Court refuses to overturn an arbitration award that rejected the punishment of an off-duty corrections officer that illegally possessed TV cable decoders. Disparate penalties shown.

     Noting that management had conceded that it has retained other officers who have been convicted of committing misdemeanors that were not directly related to their employment, an arbitrator declined to sustain disciplinary action against a Rhode Island corrections officer that illegally possessed TV cable decoders -- a misdemeanor. The arbitrator also acquitted the officer of other disciplinary offenses.

     Management challenged the award in Superior Court. The judge denied relief, noting that courts have limited power to overturn arbitration awards in the absence of fraud, or where the arbitrator exceeds the powers conferred on him by the bargaining agreement.

     Rhode Island Dept. of Corrections v. Bro. of Correctional Officers (Algasso), #02-1793, 2002 R.I. Super. Lexis 156 (Super. Ct. Providence 2002).

     • Click here to view the opinion on the AELE website.

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California Supreme Court strikes down a mandatory impasse arbitration law. It violated a section of the state constitution empowering counties and charter cities to set compensation for their employees.

     California enacted the Arbitration of Firefighter and Law Enforcement Officer Labor Disputes Act, Code of Civil Procedure §1299 (2000). It mandated that negotiation impasses must be sent to binding arbitration.

     In passing the law, the legislature declared that strikes by firefighters and law enforcement officers are a matter of statewide concern and are not in the public interest. Arbitration would provide an "appropriate method for resolving public sector labor disputes that could otherwise lead to strikes by firefighters or law enforcement officers."

     The California Constitution provides that the governing body of a county or charter city shall provide for compensation of employees. Compelling local governments to submit to binding arbitration of compensation issues violates the Constitution. The justices said:

"The constitutional language is quite clear and quite specific: the county, not the state, not someone else, shall provide for the compensation of its employees. ... An express grant of authority to the county necessarily implies the Legislature does not have that authority."

     The justices conceded that the Legislature could regulate matters of statewide concern "even if the regulation impinges to a limited extent ... on powers the Constitution specifically reserves to counties or charter cities. However, regulating labor relations is one thing; depriving the county entirely of its authority to set employee salaries is quite another."

     Other states, such as Pennsylvania, have come to the same conclusion; arbitration is permitted in Pennsylvania only because their state constitution was amended after a 1962 decision.

     Five justices joined in the decision, and two others wrote separate concurring opinions. The court did not reach the issue of whether a city or county could agree to delegate impasse resolution to an arbitrator, because Riverside County did not.

     Riverside County v. Superior Court (Riverside Sheriffs Assn.), #S107126, 66 P.3d 718, 132 Cal.Rptr.2d 713, 2003 Cal. Lexis 2426 (2003).

     • Click here to view the opinion on the Internet. [PDF]

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     Appeals court upholds the firing of a Chicago officer who failed to report that shots were fired at a fleeing vehicle and fatally shot an unarmed passenger. The panel also upheld a one-year suspension of an officer who falsely claimed that the driver had attempted to run over the officers.

     Chicago Police officers stopped a vehicle containing a male driver and female passenger for a traffic violation. The car backed away and took off; shots were fired at the vehicle and a chase ensued.

     The vehicle was stopped at another location, and officers approached the couple. The woman passenger was talking on a cell phone, and for some reason, may have picked up a silver padlock. Officer Daniels fatally shot the passenger.

     The officers later reported to internal investigators that shots were fired at the fleeing vehicle because the driver had attempted to run them down, and that Officer Daniels shot the passenger because she thought the padlock was a gun.

     The Chicago Police Board heard evidence from witnesses who disputed the claim that the driver had tried to run down the officers. The man's driving license was under suspension and he possessed marijuana -- which prompted him to flee. Shooting at his vehicle was unwarranted, and the officers were untruthful.

     As for the officer who later fired the fatal shot, the Board found that Daniels:

1. Failed to radio that shots were fired at the fleeing vehicle;

2. Violated a direct order by a sergeant to terminate the chase;

3. Failed to make a report following the discharge of a weapon.

     The Board terminated Officer Daniels, and also found officer Carter guilty of giving false information to internal investigators by claiming the driver of the fleeing car had used the vehicle as a weapon against the officers. Carter was suspended for one year.

     The officers appealed. A Circuit Court affirmed the termination of the shooting officer but reversed Carter's suspension; it also ordered a retrial of two other officers against whom discipline had been imposed. The case then went to a three-judge appeals panel.

     The appellate court noted that the Police Board had found that the driver had not threatened the officers with his car and that the officers' shooting at the vehicle was an unjustified use of deadly force. There was substantial evidence to support the Board's findings, and in Illinois courts may not set aside administrative determinations unless supporting evidence is lacking. The panel explained, in an unpublished portion of their opinion:

"Daniels did not have a reasonable basis for using deadly force. The record reflects ... that no extreme conditions existed ... that justified the shooting because Daniels had no basis for her belief that [the passenger] was armed ... no weapon was pointed at Daniels; Daniels issued no warnings to [the passenger] to drop the weapon; Daniels was not in front of [the passenger] but rather was to the rear and side of the car and could have shielded her position; and, although a suspect turning toward an officer with what could be a weapon might justify shooting, here the alleged weapon was merely being raised rather than pointed at anyone and the shooting was premature."

     The appellate panel also concluded that Daniel's failed to properly report shots fired at the first stop, and disregarded an order to terminate the chase. The panel added, in an unpublished portion of their opinion:

"In this case ... the Board ... found that Daniels disobeyed a direct order when she did not terminate the chase, failed to report the shots fired at 95th Street in violation of a written order and unnecessarily displayed her weapon, all instances of misconduct which are far from trivial and which could lead to a serious breakdown in the efficiency of and the public's trust in the police department if this behavior is allowed to continue.

"The totality of Daniels' conduct is clearly detrimental to the discipline and efficiency of the department and undermines its reputation and makes her discharge an entirely appropriate sanction."

     The panel also reinstated the one-year suspension of Officer Carter. Given his "failure to follow a direct order to terminate a chase and his violation of a written order to report a shooting without delay, a one-year suspension from duty is entirely reasonable given the seriousness of his conduct and its consequences."

     Finally, the appellate court rejected a claim that the Circuit Court improperly joined separate disciplinary appeals. Consolidation is proper "where the separate causes are of the same nature, arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially upon the same evidence, and when a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party."

     Daniels v. Police Bd., #1-01-2419, 2003 Ill. App. Lexis 535 (1st Dist. 2003).

     • Click here to view the opinion on the Internet.

     Note: A civil suit against the officers is pending in federal court: Smith v. Chicago Police et al, #01C4157, 2003 U.S. Dist. Lexis 4944 (N.D. Ill. 2003).

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Appellate court reinstates the termination of an off-duty detention officer that assaulted his wife.

     The officer confronted his estranged wife while she having sex. He chased away the man and nearly strangled her to death. Although he was not prosecuted under the penal code, the chief of police fired the officer.

     A Superior Court set aside the termination because there was no "nexus" between the off-duty acts and his duties as a city jailer. A three-judge appeals panel reversed, saying:

"Of course the inability to control one's temper when it almost leads to the death of a person by strangulation with one's own hands is legally sufficient. One of the biggest risks that a city faces in operating a police force [is] 'excessive' force claims. When an officer displays such temper off the job that a person's life is jeopardized ... the city may reasonably conclude that the officer poses a significant danger of overreaction on the job.

"Jailers do not have the liberty of overreacting to personal slights directed toward them, particularly in the application of their hands to other people's necks. Embarrassing investigations and lawsuits can follow in the wake of such overreaction. Unlike forgiving spouses, prisoners are likely to sue if they are almost choked to death."

     Opp v. City of Huntington Beach, #G025947, 2003 Cal. App. Unpub. Lexis 920 (4th Dist. 2003).

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Rhode Island Supreme Court reverses an arbitrator and upholds the termination of a corrections officer. The officer had been fired because a missing handcuff key was found in the possession of an inmate, with whom the officer had formed a personal friendship.

     After a shift change, a corrections officer assigned to a prison hospital noticed that the handcuff key was missing from the key ring. A search turned up the key in the possession of an inmate.

     An internal investigation revealed that the officer responsible for the missing key had formed an improper personal friendship with the inmate. Moreover, the inmate claimed that he had paid the officer $160 for the key.

     The officer was fired for unbecoming conduct. He filed a grievance and the matter was submitted to arbitration. The arbitrator disbelieved the inmate and noted that management failed to explain how the inmate would acquire the money that he said he paid for the key.

     Believing instead, that the officer had lost the key, the punishment of termination was too harsh. Although forming a friendship with an inmate was improper, that is less of a security problem in a hospital setting. He reduced the penalty to a sixty-day suspension.

     Management challenged the award in the courts. The state Supreme Court annulled the suspension and affirmed the officer's termination. The justices said:

"After careful review of the record in this case, we conclude that the arbitrator did not have the authority to alter the discipline imposed by the director. We are mindful that the core function of the DOC is to ensure that prison inmates do not escape and threaten the safety of the community. Consequently, correctional officers must be held to a higher standard of behavior, and the responsibility of a correctional officer cannot be compromised by an illicit relationship with a prison inmate. To excuse this conduct with a mere sixty-day suspension is an irrational result."

     State v. Rhode Island Bro. of Correctional Officers (Ryan), 819 A.2d 1286, 2003 R.I. Lexis 94 (R.I. 2003).

     • Click here to view the opinion on the Internet. [PDF]

Arbitrator rejects a "shop talk" defense and affirms a ten-day suspension of a corrections officer who screamed profanity in the presence of an inmate.

     A corrections officer lost his composure and began cursing, using words like "pussy", "fucking asshole" and "fucking retard" -- although the exact language was in dispute. He was given a ten-day disciplinary suspension and the union grieved.

     The grievant testified that it was an "everyday occurrence" for corrections officers to curse in the presence of inmates, but he admitted that it was a violation of the agency's standards and practices.

     The arbitrator said that management adequately proved the grievant used profanity and there was no mitigating evidence to warrant overlooking the officer's conduct. He added:

"Regarding Grievant's 'shop talk' defense, his behavior was directed not toward a fellow worker, but toward an incarcerated person over whom he had substantial authority as an incident of his position. ... Grievant's responsibility would have included handling any outburst on the inmate's part with sufficient judgment and control to avoid violating the policies and procedures ... as a Corrections Officer."

     Addressing the issue of punishment, the arbitrator noted that the grievant had undergone a thirty-day evaluation at a state psychiatric hospital and was receiving treatment for psychiatric problems -- including medication.

     However, the grievant had been disciplined progressively for previous inappropriate behavior including receiving a three-day and a five-day suspension within the past several months. The arbitrator wrote:

     "The purpose of progressive discipline is to encourage an employee to correct his behavior before similar misconduct leads to more severe discipline. On the totality of the evidence, I do not find that employer's imposition of a 10-day suspension in the present case constitutes an abuse of its authority ..."

     The grievance was denied. County of Blair (PA) and AFSCME Dist. C-83, FMCS Case #99/16996, 118 LA (BNA) 238 (Miller, 2002).

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A divided federal appeals court holds that an anonymous letter, accusing a prison employee of having a gun in his car, was an insufficient basis to search the vehicle while it was parked on prison property.

     A teacher at a federal correctional institution was advised that the agency had received an allegation that he was keeping a loaded weapon in the vehicle he parked in the institution's parking lot, and informed him that the warden had authorized a search of the vehicle.

     He initially refused consent to search his vehicle, but changed his mind an allowed it about a half-hour later. No weapon was found, but he was fired for initially refusing consent to the search.

     A statement issued by the Bureau of Prisons advises that the organization does not have a policy of routinely searching employees' property, and limits employee searches to occasions when the prison warden "has reasonable grounds to suspect that the employee is in possession of contraband items which, if introduced, could endanger the safety of staff or inmates or the security of the institution ... ."

     Management claimed that it had a reasonable basis for the search -- an anonymous letter accusing an "officer Wylie" of "falunting [sic] the rules" of the institution; the teacher's name is Wiley.

     The Merit Systems Protection Board affirmed the termination as a "workplace search" as allowed under O'Connor v. Ortega, 480 U.S. 709 (1987). The Board said:

"The vehicle at issue in this case was parked on agency property, in a lot that was adjacent to a correctional institution and that presumably was made available to accommodate employees and visitors who had a need to be present at the institution. The agency's need to maintain control over the lot is reflected in the notice posted at the entrance--a notice that, as indicated above, advised all entering the lot that they were subject to searches of their vehicles under some circumstances."

     The Board concluded that the warde had "reasonable grounds for suspecting that a search would turn up evidence that the appellant had committed work-related misconduct, i.e., evidence that he had brought a weapon onto installation property."

     The case then went to a three-judge panel of the U.S. Court of Appeals. It reversed in a 2-to-1 decision, concluding that the anonymous tip was insufficient, as a matter of law, to furnish a reasonable suspicion that the teacher kept a firearm in his car.

     The majority relied on the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), holding that a purely anonymous tip -- lacking in relevant corroboration -- does not provide a basis for an officer's reasonable suspicion.

     The dissenting judge thought that as a prison employee, the appellant had an "extremely low expectation of privacy in his automobile while it was parked on prison property." That "already low expectation was further diminished by a conspicuous sign" at the entrance to the parking lot warning that it is a federal crime to bring upon the institution grounds any firearm and that all persons entering upon these premises "are subject to routine searches of their person, property (including vehicles), and packages."

     Wiley v. Dept. of Justice, #02-3044, 2003 U.S. App. Lexis 9175 (Fed. Cir. 2003) reversing 89 M.S.P.R. 542, 2001 MSPB Lexis 917 (MSPB 2001).

     • Click here to view the Federal Circuit's opinion on the Internet.

     Research Note: Decades ago, wardens relied on signs, notices and forms which purportedly provided an individual's "consent" to search their person or vehicle. People v. Whitfield, 488 N.E.2d 1087 (Ill. App.). Generally, however, courts have struck down notices and consent forms; see McDonald v. Hunter, 746 F.2d 785 (8th Cir. 1984); People v. Whitfield, 488 N.E.2d 1087 (Ill. App. 1986); Adrow v. Johnson, 623 F.Supp. 1085, 1985 U.S. Dist. Lexis 12850 (N.D. Ill. 1985) -- holding that a search of a corrections officer, based on anonymous tip, did not furnish adequate justification; and Scoby v. Neal, 734 F.Supp. 837 (C.D. Ill. 1990).

     However, in 1993 an arbitrator upheld a disciplinary suspension of a corrections officer who refused to allow his superiors to search his vehicle while on prison grounds. He concluded that the officer should have obeyed the order and then file a grievance, rather than act in an insubordinate manner. He also concluded (perhaps erroneously) that the search was legal under a valid workplace rule. Folsom R.T.C. and Folsom Corr. Peace Ofcrs. Assn., 101 LA (BNA) 837 (Staudohar, 1993). [1994 FP 133-4]

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Federal appeals court sustains the termination of a corrections officer who was convicted of assaulting his live-in girlfriend. His conviction implicated the federal domestic violence gun ban.

     A federal corrections officer pled guilty to the charge of misdemeanor simple assault [VA Code §18.2-57] on a woman with whom he had a close personal relationship. Under 18 U.S. Code §922(g)(9), he can no longer legally possess a firearm manufactured in interstate commerce and the warden fired him.

     He appealed, claiming that the law did not apply to him because his relationship with the woman was not, considered a common-law marriage under Virginia law. However, the Merit Systems Protection Board had uncontradicted testimony that the woman lived continuously with the officer for ten months, and prior to the assault, she stayed up to 5 nights a week with him in the same residence.

     The officer also noted that he had been charged with two offenses: misdemeanor assault and misdemeanor domestic violence. He was acquitted of the domestic violence charge but convicted of the simple assault charge. That fact, he claimed, proved the fact that the federal domestic violence law did not apply in this case. The MSPB rejected his appeal on both grounds.

     The officer then appealed to the U.S. Court of Appeals, Federal Circuit. A three-judge panel affirmed the MSPB findings by a 2-to-1 vote. Although the woman had a separate residence, the majority noted that there was "complete cohabitation for at least ten months, and substantial cohabitation for close to a year and a half prior to the assault."

     A dissenting judge said there was a long standing rule of law that penal statutes should be interpreted narrowly and that it was wrong to base a dismissal from the service on a charge not proved before a judge and jury, but which was "resurrected by an administrative judge" in the disciplinary setting. White v. Dept. of Justice, #02-3329, 2003 U.S. App. Lexis 9177 (Fed. Cir. 2003).

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County Ethics Commission in Maryland declines a waiver for the police chief to write a book or screenplay about his role in the 2002 DC area sniper shootings. The chief has filed a suit for injunctive relief.

     The chief of the Montgomery County, Maryland, Police Dept. became a TV news celebrity during the Washington area sniper shootings in 2002. The chief headed a task force to investigate the 20 killings, which took place in four states and Washington, D.C.

     He has written more than seven chapters of a book and sought permission to publish it, including motion picture rights. Publication, however, implicates four sections of the county's ethics law:

§19A-14(a) prohibition against the use of prestige of office for private gain

§19A-14(b) prohibition against the use of county or agency title or insignia without approval of the Chief Administrative Officer

§19A-14(c) use of county agency facility, property, or work time

§19A-15(a) prohibition against the disclosure of confidential information

     Under § 19A-8(a), the county's Ethics Commission may waive the prohibition against the use of prestige if three conditions are met:

1. the best interests of the county would be served by granting the waiver;

2. the importance to the county of a public employee or class of employees performing official duties outweighs the actual or potential harm of any conflict of interest; and

3. granting the waiver will not give a public employee or class of employees an unfair economic advantage over other public employees or members of the public.

     The commission refused permission and said:

"The employee has not demonstrated that the importance to the county of the employee performing official duties outweighs the actual or potential harm of any conflict of interest."

     The commission also rejected a First Amendment challenge raised by the chief. They noted that the federal government prohibits its employees from accepting outside compensation for teaching, speaking, or writing that relates to an employee's official duties.

     The U.S. Office of Government Ethics prohibits federal employees from receiving compensation for outside teaching, speaking, or writing that relates to official duties. The agency promulgated an Interim Rule amending 5 C.F.R. §2635.807(a), published at 65 (172) Fed. Reg. 53650 (9/5/2000) and discussed in Memo DO-00-031.

     Concluding that the chief did not meet the standard for a waiver against the use of prestige of office provision, the commission said there was no need to consider the remaining sections of the ethics law. Ethics Cmsn. Opinion No. 03-011 (Montgomery Co., MD, 2003)

     Note: The chief has responded by filing suit in federal court, seeking an injunction barring the Ethics Commission from initiating any disciplinary action against him for writing a book or screenplay. Moose v. Kellar, #8:03-cv-01414-RDB (D. Md. filed 5/14/2003).

     The Washington Post has reported that the chief will receive $170,000 for the book, "Three Weeks in October," plus an additional amount for the movie rights (May 15, 2003, page B01). On June 18, 2003 the chief, who was currently on military leave, announced his resignation.

     In a separate ruling, the Ethics Commission also concluded that members of the police dept. cannot receive honoraria from speaking engagements related to the sniper investigations. Ethics Cmsn. Opinion No. 03-010 (Montgomery Co., MD, 2003).

     • Click the link to view the ethics opinion [PDF] and the OGE Interim Rule (for federal employees) on the AELE website.

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Fourth Circuit revives a suit brought by a Rastafarian corrections officer who was repeatedly disciplined for wearing deadlocks.

     A uniformed state corrections officer in Baltimore, Maryland, was disciplined for wearing deadlocks. The agency's regulations provide:

"a. Hair shall be neatly groomed. Hair in front shall be groomed so that it does not fall below the band of the properly worn uniform headgear. Hair on the back of the head may not extend further than one quarter inch onto the collar. Hair on the side of the head may touch but shall not extend onto the collar. In no case shall the bulk, length, or height of the [hair], interfere with proper wearing of authorized uniform headgear, emergency equipment, or styled to impair the employee's vision. The length[,] bulk, or appearance of hair shall not be excessive, ragged, or unkept [sic].

"b. (Females) Buns, braids and ponytails shall be permitted on top of the head or back of the head, in a neat manner, provided they do not interfere with the proper wearing of authorized uniform headgear or emergency equipment and do not extend below the collar. Braids and ponytails not secured to the top of the head shall meet length standards outlined in [a].

"c. Only traditional (i.e., historically acceptable for military/law enforcement uniformed personnel), haircuts shall be permitted."

     The officer, a practicing Rastafarian, sued in state court, alleging racial and religious discrimination. The defendants removed the action to federal court, which dismissed his action; he appealed to the Fourth Circuit.

     The three-judge panel noted that the plaintiff alleged:

     1. Women officers are allowed to wear their hair braided and substantially longer than the dreadlocks he wore.

     2. Management had not enforced the policy against at least sixteen similarly-situated employees.

     3. Management granted religious exemptions to a Jewish employee, allowing him to wear a long beard and peyos (long sideburns), and to a Sikh employee, allowing him to wear a turban and long beard.

     Management contended that their grooming policy is constitutional because it is facially neutral and is rationally related to the agency's goals of promoting safety, uniformity, discipline, and esprit de corps among the correctional staff at the facility.

     The panel agreed, but said the issue is not settled because a regulation is constitutional on its face. The plaintiff alleged it was being enforced in a discriminatory manner.

     The panel noted that the "First Amendment ... forbids the adoption of laws designed to suppress religious beliefs or practices unless justified by a compelling governmental interest and narrowly tailored to meet that interest."

     They reversed the dismissal of his religious discrimination claim, but upheld the dismissal of his racial discrimination claim. Seven of the sixteen employees he identified as not disciplined are African-American. The case was remanded to the District Court for further proceedings.

     Booth v. Maryland Dept. of Corr. Serv., 02-1657, 2003 U.S. App. Lexis 8156 (4th Cir. 2003).

     • Click here to view the opinion on the Internet.

     Research Note: The religion is associated with Haile Selassie, the late Emperor of Ethiopia. Also known as the "Lion of Judah," Selassie was deposed in 1974 and murdered in 1975. Rastafarians are named after Ras (Prince) Tafari, Selassie's title before being crowned Emperor in 1930. The movement later was influenced by Jamaicans.

     In New York, a U.S. District Court allowed Rastafarian corrections officers to wear dreadlock spikes. No nexus was shown between the hairstyle regulation and safety or security needs. Brown v. Keane, 888 F.Supp. 568, 1995 U.S. Dist. Lexis 7981 (S.D.N.Y.).

     The Ohio Supreme Court has held that corrections officers can have long hair for religious reasons, if it concealed neatly under a hat. Humphrey v. Lane, #99-206, 89 Ohio St.3rd 62, 728 N.E.2d 1039, 2000 Ohio Lexis 1283.

     However, a federal court in Ohio upheld a ban on long ponytails for male correctional officers. An officer's spiritual beliefs, as a Native American religious practitioner, and the fact that women officers are permitted to pin up their hair, was not dispositive. Blanken v. Ohio Dept. Reh. & Corr., 1996 U.S. Dist. Lexis 16540, 944 F.Supp. 1359, 72 FEP Cases (BNA) 887 (S.D. Ohio).

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Federal court rejects the suit filed by an overweight smoker, alleging that she was unfairly disqualified by the qualifying fitness test for a SWAT-narcotics sergeant position.

     hen the new chief of police combined the narcotics and SWAT units, all officers assigned to the new unit had to pass a physical fitness test. The plaintiff was 30 pounds overweight and smoked. When she failed the fitness portion of the sergeant's exam she sued for sex discrimination and retaliation.

     The judge noted that "other than plaintiff's own assertions, there is no evidence in the record that the males have an advantage over females in passing the physical fitness test." He added:

"It is uncontroverted that successful completion of the physical fitness test was a requirement for the position of SEU sergeant and that plaintiff failed the test. Moreover, plaintiff testified that she was not treated any differently after she complained and that no member of the command staff made any statements that showed an intent to retaliate. ... Plaintiff's subjective beliefs are insufficient to demonstrate the pretextual nature of a legitimate job action."

     Her lawsuit was dismissed. Stahl v. Wyandotte Co., #01-2539, 244 F.Supp.2d 1181, 2003 U.S. Dist. Lexis 2170 (D. Kan. 2003).

     • Click here to view the opinion on the AELE website.

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Union was not liable for a breach of its duty of fair representation when it chose not to pursue the arbitration of a forced transfer of one of two employees who were bitter enemies in the workplace.

     Two postal service employees were embroiled in a long-standing feud and cross-accusations. An internal investigation concluded that the "two employees do not like each other [and] each has sought to adversely affect the other." The report expressed doubt that a reconciliation was possible. More importantly, the report concluded that "their hostility affects the ability of that office to provide high level customer service."

     Because of the size of the office, it was impossible to separate them. The male worker was transferred to another worksite 25 miles away. Because seniority accrues at each worksite, he lost the 15 years of seniority he had built up. He filed a grievance challenging the involuntary transfer.

     Management denied the grievance and the union refused to take it to arbitration. The worker then sued the agency and the union. The trial court rejected the complaint and a three-judge appellate panel has affirmed the dismissal. They said that the union's duty is not merely to one worker or another, "but to all whom it represents, and some union decisions will affect different employees differently," citing Ford Motor v. Huffman, 345 U.S. 330 at 338 (1953).

     The union chose to remain neutral in a feud between two workers. The forced transfer of one of them solved the crisis in the workplace, and a union is not liable for a breach of its duty of fair representation under these circumstances.

     Driver v. U.S. Postal Service and Amer. Postal Workers Union, #01-6079, 2003 FED App. 0140P, 2003 U.S. App. Lexis 9195 (6th Cir. 2003).

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Collective Bargaining - Duty to Bargain

     Seventh Circuit holds that an employer was required to bargain with the union over the use of covert videocameras in the workplace. National Steel v. NLRB, #01-3798, 324 F.3d 928, 2003 U.S. App. Lexis 6515, 172 LRRM (BNA) 2154 (7th Cir. 2003). [PDF]

     Illinois appellate court concludes that a dispute of whether overtime pay for sheriff's deputies should be given as direct salary or comp. time is a bargaining issue and subject to mandatory arbitration. The fact that there was a past practice of awarding comp. time is not determinative. County of St. Clair v. Illinois F.O.P., #5-01-0990, 2003 Ill. App. Lexis 552 (5th Dist. 2003).

     Management did not violate the bargaining agreement when it changed merit rules without bargaining with peace officers' union, where the agency followed a long-time past practice of developing new rules through work groups involving all agency employee units, and where the union was invited to participate. San Diego School Dist. and Schools Peace Officers Assn., 118 LA (BNA) 247, Calif. St. Mediation & Conciliation Serv. Case #ARB-01-0468 (Riker, 2003).

Criminal Liability

     Suburban Cleveland police officer, moonlighting as a store detective, is convicted of involuntary manslaughter. During a struggle, he crushed the skull of a shoplifter. State of Ohio v. Jameel Talley, Cuyahoga Co. Common Pleas Court; rptd. in the Cleveland Plain Dealer (5/14/2003).

Disability Rights and Benefits - Ordinary Disability/ Reinstatement

     Appellate court affirms decision to deny a disability pension to a police officer who injured his ankle. The evidence showed he was able to work as a HVAC technician and to ride his motorcycle. Rizzo v. Bd. of Tr. Evergreen Park Police Pension Fund, #1-02-0747, 2003 Ill. App. Lexis 476 (1st Dist. 2003).

Disciplinary Punishment

     Texas appellate court affirms the termination of a sheriff's deputy who was fired for having sex with an inmate. Bexar Co. Sheriff's Dept. v. Sanchez, #04-02-00251, 2003 Tex. App. Lexis 813 (4th Dist. 2003).

Fair Labor Standards Act - Overtime - in General

     The actual number of hours worked, including overtime, should be used in calculating firefighters "hourly pay" for purposes of setting damages due for underpayment. Singer v. City of Waco, #01-51185, 324 F.3d 813, 2003 U.S. App. Lexis 5858, 8 WH Cases2d (BNA) 993 (5th Cir. 2003). [PDF]

Fair Labor Standards Act - Overtime - Roll Call & Meal periods

     Federal court opts for the "benefit of the employer" test, rather than the "completely relieved of duty test" in finding that detective lunch periods were not compensable time. Harris v. City of Boston, #2002-10123, 2003 U.S. Dist. Lexis 4984, 8 WH Cases2d (BNA) 1009 (D.Mass. 2003).

Family, Medical & Personal Leave

     An employer could fire a worker who took FMLA leave to care for his wife and newborn child, and was actually managing his wife's restaurant. The employer had a rule prohibiting "unauthorized work for personal gain" while on leave. Pharakhone v. Nissan, #01-5955, 324 F.3d 405, 2003 U.S. App. Lexis 6289, 2003 FED App. 0098P, 8 WH Cases2d (BNA) 1006 (6th Cir. 2003).

First Amendment Related

     Federal appeals court holds that management did not violate clearly established First Amendment law in suspending a police officer for his hornblowing activities during a municipal ceremony. The disruption was not speech or conduct related to a matter of public concern. Meaney v. Dever, #02-1783, 2003 U.S. App. Lexis 7505 (1st Cir. 2003).

Hairstyle and Appearance Regulations

     Federal appeals court holds that a judge can ban Islamic headwear in the courtroom. "Jews will not wear yarmulkes. I am Catholic and the Pope would not wear a miter," said the judge. U.S. v. James, #02-3424, 2003 U.S. App. Lexis 9199 (7th Cir.). [PDF]

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Fifth Circuit finds that chronic pancreatitis was an impairment for ADA purposes but the worker was unable to show that the condition substantially limited his ability to eat food, even if recurring temporary conditions caused him to miss work. Waldrip v. General Electric, #02-30155, 325 F.3d 652, 2003 U.S. App. Lexis 6303, 14 AD Cases (BNA) 301 (5th Cir. 2003). [PDF]

Injuries to Employees

     New York's highest court allows a suit, brought by an injured firefighter against a building owner, where he showed a connection between code violations and the fire. Giuffrida v. Citibank, #2-48, 2003 N.Y. Lexis 989 (N.Y. 2003). [PDF]

Last Chance Agreements

     Arbitrator holds that a county employee, who was disciplined for drinking on duty, was not subject to a last-chance agreement, when management decided to give him a letter of suspension warning him that any further infractions "will result in termination," where the terms of letter were not negotiated with union. Martin County Bd. of Cmsnrs. and Martin Co. Public Employees, 116 LA (BNA) 1697, FMCS Case #01/15995 (Smith, 2002).

Out of Title Assignments

     Arbitrator holds that a municipality violated a bargaining agreement when public works employees were not called out to remove a damaged street light and a police officer removed the damaged pole. Overtime pay awarded. Bor. of West View and Utility Wkrs. Union of Amer. L-416, 118 LA (BNA) 143 (Dissen, 2003).

Racial Harassment

     Eighth Circuit affirms a jury verdict of only $1 for a minority firefighter who claimed a racially hostile work environment. Mems v. City of St. Paul, #02-1834, 2003 U.S. App. Lexis 8150 (8th Cir. April 30, 2003). [PDF]

Residency Requirements

     Arbitrator finds that a city did not have just cause to discharge a firefighter who owned a house in the city, but also had a residence outside the city in which his wife and child resided. The city ordinance did not prohibit employees from alternatively occupying more than one residence. City of Warren, Ohio and IAFF L-204, 118 LA (BNA) 129, FMCS Case #02/12588 (Duff, 2003).

Sexual Harassment - In General

     Federal appeal court holds that an employer can be vicariously liable for harassment by a nonsupervisory superior coworker if the harasser has the authority to create a hostile work environment for subordinate coworkers. Mack v. Otis Elevator, #02-7056, 326 F.3d 116, 2003 U.S. App. Lexis 6948, 91 FEP Cases (BNA) 1009 (2nd Cir. 2003). [PDF]

     Seventh Circuit revives a complaint. Although the plaintiff failed to use the employer's complaint procedures in a timely fashion, she made an oral report of harassment only eight days after the last act of harassment and her suit should not have been dismissed. Hardy v. Univ. of Illinois, #02-2454, 2003 U.S. App. Lexis 8679 (7th Cir. 2003). [PDF]

Sexual Harassment - Verdicts, Settlements & Indemnity

     Private employer agrees to pay $10 million to settle harassment complaints of 91 women employed at a suburban Chicago soap facility. EEOC v. The Dial Corp., #99 C 3356 (N.D. Ill. 2003).

Visual Acuity Standards

     An applicant with monocular vision was not a qualified individual under the ADA, as he could not meet defendant's vision standards. Dyke v. O'Neal Steel, #01-2821, 2003 U.S. App. Lexis 8480 (7th Cir. 2003). [PDF]

Whistleblower Requirements and Protection

     Ninth Circuit affirms the criminal contempt conviction of a police practices researcher who violated a court protective order when he gave copies of 79 LAPD files to TV journalists, exposing efforts by officials to shield police officers from domestic violence prosecutions. The defendant's story also aired on the CBS news show, 60 Minutes. The Supreme Court has denied review. Mullally v. City of Los Angeles, #01-55620, 49 Fed. Appx. 190, 2002 U.S. App. Lexis 22535 (Unpub. 9th Cir. 2002); cert. denied, 2003 U.S. Lexis 3025 (2003).

     Federal appeals court rejects a First Amendment and whistleblower suit by a police chief, alleging that he was fired for continuing an investigation of city council members, instead of referring it to an outside agency as requested by the mayor, and for referring to the mayor as Hitler. Tharling v. City of Port Lavaca, 02-20061, 2003 U.S. App. Lexis 9159 (5th Cir. 2003). [PDF]

     Arbitrator holds that management violated the Federal Whistleblowers Protection Act and a Michigan state law when it fired an employee who notified a corruption task force about alleged illegal activity in his department. Reinstatement and back pay ordered. City of Detroit and Individual Grievant, 118 LA (BNA) 135, City Grievance No. 97-025 (Hodgson, 2003).

     Ninth Circuit sustains an award of $1,150,000 in compensatory damages and $1,150,000 in punitive damages against a private sector employer that wrongfully terminated a radiation safety officer that had reported nuclear safety violations. Freund v. Nycomed Amersam, 01-56491/4, 2003 U.S. App. Lexis 7537 (9th Cir. 2003). [PDF]

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     Indictment: U.S. v. James J. Smith (C.D. Cal. 2003), charging an ex FBI agent with passing classified information to a Chinese intelligence agent. [PDF]

     Information: OSHA guidance on SARS-related employer responsibilities and information for workers -- with links to CDC sites.

     Proposal: Plan of the Equal Employment Opportunity Commission for improving access to services for persons with limited English proficiency.

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance

CROSS REFERENCES