AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
Reductions
in Force
Monthly Law
Journal Article: Public
Sector Layoffs, Part One, 2009 (6) AELE Mo. L. J. 201.
Monthly Law Journal Article: Public
Sector Layoffs, Part Two, 2009 (7) AELE Mo. L. J. 201
A police dispatcher was laid
off by a town. A collective bargaining agreement gave him a right to be
recalled for 12 months, but he was not recalled. A federal appeals court
found that his procedural due process claim, that he had been deprived
of his constitutionally protected right to be recalled, was viable. The
bargaining agreement vested recall rights in individuals laid off and provided
the employer with no discretion on rehiring qualified individuals with
the required seniority. The claim, which was uncontested, that he received
no notice before or after he was deprived of a protected property interest
in employment was sufficient to assert a procedural due process claim.
Neither a state law breach of contract lawsuit nor the available grievance
procedures were adequate to fully address the alleged injury. Clukey v.
Town of Camden, #12-1555, 2013 U.S. App. Lexis 1018 (1st Cir.).
An Illinois
state labor relations board's decision that a consolidation of training
districts for probationary police officers was not a mandatory subject
for collective bargaining was upheld by an intermediate state appeals court.
The city's failure to bargain over the issue was not an unfair labor practice.
The city had an inherent right to adopt the most efficient method of training
new police recruits. Any benefit that would come from bargaining over the
question was outweighed by the possible burden it would place on the city's
managerial authority. Fraternal Order of Police v. Illinois Labor Relations
Board, #1-10-3215, 2011 Ill. App. Lexis 1196; 2011 IL App (1st) 103215.
A newly elected mayor found that the city's
employees had swollen in number during the administration of the previous
mayor, a member of a different political party. Because the city now had
a $7.2 million annual deficit, with 82% of its budget spent on salary and
benefits, he made personnel cuts. In a lawsuit by 61 terminated employees,
he was accused of due process violations and political discrimination.
An appeals court ruled that these claims failed because the personnel reductions
were carried out under a validly enacted ordinance as a bona fide reduction
in force for legitimate financial reasons. The selection of those who were
terminated was not based on their political affiliations. As for the due
process claim, pre-termination hearings "are not required by due process
where a bona fide government reorganization plan bases dismissals on factors
unrelated to personal performance." Rodriguez-Sanchez v. Municipality
of Santa Isabel, #09-2635, 658 F.3d 125 (1st Cir. 2011).
While
the adoption by California of a three-day-per-month furlough program for
state employees reduced the pay of members of the California Correctional
Peace Officers Association, this was within the authority of the state
legislature in revising the state budget, and did not violate state labor
or government codes or the state's minimum wage law. A trial court award
of back pay for the officers was therefore reversed. Brown v. Superior
Court, #A127292, 2011 Cal. App. Lexis 1259 (1st Dist.).
After the L.A. City Council approved
a 26-day annual work furlough as an austerity measure, a union demanded
arbitration. A three-judge appellate panel holds that "any agreement
to arbitrate the issue of furloughs would constitute an improper delegation
of discretionary policymaking power vested in the City Council." City
of L.A. v. Superior Court (Engineers), #B228732, 2011 Cal. App. Lexis 354.
After the L.A. City council approved a 26-day
annual work furlough as an austerity measure, a union demanded arbitration.
A three-judge appellate panel holds that "any agreement to arbitrate
the issue of furloughs would constitute an improper delegation of discretionary
policymaking power vested in the City Council City of L.A. v. Superior
Court (Engineers) #B228732, 2011 Cal. App. Lexis 354.
A California city is not required to bargain
with the firefighters' union before deciding that firefighters must be
laid off as a cost-saving measure. "A public employer must, however,
give its employees an opportunity to bargain over the implementation of
the decision, including the number of employees to be laid off, and the
timing of the layoffs, as well as the effects of the layoffs on the workload
and safety of the remaining employees." IAFF L-188 v. PERB (City of
Richmond), #S172377, 2011 Cal. Lexis 516. After
a bargaining agreement expires a town may give notice that it no longer
intends to be bound by a minimum workforce requirement. The town has a
duty to bargain over the issue, but a reduction of the workforce is "arbitrable
only insofar as the decision to reduce the workforce affects hours, wages,
and other terms and conditions of employment of the remaining employees."
Town of North Providence v. Drezek, #PC-09-5835, 2010 R.I. Super. Lexis
98, 188 LRRM (BNA) 3118.
Arbitrator rejects a grievance interpreting
a clause in a CBA that provides that other city employees must be laid
off before police officers. City of Wellston (Ohio) and FOP Ohio, FMCS
#030411-08835-6 (Byrne, 2010).
In a case involving bumping rights due to
employment layoffs, an Ohio appellate court concludes that provisions of
a collective bargaining agreement prevail over conflicting laws, rules
and regulations of a chartered municipality. Zupp v. Civil Serv. Cmsn.
for City of Columbus, #09AP-895, 2010-Ohio-2614, 2010 Ohio App. Lexis 2157
(10th Dist.).
Five-judge appellate panel concludes that
a no-layoff clause in a bargaining agreement is not subject to any prohibition
against arbitration. A New York municipal fire dept. did not violate public
policy by voluntarily including a reasonable job security provision in
a bargaining agreement that lasted only three years. Johnson City Prof.
Firefighters L-921 and Vil. of Johnson City, #507278, 2010 N.Y. App. Div.
Lexis 2825 (3rd Dept.).
Federal appeals court overturns a trial court
holding that the "Contract Clause" in the U.S. Constitution prevented
management from posing a furlough of 80 hours per year on all county employees.
There are three issues when deciding on the enforceability of an arbitration
clause: (1) whether there has been an impairment of the contract or bargaining
agreement; (2) whether that impairment was substantial; and (3) if so,
whether the impairment was nonetheless a legitimate exercise of the police
power. FOP L-89 v. Prince George's County, #09-2187, 2010 U.S. App. Lexis
12871 (4th Cir.).].
Federal judge grants a preliminary injunction
against planned layoffs, wage reductions and a benefits freeze for thousands
of New York state workers. The legislature violated Art. 1 §10 of
the U.S. Constitution, the "Obligation of Contracts Clause."
Donohue v. Patterson, #1:10-CV-00543, PACER Doc. 29; prior T.R.O. at 2010
U.S. Dist. Lexis 50733 (N.D.N.Y. 2010).
N.Y. appellate court enforces a no-layoffs
clause in a firefighters� contract. Village of Johnson City and Firefighters
Assn. L-921, #507278, 2010 NY Slip Op 2890, 2010 N.Y. App. Div. Lexis 2825
(3rd Dept.).
A mandatory reduction in the total hours
worked by public employees is the same whether achieved by a reduction
in the number of hours worked imposed on all employees or a layoff of only
some employees. California Attorneys v. Schwarzenegger, #A125292, 2008
Cal. App. Lexis 355 (1st Dist.).
Superior court overturns Gov. Schwarzenegger's
two-day per month furlough for state workers, as applied to correctional
officers. As implemented, the executive order diminished their compensation
without a corresponding decrease in work periods. Calif. Corr. POA v. Schwarzenegger,
Alameda Co. Super. Ct. #09-441544.
Federal court overturns an employer-imposed furlough
plan that reduced the work hours of all covered employees by 80 in FY-2009,
reducing the annual salaries of those employees by 3.85%. �The Framers
of the Constitution drafted the Contract Clause (U.S. Const. art. I, §10,
cl. 1.) based on the concern that state governments might enact legislation
to alter, relax or unilaterally modify contractual obligations.� FOP v.
Prince George�s Co., #AW-08-2455, 2009 U.S. Dist. Lexis 72810 (D.Md.).
California
appellate court holds that a municipality's decision to lay off firefighters
is not a mandatory subject of bargaining, although the effects of a layoff
decision, such as workload and safety concerns, are negotiable. IAFF L-188
v. PERB (Richmond), #A114959, 2009 Cal. App. Lexis 373 (1st Dist.).
Ninth Circuit rejects a union claim that employee layoffs violated the
National Labor Management Relations Act. A county is not an employer; the
NLRA excludes as states and political subdivisions. Int. Union of Oper.
Engineers v. Co. of Plumas, #07-16001, 2009 U.S. App. Lexis 5822 (9th Cir.).
Bankruptcy court rules that a city has the
authority to void its existing union contracts in its effort to reorganize.
Public workers lack the protections of union workers for private companies.
In re City of Vallejo, Calif., #08-26813, Memorandum decision (PACER Doc.
473); Findings of Fact & Conclusions of Law (E.D. Cal. 2009).
Arbitrator finds that a city violated the
bargaining agreement when it hired a new part-time police officer rather
than recall an officer who had been laid off three years earlier, even
though the CBA provided that an employee?s right to recall ends 12 months
after he has been laid off. City of Frankfort and P.O.A. of Michigan, 124
LA (BNA) 381 (Mackraz, 2007).
A police officer that was furloughed for
economic reasons is not entitled to a Loudermill type hearing because his
removal was non disciplinary. Lohman v. Duryea Borough, #3:05-CV-1423,
2007 U.S. Dist. Lexis 87720 (M.D. Pa.).
Non permanent federal employees, that are not
protected by civil service laws, are not entitled to the protections afforded
permanent employees in a workforce reduction under 38 U.S. Code §7405.
Bouchard v. Dept. of Veterans Affairs, Docket #AT-3443-06-0636-I-1, 2007
MSPB 63(2007).
Federal court holds that if a Pennsylvania
Borough dissolved its police force in bad faith, affected officers would
be entitled to a termination hearing. Baker v. Bor. of Port Royal, #1:CV-06-0932,
2006 U.S. Dist. Lexis 77198 (M.D. Pa. 2006). {N/R}
The Illinois Labor Relations Board?s General
Counsel agrees that a city can reduce the number of fire captains after
a retirement, but must bargain with the firefighters? union over the impact
of the decision. Effingham Fire Fighters Assn., L-3084 and City of Effingham,
#S-CA-03-144, 21 PERI 11, 2005 PERI (LRP) Lexis 8 (2005). (N/R}
Federal appeals court holds that public employees
who are furloughed for economic reasons are entitled to a Loudermill hearing,
if they are selected for reasons of job performance rather than seniority.
Whalen v. Mass. Trial Court, #04-1976, 397 F.3d 19, 2005 U.S. App. Lexis
1829 (1st Cir. 2005). [2005 FP Apr.]
Although some courts have found that pre-termination
hearings are unnecessary in the case of financial layoffs, they have underscored
the importance of adequate post-termination reviews for furloughed employees.
Finding that the county?s post-termination procedures lacked minimal standards
of due process, the appellate court affirmed a national origin discrimination
claim and remanded the case for the assessment of damages. Lalvani v. Cook
County, #03-1922, 396 F.3d 911, 2005 U.S. App. Lexis 1716 (7th Cir. 2005).
{N/R}
Pennsylvania court blocks elimination of
eight fire companies in Philadelphia. Management must bargain with the
union on fiscal cuts that affect firefighter and public safety. Philadelphia
Fire Fighters Union, L-22, v. City of Philadelphia, 2004 No.3755 (Cm.Pls.
2004). [2004 FP Dec]
Court holds that only seniority within the
affected department is relevant for reductions in force, unless layoffs
are citywide. Town of East Hartford v. CSEA-MEU L-760 SEIU, CV#040830663S,
2004 Conn. Super. Lexis 1274 (Unpub. 2004). {N/R}
Arbitrator holds that a city did not violate
the bargaining agreement which stated that a ?normal? work week was 40
hours, when it reduced the grievant?s hours to 30. Use of term ?normal?
does not prevent a city from reducing hours because of budgetary shortfalls.
City of Coquille and Teamsters L-206, 119 LA (BNA) 762 (Hoh, 2004). {N/R}
Federal court refuses to enjoin the Dept.
of Homeland Security for reducing its force of airport screeners. Furloughed
former screeners lacked standing to seek an injunction because they had
already been laid off and could not face additional harm from a further
force reduction. AFGE, TSA L-1 v. Loy, #03-1719 & 03-0043, 281 F.Supp.2d
59, 2003 U.S. Dist. Lexis 15750, 173 LRRM (BNA) 2358; AFGE, TSA L-1 v.
Loy, #03-0043, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003). {N/R}
Arbitrator reinstates all fulltime dispatchers,
where the entire unit was furloughed for fiscal reasons, but only two police
officers and two firefighters were laid off. Because the officers assigned
to replace the dispatchers earned more, there was no financial justification
for singling out the dispatchers for furlough. City of Fostoria, Ohio and
Ohio PBA Dispatchers Unit, 117 LA (BNA) 1093, AAA Case #53-L-390-001712
(Lalka, 2002). [2003 FP Mar]
Arbitrator orders a sheriff to rehire
three deputies who were laid-off for financial reasons. The county commissioners
failed to justify a budget cut, and sheriff was using special deputies
to replace the work performed by laid off bargaining unit members. Jackson
Co. Sheriff and FOP, FMCS Case #01/16348, 116 LA (BNA) 1753 (Kindig, 2002).
[2002 FP Sep]
Arbitrator rules that a county violated the
bargaining agreement, by assigning bargaining-unit work to a non-unit employee
in order to lay off two unit employees, and redistributing those job duties
to non-unit employees. Lawrence County and C-8, AFSCME L-3319, FMCS #00/14501
& 00/14499, 115 LA (BNA) 789 (Imundo, 2001). {N/R}
U.S. Supreme Court declines to hear the appeal
of a state employee who was furloughed, supposedly for funding reasons,
when the true reason was lack of work. Lower court said that the law does
not require that an employee be given reason for his furlough if it is
for a valid reason. McAndrew v. Penn. Civil Serv. Cmsn., #3118 C.D. 1998,
736 A.2d 26, 1999 Pa. Commw. Lexis 695; cert. den. #00-1521, 69 L.W. 3754
(2001). {N/R}
California appeals court holds that a predeprivation
hearing is not required for a demotion or termination for economic reasons.
Duncan v. Department of Personnel Administration), #B129036, 77 Cal.App.4th
1166, 2000 Cal. App. Lexis 60, 92 Cal.Rptr.2d 257, 15 IER Cases (BNA) 1753.
[2000 FP 69]
California city department head wins suit
against the city council for cutting the budget below that which is necessary
to perform the legal mandates of the agency. Scott v. Common Council, City
of San Bernardino, 52 Cal.Rptr.2d 161, 44 Cal.App.4th 684, 1996 Cal.App.
Lexis 339. [1996 FP 125]
Bargaining agreement requiring layoffs of
deputy sheriffs by seniority was unenforceable, where state law provides
that deputies serve at the pleasure of the sheriff, and department manual
permits layoffs by performance appraisals. Webb Co. and C.L.E.A.T., 103
LA (BNA) 446 (McKee, 1994). {N/R}
City could not downsize a fire station and
replace its firefighters and truck with an engine company from another
department under a mutual aid agreement. Reno, City of and I.A.F.F. Local
731, 101 LA (BNA) 126 (1993). [1994 FP 116]
Statute authorizing layoffs of public employees
by financially distressed cities superseded their collective bargaining
agreements. Wilkinsburg POA v. Cmwlth. of Penn., 636 A.2d 134 (Pa. 1993).
[1995 FP 27]
Police chief, acting on mayor?s instruction,
could lay off an officer for fiscal reasons, without approval of the civil
service authority. Hahn v. City of Harvard, 605 N.E.2d 95 (Ill.App. 1992).
[1993 FP 93]
County could lawfully abolish its police
force by withdrawing funding. Fiscal Court v. Taylor Co. Police, 805 S.W.2d
113 (Ky. 1991). See also: O?Mahony v. Chicago Transit Auth., 779 F.2d 54
[unpubl.], cert. den. 106 S.Ct. 1516 (1986); Brownstone Twp. v. Co. of
Wayne, 242 N.W.2d 538 (Mich.App. 1976); Christiansen v. Casey, 428 N.Y.S.2d
317 (A.D. 1980). [1992 FP 60]
New York court refuses to intervene in the
closing of a fire station, notwithstanding a judicial concern for the inadequate
protection of the residents. Richmond Hill Block Assn. v. Dinkins, 567
N.Y.S.2d 584 (Sup. 1991). [1992 FP 61]
California appellate court sets aside an
agency?s decision to reduce to half-time, a classified position in the
employ of that agency?s civil service commission; only the commission itself
has that power. Personnel Cmsn. v. Bd. of Educ., 223 Cal.App.3d 1463, 273
Cal.Rptr. 288 (1990); 266 Cal.Rptr. 46 vacated.
Appellate court upholds use of supervisor
ratings to determine order of layoffs necessitated by financial considerations.
Fact that some supervisors were not themselves proficient at the skills
they rated was not determinative. In re Civil Serv. Cmsn. Layoff Investigation
(Collongues), 546 So.2d 523 (La.App. 1989).
City council is immune from lawsuit by a
lieutenant who was demoted for ?budgetary reasons? and who alleged the
real reason for this demotion was his criticism of departmental racism.
Herbst v. Daukas, 701 F.Supp. 964 (D. Conn. 1988).
Reinstated fire and police personnel, laid
off during fiscal crisis, do not receive seniority credit for lay-off periods.
McKechnie v. Ortiz, 518 N.Y.S.2d 134, 132 A.D.2d 472 (1987).
Union had no duty to ?forcefully? contest
layoffs; no breach of ?duty of fair representation? found. NAACP v. Detroit
Pol. Ofcrs. Assn., 821 F.2d 328 (6th Cir. 1987).
Dept. could demote certain supervisors for
fiscal reasons, on the basis of a competitive exam and performance ratings
(instead of seniority). Young v. Williamson, 497 N.E.2d 612 (Ind.App. 1986).
Appellate court upholds demotions and layoffs
of 181 New Orleans firefighters. Pretermination and predemotion hearings
not required. City could integrate service ratings with seniority. New
Orleans Assn. of Firefighters, L-632 v. Civil Serv. Cmsn., 495 So.2d 958
(La. App. 1986).
City required to bargain over termination
of firefighters and contracting with private fire suppression company.
Int. Assn. of Firefighters L-1445 v. City of Kelso, 2 Labor Lawyer (ABA)
588, 23 G.E.R.R. (BNA) 222.
Transportation authority could abolish its
security force; no due process violations. O?Mahony v. Chicago Transit
Auth., (7th Cir., U.S. Ct. App. #85-1609 unpub.), cert. den., 106 S.Ct.
1516 (1986).
City could abolish desk officer position
and replace it with a civilian clerk. Ryman v. Reichert, 604 F.Supp. 467
(S.D. Ohio 1985).
Financial constraints justify lay-offs, but
not demotions; Michigan city could not reduce lieutenant to firefighter.
Greenslait v. City of Taylor, 358 N.W.2d 30 (Mich. App. 1984); Cleveland
Police Patr. Assn. v. Voinovich, 15 OhioApp.3d 72, 472 N.E.2d 759 (1984).
Modest financial layoffs are lawful and do
not paralyze police operations. Mcnea v. Voinovich, 70 Ohio St.2d 117,
435 N.E.2d 420 (1982).
Ohio appellate court upholds right of city
to lay off fire and police personnel for economy reasons. Atwood v. Judge,
Director, 409 N.E.2d 1022, 63 OhioApp.2d 94.
No hearings necessary in financial layoffs.
Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. 1981).
Fiscal layoffs must exclude minority firefighters
and police officers in areas where past discrimination is evident. Castro
v. Beecher, 522 F.Supp. 873, 27 FEP Cases (BNA) 1195 (D. Mass. 1981), aff?d
679 F.2d 965 (1st Cir. 1982); see also Brown v. Neeb, 523 F.Supp. 1, aff?d
644 F.2d 551 (6th Cir. 1981).
City can close station and lay off personnel.
Christiansen v. Casey, 428 N.Y.S.2d 317 (A.D. 1980).
Furloughed employees not entitled to hearing.
Almy v. Bor. of Wilkinsburg, 416 A.2d 638 (Pa. Cmwlth. 1980).
Reviewing court in New York declines to ?second
guess? city council ordered layoffs during austerity program. Abbott v.
City of Poughkeepsie, 414 N.Y.S.2d 458 (Misc. 1979).
Cities not required to give preferential
rehiring status to former officers or firefighters, hired under federal
funds, and laid-off when funds expired. Ragner v Zielke, 273 N.W.2d 304
(Wis. 1979).
City?s right to make economic furloughs upheld.
Brookman v. Johns, 405 A.2d 1081 (Pa. Cmwlth. 1979).
City cannot abolish chief?s job for alleged
economic reasons as retaliation for labor union activities. Borough of
Canonsburg v. Flood, 387 A.2d 951 (Pa. Cmwlth. 1978).
County legislators (Bd. of Supervisors) could
not use the budget process to transfer 22 investigators from the District
Attorney?s Office to the Sheriff?s Dept. The transfer prevented the D.A.
from performing the legal mandates of his office. Hicks v. Bd. of Supvsrs.,
69 Cal.App.3d 228 (1977). {N/R}
Termination hearing for economic reasons
unnecessary. Smith v. City of Houston, 552 S.W.2d 945 (Tex.Civ.App. 1977).
Reasons of economy defined in layoff case.
Genes v. City of Duquesne, 367 A.2d 327 (Pa.Cmwlth. 1976).
Pennsylvania court rules that municipalities
cannot reduce work force without statutory authority; firemen reinstated.
Bauer v. Peters, 331 A.2d 245 (Pa.Cmwlth. 1975).
New York court rules that cities have inherent
right to reduce size of work force; collectively bargained agreement prohibiting
force reductions is illegal and unenforceable. Schwab v. Brown, 363 N.Y.S.2d
434, 436 (Misc. 1975).
New York courts rule city can institute economic
furloughs in violation of collectively bargained contract. In the Matter
of Burke v. Bowen, 373 N.Y.S.2d 387 (A.D. 1975); Schwab v. Bowen, 363 N.Y.S.2d
434 (A.D. 1975); Lippman v. Delaney, 370 N.Y.S.2d 128 (A.D. 1975).
Arbitrator requires Detroit fire department
to fill supervisory posts by promotion; economic conditions do not justify
promotional freeze. Detroit Firefighters Assn., IAFF L-344 and City of
Detroit, AAA Cases 54-39-0651-75 and 54-39-0849-75 (Casselman, Nov. 18,
1975).
Abolition of paid positions discussed: Blystone
v. Bor. of Forest Hills, 349 A.2d 494 (Pa. Cmwlth. 1975).
Hearing and appeals discussed. State ex rel.
Dean v. Huddle, 341 N.E.2d 860, 45 OhioApp.2d 163 (OhioApp. 1975).
See also: Contracts and Consultants; Seniority.