Q & A

From Arizona

Question: During an Administrative Investigation, can an employee of equal rank question you? (i.e., a police sergeant interview a police sergeant).

Answer: Unless there’s a provision in a collective bargaining agreement or local law to the contrary, we know of no prohibition on individuals performing internal affairs investigations on other employees of equal rank.

From California

Question: Can a department prohibit its officers from going to Hooters while in uniform?

Answer: We see no constitutional bar on the employer imposing restrictions on where officers can eat in uniform. That said, you’re in a state with collective bargaining for public safety employees. Several state labor boards have ruled that restrictions on where an employee can eat a meal are mandatory for bargaining. If that’s the case in California, the employer might have a meet-and-confer obligation before implementing the change.

From Washington

Question: Is there a general template as to what is allowed and disallowed to be posted on union bulletin boards at a fire station? We have members professing freedom of speech. However, I believe it should at a minimum be work-related, educational, informative, etc.

Answer: We don’t know of any general template that’s out there for bulletin board use. Three guidelines, though: (1) In states with collective bargaining (such as Washington), it’s quite common to include in collective bargaining agreements a clause that lays out the conditions for bulletin board use, and the topic is an appropriate one for collective bargaining; (2) The usual rule is that the initial gatekeeper for the bulletin board is the union, and the union can (and should) lay out the conditions for posting, particularly since messages on a bulletin board posted by individual union members may be considered by some of those who read them to be official union policy; and (3) Employers have some ultimate control over bulletin boards to make sure the postings do not violate discrimination or other laws.

From New Mexico

Question: New “performance standards” were given to our patrol officers on day shift (6 am – 2 pm): 25 traffic cites per month, 200 citizen contacts per month, 15 field interviews per month, four misdemeanor arrests per month, one felony arrest every two months, and one DWI arrest every three months. Consequences for not meeting standards were not formally given, but a written reprimand was implied. When asked how they are supposed to get a DWI working 6 am – 2 pm, the lieutenant told them they should sign up to work a DWI roadblock or saturation patrol (extra-duty assignment). I have heard there is a lot of controversy on the issue of performance standards. Does this situation sound kosher?

Answer: The usual rule in states with collective bargaining is that a change in disciplinary standards concerns discipline, and thus is a mandatory subject of bargaining. That would mean that the employer would have to first discharge its bargaining obligation before it implements the changes. Because you refer to the fact that the performance standards are in place, the time for bargaining may well be past. The only issue remaining would be whether discipline imposed under the standards would be considered to be for “just cause.” We’re in no position to evaluate the propriety of the standards you describe; what we can say is that arbitrators give great latitude to employers in setting employment standards of this type.

This article appears in the August 2011 issue