Tattoo Policy Ruled Non-Negotiable

Public Safety Labor News

This article appears in the January 2020 issue of our monthly newsletter, Public Safety Labor News.

From 1988 to the summer of 2016, the City of Philadelphia did not have a policy regulating or restricting tattoos for police officers applying for a position with or during their tenure as officers for the City. During the summer of 2016, the Democratic National Convention was held at the Philadelphia Convention Center. During the Convention, a protestor posted on social media that they were offended by a bicycle patrol officer’s tattoo, which depicted an eagle over the top of a German flag with the inscription “Fatherland.” The social media posting likened the tattoo to a Nazi symbol.

The Jewish community and other groups expressed disdain for the officer’s tattoo and criticized Police Commissioner Richard Ross for permitting the officer to have such a tattoo. The news media covered the outcry over the officer’s tattoo. The Mayor issued several statements to the media indicating that he was offended by the officer’s tattoo and ordered an investigation. The officer was not disciplined because the City did not have a tattoo policy.

In response, the Department adopted a new tattoo policy. Under the policy, visible tattoos or body art on the head, face, neck or scalp must be covered by cosmetics or clothing. The policy also requires that “any visible tattoos or body art that are offensive, extremist, indecent, racist or sexist will be covered by cosmetics or clothing.”

Lodge 5 of the Fraternal Order of Police filed an unfair labor practice complaint against the City, contending that the City was required to bargain over the policy. Pennsylvania’s Labor Relations Board disagreed, concluding that the policy was a non-negotiable management right.

The Board ruled that

“Matters of managerial decision-making that are fundamental to public policy or to the public enterprise’s direction and functioning do not fall within the scope of bargainable matters. The City has an interest in its officers, as representatives of the City, having an appearance of providing fair, balanced and non-prejudicial law enforcement.

“Offensive tattoos undermine the public perception of the integrity and credibility of the officer and the City thereby losing the public’s trust. On balance, we find that bargaining over the tattoo policy would unduly infringe on the City’s managerial provision of services to the public.

“The FOP asserts that the tattoo policy does not achieve the City’s stated purpose of maintaining public trust and respect because the City did not have a previous tattoo policy. The uncontested findings establish that the tattoo policy was a legitimate response to the negative public outcry covered by the media concerning a police officer’s tattoo that was interpreted to be a Nazi symbol. People from the Jewish community, other groups, as well as the Mayor expressed disdain for the officer’s tattoo and criticized Police Commissioner Ross for permitting the officer to have such a tattoo. That one instance was sufficient to negatively impact the public’s trust and respect in the City’s officers, necessitating the City to respond in order to gain that trust back.

“The FOP further alleges that the policy is overbroad and vague because it applies to all officers, regardless of whether they have contact with the public, and the definitions of prohibited tattoos do not clearly explain the types of tattoos that would violate the policy.

“However, we find that the City’s requirement that all tattoos on the head, face, neck and scalp be covered regardless of content is specific and narrowly tailored to projecting a professional appearance of its officers to the public. Indeed, the requirement to cover tattoos located in these visible areas is not unlike the City’s restrictions in its dress code regulating the officers’ hairstyles, hair length, hair accessories, sideburns, mustaches and beards.

“We also find that the definitions of what constitutes an offensive, extremist, indecent, racist or sexist tattoo is not vague or ambiguous. Indeed, the policy provides the officers with specific examples of what constitutes offensive, extremist, indecent, racist and sexist tattoos. Further, the tattoo policy does not preclude officers from obtaining tattoos, but merely requires officers to cover tattoos that could be deemed offensive to the public.

“We conclude that the City did not violate its duty to bargain in good faith by adopting the policy.”

Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 51 PPER ¶ 28 (Penn. LRB 2019).

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