Michigan Employment
Relations Commission
Detroit Police Department
Respondent-Public Employer
and
Detroit Police Officers Ass’n
Charging Party-Labor Organization
No. C04 A-001
19 MPER 15
2006 MPER (LRP) Lexis 14
February 1, 2006
Decision and Order
On January 13, 2005, Administrative Law
Judge (ALJ) Roy L. Roulhac issued his Decision and
Recommended Order in the above matter finding that Respondent City of Detroit
(Police Department) violated Section 10(1)(a) of the Public Employment
Relations Act (PERA), 1965 PA 379 as amended, MCL 423.210(1)(a). The ALJ
concluded that Respondent suspended Officer John Bennett, a member of the
bargaining unit represented by Charging Party Detroit Police Officers
Association (DPOA or Union), for engaging in protected concerted activity and
recommended that Respondent be ordered to reinstate Bennett with back pay. The ALJ’s Decision and Recommended Order was served upon the
interested parties in accordance with Section 16 of PERA. On February 7, 2005,
Respondent filed timely exceptions to the ALJ’s
Decision and Recommended Order and a brief in support of the exceptions. After
filing a timely request, Charging Party was granted an extension to file a
response to the exceptions, and its timely brief in support of the ALJ’s Decision and Recommended Order was filed on March 21,
2005.
In its exceptions, Respondent contends that the ALJ erred in finding
Bennett’s operation of the website www.firejerryo.com was protected concerted
activity, arguing that Bennett was acting as a private citizen and that
information on the website does not promote group action by members of the
DPOA. Respondent maintains that the ALJ erred by failing to consider
information that it submitted after the record closed regarding the Union’s
stipulation that the website was not a Union project. Respondent takes
the position that such information negates Charging Party’s argument that
Bennett’s activities were protected under PERA. Respondent also asserts that
the operation of the website is not protected under PERA because statements on
the website detracted from the effective and efficient operation of the Detroit
police department or had the potential to adversely affect the operations of
the department. Upon reviewing the record carefully and thoroughly, we find
Respondent’s exceptions to be without merit and adopt the ALJ’s
recommended order. Factual Summary:
We accept the factual findings of the ALJ
and summarize them here as necessary. The DPOA represents certain police
officers employed by Respondent. Officer Bennett had been employed as a police
officer since 1996 and is a member of the bargaining unit represented by the
DPOA. Around February 2002, Jerry Oliver was appointed as Respondent’s Chief of
Police.
In October 2002, Bennett created and registered a website that he
operates, with his own funds, while off duty. The ALJ found that he created the
website to provide a forum for Detroit police officers to express their
concerns over issues within the police department, and to provide a source of
information for the wider community regarding issues of leadership and
accountability in the City of Detroit.
From late 2002 through August or September
of 2003, the website contained a guest book that permitted visitors to log on
and register their thoughts and opinions. Although individuals who made
comments in the guest-book rarely identified themselves, two police officers
included their names, and other website visitors gave information that led
Bennett to assume that they were also police officers. Additionally, the
website contained various announcements and articles about such matters as wage
comparisons between Detroit police officers and police officers in other
cities, complaints about equipment and staffing in the Detroit police
department, and information about police officer grievances, arbitrations, and
union elections. Another part of the website contained pages that Bennett said
were created to provide comic relief through the use of satire, caricatures,
and fictional characters and included a disclaimer indicating that the
characters mentioned on those pages were fictional. n1
In December 2002, two months after the
website was created, the Detroit Free Press and WXYZ Channel 7 News published
stories about Chief Oliver’s reaction to the site. On December 13, 2002, the Channel 7 News website
featured an article about Bennett’s website, in which a television news
reporter quoted Chief Oliver as commenting that “it is a great site,”
and it’s great entertainment. ... It’s a spoof, I think.” According to this
report, admitted at the hearing without objection, Oliver said:
In reality, I’m
not bothered by it at all. Some people have said to me it’s
libel or slanderous, it’s supposed to be really negative, but to me it’s
encouraging. He who wrestles with me makes me stronger.
In a December 14, 2002 Detroit Free Press
column, which was also admitted without objection, Oliver is quoted as saying “It
is a very well-done site,” and “Clearly the webmaster is a very talented
person, technologically. I wish we had that kind of skill working on the
official website of the police department.”
On July 8, 2003, Oliver suspended Bennett with pay and told Bennett
that the site contained racial slurs that were detrimental to the department
and that if the site were still up the following morning,
Bennett would be suspended without pay. Bennett continued to operate the
site. On September 18, 2003, Bennett was suspended without pay. Discussion and Conclusions of Law:
Although we have not previously dealt with
statements posted on the internet by an off-duty employee from a location
outside of the work place, we have had occasion to examine other forms of
public comment by employees which resulted in discipline. In Township of Redford,
1984 MERC Lab Op 1056, we held that even when speaking to the press about a
union-management dispute violates an otherwise legitimate rule of the employer,
the employer must demonstrate a legitimate and substantial business
justification for applying the rule to restrict the exercise of PERA rights.
Where the concerted activity does not involve disclosure of confidential
information or policy, and it is not shown that application of the rule is
necessary to maintain order or discipline, we have found that discipline for
speaking to the press regarding a union-management dispute violates PERA. Township of Redford.
By way of contrast, we held in Ottawa Co.
Sheriff 1996 MERC Lab Op 221, that when crimes have been committed and an
investigation is underway, a law enforcement agency has a legitimate interest
in preserving confidentiality by requiring that rules regarding the release of
information be strictly followed. In Meridian Twp., 1997 MERC Lab Op 457, we
held that a public statement that was false and had the potential of causing
public alarm was not protected by PERA.
The DPOA’s unfair labor practice charge
alleges that the City violated Section 10(1)(a) of
PERA by directing Bennett to shut down his website and by suspending Bennett
when he failed to do so. The ALJ found that operation of the website was
protected concerted activity because matters addressed on the website included
work-related subjects such as wages, promotions, manpower, and discipline, even
though subjects unrelated to working conditions also appeared. For reasons
stated in the ALJ’s Decision and Recommended Order,
we agree.
In its exceptions, Respondent asserts that Bennett’s conduct was not
sanctioned by the DPOA or any other union and therefore not protected by PERA.
Under Section 9 of PERA public employees have the right to engage in lawful
concerted activities for the purpose of mutual aid and protection. Concerted
activity, which includes activity undertaken by one employee on behalf of
others, is protected by PERA even in the absence of the participation or
authorization of a labor organization. See City of
Detroit Water and Sewerage Dep’t., 1993 MERC Lab Op 157 (no exceptions).
See also NLRB v. Washington Aluminum Co., 370 U.S. 9, 15 (1962), Hugh H. Wilson
Corp. v. NLRB, 414 F.2d 1345, (CA 3, 1969), Clairmont
Resort & Spa, 344 NLRB No. 105 (2005), Cintas
Corp., 344 NLRB No. 118 (2005). Even if the website was also used for purposes that lacked a direct
nexus to wages, hours, and working conditions such ancillary activity did not
deprive Bennett of the protection afforded by PERA, absent a showing that the
operation of the website had an adverse impact on a legitimate employer
interest. City
of Detroit Water and Sewerage Dep’t.
Although Respondent argues that Bennett’s statements have undermined
public confidence in its police department and have had an adverse impact on
its operations, no evidence was offered to support this argument. Similarly,
Respondent maintains that certain statements published by Bennett violated
police department rules and regulations regarding the conduct of police
officers. n2 However, no rules or regulations were
placed in evidence. While Bennett acknowledged that he posted some statements
on the website without making efforts to determine their truth or falsity,
Respondent offered no evidence to show that those statements were false or
adversely affected a legitimate employer interest.
Respondent knew of Bennett’s website months
before it imposed any discipline. In his public comments about the site, Chief
Oliver both praised the technical quality of the site and denied that he was
offended by its commentary. Nothing in his December 2002 public comments about
the website indicated that Oliver considered the site, or any of the statements
made therein, to be in violation of the police department’s rules or
regulations. Oliver did not complain about the website or warn Bennett that his
job was in jeopardy until July 8, 2003, when he suspended Bennett with pay for
operating the website.
Respondent has characterized some statements posted on the website by
Bennett as sexual harassment, racist in nature, or otherwise offensive.
Although we do not condone such comments, no evidence was presented that
Bennett posted these statements while on duty, nor did
Respondent offer any evidence that this activity affected others in the
performance of their duties. In fact, Respondent offered no evidence that any
of its employees were even aware of the allegedly offensive comments on the website.
At the time of Bennett’s suspension, Chief
Oliver gave Bennett only two options: shut down the website or be suspended
without pay. Before it imposed discipline, Respondent did not give Bennett the
opportunity to remove from the website the statements that it found
objectionable. Bennett was suspended simply because he continued to operate the
website.
We hold that Respondent’s demand that Bennett shut down his entire website, and its discipline of Bennett for not doing so, constituted a violation of Bennett’s rights under PERA to engage in protected concerted activity. We will not allow the suppression of PERA protected speech simply because it occurs in conjunction with speech that is not protected by PERA, where there has been no showing of actual harm or adverse impact flowing from that speech.
Order
IT IS HEREBY ORDERED that the Order recommended by the Administrative
Law Judge shall become the Order of the Commission.
Notes:
1. On
October 22, 2003, Bennett was ordered to attend an interview conducted pursuant
to Garrity v. New Jersey, 385 U.S. 493 (1967), during which he was compelled,
under the threat of discharge, to answer questions concerning the website’s
content. He acknowledged posting articles on the website that criticized the
Police Department’s administration or made unflattering comments about the
personal lives of members of the administration without first determining
whether there was a factual basis for the articles. Bennett claimed that many
of the reports he included on his website came to him through anonymous e-mails
and contained information that he did not attempt to verify. He also admitted
publishing an article about “Freedom days” which he described as “an
opportunity for officers, supporters and citizens to share in our
dissatisfaction with department leadership by taking the day off from work.”
During the interview, which occurred after his suspension, Bennett acknowledged
posting items on the website which included:
- Reporting that the strike force trained
to be the first responders in case of a terrorist attack had been disbanded,
without knowing whether such information was truthful;
- Reporting that the police department
was no more prepared for a terrorist attack than it had been on September 10,
2001, eleven months earlier;
- Questioning whether Oliver’s children
attended an unnamed pre-school in Grosse Pointe and reporting that Oliver
worked out at a particular gym from 6:00 to 8:00 p.m. daily;
- Describing a female police department
employee as a “concubine prospect” and questioning whether Oliver took his
family and his “concubine” on trips at taxpayers’ expense;
- Questioning whether a newly hired
assistant chief is a “card-carrying Klansman” and questioning his
qualifications for the position;
- Alleging, without identifying him by
name, that a police commander had been stopped for drunk driving while in a
police department vehicle in Northville.
2. In
an October 22 2003 interview of Bennett conducted by Respondent pursuant to
Garrity v. New Jersey, 385 U.S. 493 (1967), and in disciplinary charges filed
against Bennett in March 2004, Respondent identified certain statements on the
website with which it took issue.
Decision and Recommended Order
of Administrative
Law Judge
This case was heard in Detroit, Michigan,
on May 7, 2004, by Administrative Law Judge Roy L. Roulhac
for the Michigan Employment Relations Commission (MERC) pursuant to Sections 10
and 16 of the Public Employment Relations Act (PERA), 1965 PA 379, as amended. MCL 423.212 and 423.213. Based on the
record, including post-hearing briefs filed by July 8, 2004. I make the
following findings of facts and conclusions of law. The Unfair Labor Practice Charge:
On January 7, 2004, the Detroit Police
Officers Association filed an unfair labor practice charge alleging that the
City of Detroit (Police Department) violated Section 10(1)(a)
of PERA. The charge reads:
Since on or about July 8, 2003, and
continuing to date, the City of Detroit, acting through its agent Police Chief
Jerry Oliver, has violated the Act by: (1) Directing that the “firejerryo” website be shut down; and (2) Suspending Police
Officer John Bennett for creating and operating the website. Evidentiary Issue:
Charging Party objected to Respondent’s
offer of the transcript of Officer Bennett’s October 22, 2003 interview that
Respondent conducted pursuant to Garrity v. New Jersey, 385
U.S. 493 (1967). I received the transcript, but reserved admitting it
subject to the parties’ written arguments. Except for arguing that the
compelled nature of Officer Bennett’s interrogation is at odds with policies
underlying Garrity, Charging Party offered no support for its contention that
the transcript is inadmissible. n1 Findings of Fact:
Charging Party, Detroit Police Officers
Association (DPOA), represents certain police officers employed by Respondent
City of Detroit. Officer John Bennett had been employed as a police officer
since 1996 and is a member of the DPOA. On or about February 2002, Jerry Oliver
was appointed Chief of Police.
In October 2002, Officer Bennett, a Detroit
Police officer and a member of the DPOA since 1996, created and registered
www.firejerryo.com, a website that he operates with his own funds while off
duty. He testified that he created the site to provide “a forum for police
officers on [sic] the Police Department to express their concerns with some of
the issues we had, we have on the Police Department, and also provide a source
of information for the wider community, the citizens, of which I am one, to
take a look at issues of leadership and accountability in the City of Detroit.”
In describing his motivation for creating the site, Officer Bennett explained
during the Garrity interrogation that
... I am a
lifelong Detroiter, born and raised, and I see a great lack of governmental
leadership in our City, from the Mayor’s office all the way down. I saw what I
thought were inconsistencies in what some of the things our present Chief acted
on and the latest thing is another example, and I felt it was important as a
citizen, not only as a citizen, but a police officer, to provide people with
information so they can make informed decisions about what was taking place in
our City. As a taxpayer, I sat in my home and I began a website. It was my
intent that any citizen of the City of Detroit would view the website, which
now numbers at 154,000 hits. So that would seem to indicate that many people
across the country have viewed the website.
For a time, the website consisted of three
types of pages. Initially, it contained a guest book that permitted visitors to
log on and print their thoughts and opinions on a variety of subjects. Some
time after it was created, the guest book contained a disclaimer that advised
visitors that certain things were unacceptable and would be deleted.
Individuals who made comments in the guest book rarely identified themselves.
Police officers Reggie Crawford and David Malhalab
included their names. Some visitors, who Officer Bennett assumed were police
officers, identified the precinct where they worked, made comments about events
occurring at their precincts, criticized the DPOA and its leadership, and
discussed the 2003 union election. The guest book was removed in August or September
2003.
The website also contains various
announcements and articles about such issues as a comparison of wages paid to
Detroit police officers to wages earned by officers in other cities; complaints
about an insufficient number of vehicles available during midnight shifts;
criticism of the growth in the executive protection units of the Mayor and the
Police Chief at a time when there was an insufficient number of officers on the
street; the increase in the number of officers suspended without pay;
information about grievances and arbitrations involving suspended officers;
equipment failures; the elimination of the investigator’s rank and the
investigator’s promotion to sergeant; the status of pending grievances;
fundraisers for officers accused of criminal activity; and information on union
elections. According to Officer Bennett, 95% of the articles on the site are
informational and discussed union and/or work-related issues.
The third part of the website contains
pages that Officer Bennett described as “edgy,” which he created to provide
comic relief through the use of satire, caricatures and fictional characters.
According to Officer Bennett, information for articles on these pages is based
on his personal knowledge and from e-mail sent to him anonymously. Among other
things, articles on this portion of the site include complaints, criticisms,
parodies about perceived favoritism in the chief’s hiring practices, and
questions about the qualifications and pay of executives hired. At some point after
this section was created, Officer Bennett added a disclaimer, which stated: “Content
on this page is not specific to any individual. Characters are fictional.”
In December 2002, two months after the
website was created, the Detroit free Press and Channel 7 News published
stories about Chief Oliver’s reaction to the site. The Free Press quoted him as
saying, n2
“It is a very well-done site. Clearly, the webmaster is a very talented person, technologically. I wish that we had that kind of skill working on the official Website of the police department. We have no investigations going on. We see it as a right of people to express themselves, even though I think it is a small group of disgruntled employees…
Channel
7 News quoted Chief Officer’s reaction as follows:
I appreciate
quality. This is a quality site. Actually, I think it is a great site. Its [sic] technologically a very advanced site, and its
[sic] great entertainment. I have gone there several times and taken a look at
the information that’s on there. It’s a spoof, I think. In reality, I’m not
bothered by it at all. Some people have said to me it’s
libel or slanderous, it’s supposed to be really negative, but to me it’s
encouraging. He who wrestles with me makes me stronger. It’s done so well that
I wish we could capture some of those skills to help us with the website we
have within the department so that we can really move our website to that of
[sic] level of professionalism.”
Seven months later, on July 8, 2003, Chief
Oliver appeared at Officer Bennett’s midnight shift roll call and suspended
Officer Bennett with pay. Chief Oliver told Bennett that the site contained
racial slurs that were detrimental to the department and that if the site were
still up in the morning, he would be suspended without
pay. Officer Bennett continued to operate the site. In a September 4, 2003
memorandum to the Board of Police Commissioners, Chief Oliver asked the Board
to concur in his suspension of Officer Bennett without pay. Chief Oliver alleged
that since November 24, 2002, numerous pages on the website violated several
provisions of the Police Department’s Code of Conduct. n3
The next month, on October 22, 2003,
Officer Bennett was ordered to attend a Garrity interview where he was compelled,
under the threat of discharge, to answer questions concerning the website’s
content. The interrogation focused on Officer Bennett’s motivation for creating
the website and his familiarity with Department rules regarding the
confidentiality of department information, sexual harassment and
discrimination, and courtesy to department members, among other things. Officer
Bennett was also questioned about the identity of fictional characters in some
of the articles, the source of the information, why the articles were
published, and whether they were designed to harass the chief or members of his
staff.
In March 2004, Officer Bennett was formally
charged with six counts of conduct unbecoming an officer and one count of
neglect of duty. Each charge relates to pages on the website that made use of
parody and satire that Chief Oliver described as spoofs. n4
Conclusions of Law
Section 10(1)(a)
of PERA prohibits an employer from interfering with, restraining, or coercing
public employees in the exercise of their rights guaranteed by Section 9. n5
The test of whether Section 10(1)(a), or its identical provision in the
National Labor Relations Act (NLRA), 29 U.S.C § 150, et al., has been violated
is whether the employer engaged in conduct, which it may reasonably be said,
tends to interfere with the free exercise of employee rights under the
Act. NLRB v. Illinois Tool Works, 153
F.2d 811, 814 (7th Cir. 1946), St. Clair Co. Intermediate Sch. Dist., 1999 MERC
Lab Op 38, 45-46. Once the activity is found to be concerted, an 8(a)(1)
violation will be found if, in addition, the employer knew of the concerted
nature of the employee’s activity, the concerted activity was protected by the
Act, and the adverse employment action at issue was motivated by the employee’s
protected concerted activity. Meyers Industries (Meyers I), 268 NLRB 493, 497
(1984), remanded sub no., Prill v. NLRB, 755 NLRB 941
(DC Cir. 1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1982),
aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (DC Cir.
1987). Union animus is not a necessary element for a violation of Section 10(1)(a). City of Detroit Water & Sewerage
Dep’t., 1993 MERC Lab Op 157, 167.
Although the Commission has never addressed
the use of the Internet by employees to engage in concerted activity, the
matter was addressed in Frontier Telephone of Rochester, Inc., 2004 WL 1181275,
(May 24, 2004). There, an NLRB administrative law judge found that an employee’s
use of the employer’s internal electronic message board to discuss workplace
conditions and unionization, with the employer’s unrestricted authorization,
was protected concerted activity, as was the employee’s act of forwarding the
message board’s content to a Yahoo Group website that he operated. In
commenting on the Internet’s importance in today’s workplace, he observed:
It bears repeating that in the modern age
of telecommunications, the old forms of employee interchange and exchange -- breakroom [sic] meetings, casual meetings on smoke breaks,
bulletin boards -- may be going the way of buckboards and buggy ships. Today,
it is the Internet, its mailing lists, and chat rooms that are replacing the
usual forms of employee get-togethers. Employees now may simply sit at their computers
and screens and “assemble” to discuss matters of consequence about their jobs
and unions.
See
also Timekeeping Systems, Inc., 323 NLRB 244 (1997).
Respondent first contends that it suspended
Officer Bennett because of concerns about web pages that he controlled and not
because of entries in the guest book, which he did not control. The record does
not support this assertion. It shows that when Chief Oliver suspended Officer
Bennett on July 8, 2003, he made no distinction between entries in the guest
book or other pages on the website. He only told Officer Bennett that the
website contained racial slurs that were detrimental to the department and that
if it were not shut down by morning, he would be
suspended without pay.
Respondent also contends that Officer
Bennett was not engaged in concerted activity because he never denied that he
was the owner/operator of the website and because he maintained during the
Garrity interview that he was acting as a private citizen and taxpayer, and not
as a Detroit police officer. Respondent mischaracterizes the evidence. Officer
Bennett explained during the Garrity interrogation that he “felt it was
important as a citizen, not only as a citizen, but a police officer, to provide
people with information so they can make informed decisions about what was
taking place in our City. As a taxpayer, I sat in my home and I began a
website.” Further, Officer Bennett testified during the hearing that he created
the site to provide “a forum for police officers on [sic] the Police Department
to express their concerns with some of the issues we had, we have on the Police
Department.”
Respondent cites Oakland Comm. College,
1990 MERC Lab Op 931, for the view that Officer Bennett was not engaged in
concerted activity because he never discussed the website with the DPOA or its
members, and the DPOA did not provide any equipment, supplies or money to
operate the site. In Oakland Comm. College, 1990 MERC Lab Op 931, the
Commission found that an employee who complained about nepotism during a board
of trustees meeting was not involved in concerted activity because his
complaint was not a part of any concerted activity. He was not acting as a
union representative and had not collaborated or consulted with the designated
representative who had spoken at the meeting on the same subject. The facts in
Oakland Comm. College are unlike those presented here. It does not stand for
the view that an employee needs a union’s involvement or approval to engage in
concerted activity. n6
Respondent also argues that Officer Bennett
was not engaged in concerted activity because during his Garrity interview and
his appearance before the Board of Police Commissioners, neither Officer
Bennett, nor his attorney argued that he was engaged in concerted activity.
First, there is nothing on the record about Officer Bennett’s appearance before
the Board of Commissioners. Moreover, a determination of whether an employee is
engaged in concerted activity is not measured by whether the issue was raised in
another forum, but by the employee’s conduct.
I find ample evidence in the record to
conclude that Officer Bennett’s operation of the website was concerted
activity. In addition to satirical articles about Chief Oliver and members of
his staff to which Respondent objects, the website contains information about
workplace conditions as well as information about union related activities.
Until August or September 2003 the site also included a guest book that allowed
visitors to log on and express their concerns about their working conditions
and their union. The website was created to provide a forum for police officers
to express their concerns about workplace issues and to provide a source of
information to the wider community. Although most visitors did not identify
themselves, the evidence shows that at least two officers listed their names
and others made comments and provided information that made it apparent that
they were employees.
I also find that Respondent knew of the
concerted nature of Officer Bennett’s operation of the website. Respondent not
only knew that the website contained a guest book that allowed officers to log
in and share their opinions, but Chief Oliver is quoted as saying that he
visited the site and thought that it was the work of a small group of
disgruntled employees. The record also supports a conclusion that Respondent’s
suspension of Officer Bennett was motivated by his concerted activity. When
Officer Bennett was suspended on July 8, 2003, he was specifically told that if
the website was still operating the next morning he would be suspended without
pay.
The final issue to be addressed is whether
certain articles on the website are of such an egregious nature, as Respondent
contends, that they are not protected by the First Amendment. It is well
settled that not all speech by an employee concerning working conditions is
protected AFSCME Michigan Council 25, Local 574-A v. City of Troy, 185 Mich.
App. 739, 744-748 (1990), rev’g, 1989 MERC Lab Op
291. The Commission has held that employers may restrain employees’ speech that
detracts from the effective and efficient operation of its business. In such
cases, the employer must show a legitimate and substantial business
justification to restrict the exercise of PERA rights. Ottawa Co. Sheriff, 1996
MERC Lab Op 221. The Commission’s inquiry in Township of Redford, 1984 MERC Lab
Op 1056, focused on whether a police officer’s concerted activity of making
statements to the press invoked the disclosure of confidential information or
policy and whether the employer demonstrated that the application of its rules
to the conduct involved was necessary for the maintenance of order and
discipline in the department. The record in this case is devoid of any evidence
that addresses the principles set forth in these cases. Respondent did not call
any witnesses nor present any evidence to demonstrate that Officer Bennett’s
operation of the website was so egregious that it lost the protection of
Section 9. Absent such evidence, I find that Respondent violated Section 10(1)(a) of PERA by suspending Officer Bennett for engaging in
protected concerted activity. I, therefore, recommend that the Commission issue
the order set forth below: Recommended Order
It is ordered that the City of Detroit (Police Department), its
officers, agents, representatives, and successors shall:
1. Cease and desist from interfering with,
restraining or coercing employees in the exercise of their rights guaranteed by
Section 9 of PERA, including suspending police officers with or without pay for
engaging in concerted activities by their operation of a website to discuss wages, hours,
terms and conditions of employment and other matters of mutual concern to
employees.
2. Restore Officer John Bennett to his previous assignment and make him
whole, with interest at the statutory rate, for any losses he suffered because
of his suspension.
3. Post copies of the attached Notice to
Employees in conspicuous places on its premises, including all locations where
Notices to Employees are customarily posted, for thirty consecutive days. The
notice shall not be altered, defaced or covered with any other material.
Notes:
1. In
Garrity, police officers being investigated by their police department and the
State of New Jersey for alleged criminal conduct were given the option of
submitting to an incriminating interview or being discharged. Subsequently the
prosecution in the criminal case used the officers’ compelled testimony to
obtain convictions. The Supreme Court reversed, holding that the confessions
were coerced and that the Fourteenth Amendment to the U.S. Constitution
prohibited their use. In Lingler v. Fechko, 312 F.3d 237, 239-240 (CA 6 2002) the U.S. Court of
Appeals for the Sixth Circuit held that the Fifth Amendment to the U.S.
Constitution does not prohibit the use of Garrity interviews in other than
criminal case proceedings. See also
Wiley v. Mayor of Baltimore, 48 F.3d 773 (4th Cir. 1995), cert. denied, 516
U.S. 824, 116 S. Ct. 89 133 L. Ed. 2d 45 (1995).
2. At
one time the site included a bulldog urinating on a picture of Chief Oliver. He
told the Free Press that he did not take kindly to the image which had been
removed, and that a few personal attacks and lies about members of his staff
offended him.
3.
Specifically, Bennett allegedly (1) created a hostile work environment by
communicating and publishing racial and sexual statements; (2) advocated
illegal employment action by aiding, abetting or suggesting the abstinence in
whole or in part from the lawful and proper performance of the duties of
employment, i.e., blue flu/work stoppage; (3) released confidential information
by communicating or giving police information detrimental to the department
concerning the Department’s business; (4) made statements impugning the
character of the Chief of Police and Department members; and (5) engaged in the
unauthorized solicitation of funds.
4.
For example, Officer Bennett was charged with sexual harassment by publishing
the following statements: ‘Hey Little Evans, since when do you have time to
gossip about what inspector has kids by what former Chief? Tell me about your
martial bliss (sic). Didn’t you follow your boyfriend here?” “With the loot we’re
paying the morale booster we all should get a turn at having a morale boosted
like the Juice does. Why is the Juice’s shorty
spending so much time at the Motor City Casino? Maybe the Juice is spending too
much time with his new shorty, the morale booster,
which would explain the kind of morale boosting the morale booster is
performing.”
5.
Section 9 of PERA guarantees employees the right to self-organization, to form,
join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
6. On
January 10, 2005, long after the record was closed, Respondent’s counsel inappropriately
sent me a copy of the December 15, 2004 arbitration opinion and award issued by
arbitrator Ellen J. Alexander concerning a grievance filed by Charging Party.
Respondent’s alleged purpose was to direct my attention to footnote 6 on page 5
where the union stipulated that the website was not a union project. This
document was not considered in my decision in this matter.