the court Gordon going to say here which is go ye forth and arbitrate. So what are the standards. The court says there's a two part test first of all. Is there any statutory constitutional or Public Policy Prohibition Condition Against Arbitrating the grievance. Is there anything in the law that would prohibit arbitration over this topic and the court says no this. This is nothing there's no statute that's involved here. there's nothing about this. Grievance that violates public policy may be wrong maybe dead loser loser of a grievance but it's doesn't violate public policy so then we moved to the second part of the test and the test is we then look at the collective bargaining agreement to see whether in fact the parties agreed to arbitrate the particular dispute and the court cautions that quote the sentence in examining the collective bargaining agreement. The court must merely must merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement if there is such a relationship the court should rule the matter arbitral so in other words. This isn't a question of whether or not got the contract allows the arbitration of this particular grievance. It's rather whether the grievance since relates to a broad subject that is covered in the collective bargaining agreement. So now now you know again how this case is going to come out. Let me give you the last couple of blinds. From the court's opinion the arbitration provisions of the contract at issue is broad awed. And there's a reasonable relationship between the subject matter of the dispute me too and the general subject matter of the contract although some uncertainty exists as to whether the subject matter of the dispute is encompassed within the salary provisions of the contract or whether the parties contemplated that separate agreement would be required for retro-activity any alleged ambiguity in the contract regarding the coverage of any of its provisions. That's a matter of contract interpretation for the arbitrator to resolve English language translation. You agree to final and binding arbitration in your contract you've agreed to final and binding arbitration in in your contract. Don't come to us with an argument that this particular grievance shouldn't be arbitrated because it's a loser because it's wrong wrong that's foreign arbitrator to decide not for the courts to decide. I want to conclude by reminding reminding me we've got a couple of great seminars coming up that you ought to think about in both of them. registrations are going pretty fast and I recommend if you're interested interested that you check us out at aller. Is Dot Com. The first one is march fourth through six than Las Vegas and it's on collective the bargaining for public safety employees This is a seminar that really gives you all of the basics. I think that you need to prepare Harry yourself for an upcoming bargaining session. We'll talk about everything from What our Basic economic trends. That are out there. What topics bikes are mandatory for bargaining? And what are not And There's an entire day spent on the nuts and bolts of the bargaining process starting with preparing for bargaining and ending with a ratification We'll talk about things like an employer's ability to pay and comparable jurisdictions in learn how you assess total compensation it's just really a A very comprehensive approach to collective bargaining great speakers The other seminar I want to talk about is the first one that we've done in many years on the east side of the Rocky Mountains We've I've I've wanted over the years to be the on the east side of the rocky mountains. Many times we tried putting seminars and places like Chicago and New York and Fort Lauderdale Dale in Orlando and Dallas and it turns out that public safety employees. Really want to go to Las Vegas more than any of those places. But we're sticking our toe in the water again and April fifteenth through seventeenth. We're going to be in Nashville Tennessee for our first ever health and wellness programs For Public Safety Employees This is one where we do anticipate this are selling out. I will hit the maximum capacity. Passively on this I really looking forward to this. Is My firm believer that This approach that we're taking a wellness now As long long long overdue and that we need to be having a much more constructive conversation about wellness in the public safety world This this seminar will involve Three Hours for me talking about wellness programs and the law. So how wellness programs impact. Things like the Americans with disabilities act the FMLA the genetic information nondiscrimination act and the like You'll also hear three hours from Stephanie Con. WHO's I think? Become the nation's premier expert on the issue of resilience and how you increase resilience and first responders founders. Stephania will be talking about Primarily how does an agency and how do unions and how to employee's all prepare air themselves for the inevitable High Stress Moments and trauma that will be associated with a public safety officers job. How do you prepare yourself? So so that. The impact of that trauma is not career changing We then have a whole day. That'll be moderated by my law. All partner a Neo Korea Talking about what I think has a wellness program from A to Z everything from how obvious startup program and and what do you want. What types of wellness are you looking at psychological wellness physical family wellness Financial Joe Wellness. And the like Talking about whether or not participation should be mandatory or not you need confidentiality and the program. What are the metrics for success Neil will be hosting just a wonderful panel Where we're going to have police and fire chiefs chiefs from around the country Well have the director of Public Am Employee Assistance Program From Las Vegas Nevada And we'll have some specialists from behavioral Health Sciences programs as well as rank and file police officers. WHO'VE I've been involved in the end? Firefighters have been involved in the development of wellness programs can be a great panel. It's going to be jam packed day and then On the third day seminar. We're going to hear a three hour presentation for to individuals from the Indianapolis Office Office of Professional Development and wellness in the Indianapolis Metro Police Department. Indianapolis is one of the truth. Success stories in terms arms of the development of a wellness program thankfully. There are several that are out there right now and we actually got to choose from several Ah there there are places like Las Vegas and San Diego that have absolutely great wellness programs and we selected Indianapolis because because we we thought it was just a wonderful example of a good wellness program produced as a result of a joint labor management effort. Effort so Eddie. Rate if you can join us out there in Nashville Tennessee. April Fifteenth Through Seventeenth and twenty. Twenty I am not going going to lead that city without getting some Nashville hot chicken from the thought of all Nashville hot chicken so with that. Thank you for joining me for this podcast. Hope to have you with us for February first Thursday and for now this is well aitchison signing off.