No Obligation To Bargain With Union Over Implementation Of Racial Profiling Policy; “Effects Bargaining” To Await Another Day

In May 2000, the City of Claremont, California Police Department implemented a tracking program to determine if police officers were engaging in racial profiling. The Claremont Police Officers Association made no request to collectively bargain (or, as it is referred to in California, meet and confer) with the City before the program was instituted, and the program lasted one year.

In February 2002, the Department announced its intent to implement a “Vehicle Stop Data Collection Study,” which would require officers on all vehicle stops to complete a preprinted scantron form called a “Vehicle Stop Data Form.” The Form included questions regarding the “driver’s perceived race/ethnicity,” and the “officer’s prior knowledge of driver’s race/ethnicity.” On average, the Form takes two minutes to complete, and an officer may complete between four and six Forms for each 12-hour shift. Each Form is traceable to the individual officer making the stop. The Study was to last 15 months, commencing July 1, 2002.

In April 2002, the Association requested that the City meet and confer regarding the Study. The City disagreed, and the Association responded with a lawsuit.

The California Supreme Court ruled that the City had no obligation to bargain over the implementation of the Study. The Court began with a recitation of the unusual structure of California bargaining law, which gives to employers the right “to make unconstrained decisions when fundamental management or policy choices are involved.” In prior cases involving law enforcement officers, California courts had held that such fundamental managerial or policy decisions include changing the policy regarding a police officer’s use of deadly force and permitting a member of a citizen’s police review commission to attend police department hearings regarding citizen complaints and sending a department member to review commission meetings.

The second basic proposition outlined by the Court was that California recognizes a distinction between “decisional” bargaining and “effects” bargaining. As put by the Court, “there is a longstanding distinction under the National Labor Relations Act (NLRA) between an employer’s unilateral management decision and the effects of that decision, the latter of which are subject to mandatory bargaining.”

Putting these two principles together, the Court found that the impact of the implementation of the Study did not have a “significant and adverse effect on the officers’ working conditions. The record reflects that in those cases resulting in citation or arrest, the Study requires slightly more information to be collected by the officer than required in completing the citation or arrest report. Officers may complete a Form in about two minutes and may complete between four and six such Forms in a 12-hour shift. The superior court concluded that the impact on the officers’ working conditions was de minimis. We agree and conclude the City was not required to meet and confer ‘with the Association before implementing the Study.’”

The Court set aside for another day the question of whether any of the “effects” of the implementation of the Study should be bargained, believing the record before it inadequate to make a decision: “Based on the limited record before us, there is no evidence regarding what effects would result from implementing the Study; for instance, whether the data collected and later analyzed will result in discipline if an officer is found to have engaged in racial profiling, or whether the City will publicize the Study’s raw data. It is also not clear from the record what exact methodology the City has adopted to analyze the collected data to determine any racial profiling. Nor can we say that racial profiling studies have been so historically associated with employee discipline that their implementation invariably raises disciplinary issues. Thus, we do not decide the issue whether the City was required to meet and confer with the Association over any effects resulting from the City’s decision to implement the Study.”

The Court concluded its opinion with a caution: “We emphasize the narrowness of our holding. In determining that the City was not required to meet and confer with the Association before implementing the Study, we do not decide whether such a duty would exist should issues regarding officer discipline, privacy rights, and other potential effects arise after the City implements the Study. Based on the record, that question is not before us.”

Claremont Police Officers Ass’n v. City Of Claremont, 2006 WL 2336891 (Cal. 2006).

This article appears in the September 2006 issue