Q & A

From New Mexico

Question: Do union members or board members have a right to record interactions (conversations) with supervisors or administration?

Answer: The question of tape recording is answered differently on a state-by-state basis. In some states, labor boards have ruled that a union has no right to insist on tape recording of employer interactions with union officials. The decisions of other states suggest a contrary result. You’ll need to speak with a local lawyer to see which route New Mexico follows.

That said, your question suggests that labor/management relations may have seriously broken down. Tape recording conversations between management and labor — no matter which side initiates the practice — is unlikely to make anything better, and will likely worsen the situation. If you’re concerned about a record being kept of discussions, a slightly gentler approach would be to write “memoranda to file” immediately after the discussions. But more importantly, there’s some work to be done on the overall relationship, suggesting that the services of a mediator or consultant might be in order.

From New Jersey

Question: Can the Fire Chief order a firefighter to be the acting captain for the tour?

Answer: The usual rule is that unless a collective bargaining agreement forbids it, an employer has the management right to order employees to work out of classification or, for that matter, to use any special skills the employee may have.

From Wisconsin

Question: Recently our union president made a statement to a reporter regarding some good police work that was done by the officers in our department. Within a two-hour period, two subjects responsible for numerous burglaries were caught in the act and four subjects that committed an armed robbery of a local business were apprehended. He did not release any names, and no specifics that would interfere with the investigation were revealed. The statement was very positive, as was the reporter’s subsequent story.

Our Chief’s office has launched an internal investigation and our union president is facing serious discipline for speaking to the media. I thought his speech would be protected as he was speaking as a representative of our union and not the department. Am I missing something here? Am I correct that his speech is protected and is there something I can use to support this argument?

Answer: In the wake of the Supreme Court’s decision in Garcetti v. Ceballos, 541 U.S. 410 (2006), courts have held that speech made as part of an officer’s job duties is not protected by the First Amendment. However, there’s an exception to this rule that does retain protection for speech made by union officials in the context of their roles as union officials. You might want to check out these cases. Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006)(Garcetti does not apply where statements made in deputy sheriff’s capacity as union president); Baumann v. District of Columbia, 2010 WL 3833672 (D. D.C. 2010)(same); Shefcik v. Village of Calumet Park, 532 F. Supp. 2d 965 (N.D. Ill. 2007)(same); Glass v. Snellbaker, 2007 WL 1723472 (D. N.J. 2007)(same).

However, a federal court has held unprotected speech by corrections union officers in direct mailings to voters criticizing a sheriff for her treatment of pension funds, holding that “by disparaging the Sheriff’s management style, the plaintiffs sought to advance the union’s bargaining position for their benefit and the benefit of other union members. Although the public would likely be concerned with revelations of discord and dysfunction in the Sheriff’s Office, the import of plaintiffs’ message was diminished by their preoccupation with personal disagreements and internal disputes over the workings of the Department. Plaintiffs’ speech did not purport to alert the public to a significant safety threat; they complained instead of pay raises given by the Sheriff to her friends and the creation of a fiscal mess in the Department.” Bergeron v. Cabral, 535 F. Supp. 2d 204 (D. Mass. 2008).

From Michigan

Question: A police report was created by an outside agency (agency X) investigating a potential criminal offence committed by an officer of agency Y. The investigation concluded there was no crime committed. Should there be a file kept separate from that officer’s normal personnel file at agency Y containing the police report? If so, how long?

Answer: We know of nothing in national law that either prohibits or mandates that the investigatory file be maintained. Whether it is maintained will likely come down to (1) the provision of the state’s public records laws; (2) any applicable provisions in a collective bargaining agreement; and (3) whatever practices the employer has adopted.