As a union attorney, I am often hopeful that grievances can be settled in the early stages of the grievance procedure, before I even have to get involved.  This allows local directors and employers to craft settlements unique to their departmental needs and promotes good labor relations.  Unfortunately, sometimes employers interpret this approach as negating the need to involve the Union in settling grievances. Also unfortunate, at times the employer purposely tries to keep the Union from being in the room during the grievance proceedings.  Regardless of which situation may apply, most directors and longtime union members can recall a situation where either they or someone they knew were pressured into agreeing to a grievance settlement without a union representative being present.  Often times, directors may only learn of these agreements after the fact, leading directors to ask two questions: (1) Did the employer have to notify the Union of the proposed agreement before the employee signed it? and (2)  Can the Union do anything about it?

Recently, the OPBA asked the State Employee Relations Board (SERB) to answer these two basic questions in an unfair labor practice charge brought against the Williams County Sheriff’s Office.  The charge involved conduct by the Sheriff against a Deputy during the signing of a “Last Chance Agreement” (LCA).

The basic facts supporting the charge were undisputed.  After investigating allegations of the Deputy’s misconduct, the Sheriff called the Deputy and the local OPBA Director in for a meeting to discuss the Deputy’s discipline.  During the course of the meeting, the Sheriff presented the Deputy with a LCA.  Under the terms of the agreement, the Sheriff agreed to not terminate the Deputy for her alleged misconduct.  In return, the agreement stated that the Deputy would waive the right to grieve any future discipline or termination arising out of similar misconduct.

After looking over the document, the OPBA director asked to have time to talk to an OPBA attorney, and to fax the document to the attorney for review.  The Sheriff denied this request, stating that this was a “take it or leave it” deal and any attempt to have the LCA reviewed by the OPBA attorney would result in the agreement being taken off the table.  Facing this ultimatum, the director left the room to contact the OPBA attorney for further guidance.

While the director was out of the room, the Deputy continued questioning the Sheriff about the terms of the LCA.  Faced with the threat of immediate termination if she did not sign the agreement, the Deputy decided to sign the LCA before the director returned to the room.  Upon learning of this, the OPBA filed an unfair labor practice over the Sheriff denying the Deputy and director time to talk to the OPBA and denying their request to fax the agreement to an OPBA attorney for review.

After reviewing the facts of the case, SERB concluded that the Sheriff had committed an Unfair Labor Practice.  SERB reasoned that a LCA is a contract whereby the employee agrees to give up his or her rights under the CBA to grieve any future discipline in return for the employer’s promise to not terminate the employee for the current misconduct.  SERB further concluded that the OPBA was the exclusive bargaining representative for all bargaining unit employees and had the sole authority to negotiate contracts on the employees’ behalf.  When the Sheriff refused the request to have the OPBA’s attorney review the agreement and represented that the deal was “take it or leave it,” the Sheriff refused to honor the OPBA’s status as the exclusive bargaining representative.  Moreover, the Sheriff’s representation that the deal was “take it or leave it” was a refusal by the Sheriff to bargain over an agreement that affected the terms and conditions of employment of an OPBA member.

Although SERB has long recognized an employee’s right to union representation during investigatory meetings, with the decision in Williams County Sheriff’s Office SERB has affirmed that this right also applies to the Union’s right to review and negotiate the terms of a Memorandum of Understanding or Last Chance Agreement.  Directors may also use the reasoning that SERB applied in this case to assert the OPBA’s right to review and negotiate over the terms of any grievance settlement.

The bottom line is this.  Although employees are allowed to settle their own grievances so long as the settlement is consistent with the terms of the CBA, when the proposed settlement affects the terms and conditions of the grievant’s employment, such as a Memorandum of Understanding or a Last Chance Agreement, then the employer must bargain with the Union over its terms.

Importantly, the decision in Williams County Sheriff Office reminds us of one other principle.  When engaged in discussion with your employer over grievances or other matters covered by the CBA, the employer cannot unreasonably deny your ability to contact an OPBA director or attorney to discuss the issue.  If you are faced with a situation such as this, and you are unsure what to do, please do not hesitate to contact the OPBA for further guidance.

Members often tell me in the context of an internal investigation something to the effect that their Employer asked them questions and never offered them Union representation.

While I am sure that this topic has been addressed before, it bears repeating that an Employer is not required to offer an employee Union representation before questioning, unless the collective bargaining agreement specifically mandates that the Employer do so.

Rather, what the law requires in these situations is that the Employer permit the employee to be represented, under certain stated conditions, upon the employee’s request.

Specifically, in In re Davenport, SERB 95-023 (12/29/95) the State Employment Relations Board (“SERB”) adopted the standard set forth by the United States Supreme Court in NLRB v. Weingarten, 420 US 251 (1975), at page 3-156, by stating:

We believe that Weingarten provides the proper balance between the public employees’ rights in ORC §4117.03(A)(2) to engage in concerted activities for mutual aid and protection.  Therefore, we specifically find that, upon an employee’s request, representation by an employee organization is required at investigatory interviews which the employee reasonably believes could lead to discipline (the Weingarten standard) and at grievance meetings.

SERB amplified its above finding in Davenport, above, in In re City of Cleveland, SERB 97-011 (6-30-97) when it held that an unfair labor practice, under R.C. §4117.11(A)(1), for the denial of the right to representation is established when the following four elements are proven:

1. That the interview was investigatory[1];
2. That the employee requested the presence of a Union representative and the request was denied;
3. That the employee reasonably believed that the interview might result in discipline[2]; and
4. That after the Employer denied the employee’s request for representation, the Employer compelled the employee
   to continue with the interview.

Consequently, absent express contract language requiring the Employer to offer Union representation prior to interrogating an employee in an investigatory interview, the employee must specifically request the presence of a Union representative.

Please contact your OPBA representative anytime that you have any questions about representation issues or any other relevant matters.

[1] In In re State Employment Relations Board v. State of Ohio, Dept. of Rehab. & Corrections, Ross Correctional Institution, SERB 99-004 (2-12-1999), SERB indicated that “a meeting is investigatory if its purpose is to elicit information pertaining to the conduct of the employee being interviewed.”

[2] “An employee’s reasonable belief that discipline may be imposed as a result of the interview will be measured by an objective standard: whether a reasonable person would believe that discipline may be imposed on the employee involved as a result of the interview.  Id.  It is irrelevant that no discipline actually resulted if the employee possesses the requisite reasonable belief that discipline might result.”  Ohio Dept. of Rehab. & Corrections, supra, at p. 5 of 7.

I have written a lot of my articles about the economy and wage increases lately.  Most everyone is interested in the outlook for wage increases and most of us have been impacted by the recession that started in 2009.  In fact, most of us are still being impacted today.

However, I noticed an article recently that many represented by the OPBA might be interested in.  It relates to the use of strip searches at jails and other detention facilities based upon the recent ruling by the U. S. Supreme Court in Florence v. Board of Chosen Freeholders, #10-945, 132 S. Ct. 1510, 2012 U.S. Lexis 2712.

In the instant case, the arrest was made due to a bench warrant that was no longer good.  He had fallen behind on paying a court fine, but had actually paid it off several years prior to his arrest.  He was then strip searched at one prison and transferred to another six days later.  He was then strip searched again, which lead to his complaint.

Mr. Florence felt that he should not have had to endure the humiliation of a strip search based upon the charges against him and his good behavior. Both of the prisons had a blanket policy of strip searching any and everybody when they arrive regardless of the charges.  This was the focus of the ruling.

Prior to the Florence ruling, a reasonable suspicion standard was the law of the land.  There had to be a detailed analysis to prove the need to strip search an inmate.They had to consider such issues as what type of inmates they were housing, what type of offence they were charged with, and how they were behaving.

Four of the Justices felt there should be a reasonable suspicion that the detainee might be in possession of contraband that could be a threat to the safety and/or security of officers in order to conduct a strip search. They felt there were other options available rather than forcing the humiliation associated with strip searches.

Although they did mention that it is difficult and dangerous to work in such environments, they pointed to the seven federal courts that have ruled for a reasonable suspicion standard for strip searches.  They also noted that ten states have made the reasonable suspicion standard the law.

The dissenting judges also pointed out that many correction officer organizations believe that in most circumstances strip searches should only be done for reasonable suspicion.  They further noted the amount of contraband found during the strip searches was quite small.

Rather than strip searching without reasonable suspicion, they said much more reasonable methods could be just as useful without being so humiliating.  Among their suggestions were metal detectors, pat downs, and searching clothing while the detainee is showering.

However, the majority ruled otherwise.  They acknowledged the inherit dangers in the Corrections field and the requirement for safety at length.  Further, they noted that those in the field understand the risks and dangers much better than anybody else.  Therefore, they should be the ones to create proper policies.  As such, they gave the administrations a great deal of latitude in the creation of such search policies.  In effect, they ruled that the interest in safety and properly running the institution trumped the inmate’s constitutional rights.  Of course they also noted that different institutions may not have such rights given the differences in facilities and their populations.

In addition, they pointed out that case law upheld the use of strip searches due to the decrease in the likelihood of carrying contraband into prisons.  The amount of contraband actually found wasn’t a major factor in such cases.

New inmates may not even be fully researched when they enter the system.  Some may be weekend inmates because they are low risk, but that would make it easier for them to bring contraband into the system on a regular basis.

Furthermore, given the ever changing populations, it creates a large burden to monitor them enough to properly weed out those who should be strip searched.  Given the large number of injuries committed with contraband, it doesn’t make sense to create such burdens.  Over ten thousand COs are injured annually from inmates, and many more inmates are hurt by each other.

There are also some benefits to the actual inmates being searched.  In doing so, illness and infectious diseases can often be noticed.  Thus treatment can begin and the rest of the population can safely avoid it. Furthermore, gang symbols are easily detected, which allows officials to place them accordingly.

The 2013 Cops Ride charity motorcycle rally will be Sunday, June 30, 2013. The Fifth annual ride has a new route and ending destination. The ride starts at the Greater Cleveland Peace Officer Memorial in downtown Cleveland, travels through Cuyahoga County ending at South East Harley Davidson in Bedford Hts. The ride will benefit the Greater Cleveland Peace Officers Memorial Society. The Memorial Society honors and preserves the memories of peace officers who gave their lives in the performance of service to their communities and the nation and provides support to the families of fallen officers. www.policememorialsociety.com

The Cops Ride board would like to thank its sponsors, volunteers and most importantly its participants who joined us and made our fourth ride a success. We raised $10,000.00 for the Ohio chapter of Concerns of Police Survivors

Cops Ride is a Cleveland area non-profit organization composed of volunteers from both the law enforcement community and the private sector. Cops Ride's goal is to offer an enjoyable and safe motorcycle ride every year as a fundraiser for various law enforcement related charities.

Registration begins April 1, 2013 online on our website and at participating locations. Please check our website WWW.COPSRIDE.COM for an updated list of registration sites and information about the ride.

Riders registered before June 16, 2013 will get a free t-shirt. The cost is a $20 per rider, not per bike. Men’s size XXXL and larger will cost an additional $5. T-shirts will be sold the day of the event.

If you would like to make a donation or have a question you can e-mail us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or call Mark Krumheuer or Guy Turner at 440-871-3311.

Thank you for your continued support.

Respectfully,

Paul Shepard

Vice-President

Cops Ride

Each day, more than 900,000 federal, state , and local law enforcement officers put their lives on the line to keep our
communities safe. Tragically, sometimes the unthinkable happens and a police officer is injured or killed in the line of
duty by a violent criminal. In such instances, the quick dissemination of important, time-sensitive information about
suspected criminals is essential to keeping our communities safe.
The National Blue Alert Act will encourage, enhance and integrate blue alert plan s throughout the United States in
order to effectively disseminate information notifying law enforcement, media and the public that a suspect is wanted
in connection with an attack on a law enforcement officer.
A growing number of states (now 18) have established a Blue Alert system. However, there is no national Blue Alert
system, nor is there a federal official designated to coordinate the Blue Alert program and share best practices among
states.

Specifically, the National Blue Alert Act of2013 directs the Department of Justice to:

• Establish a national Blue Alert communications network within the Department of Justice (DOJ) to disseminate
information when a law enforcement officer is seriously injured or killed in the line of duty, in coordination
with federal, state, and local Blue Alert plans.
• Assign an existing DOJ officer to act as the national coordinator ofthe Blue Alert communications network.
This coordinator will, among other things:

o Provide assistance to states and local governments that are using Blue Alert plans ;
o Establish voluntary guidelines for states and local governments to use in developing such plans;
o Ensure compliance with privacy laws and civil liberties protections;
o Develop protocols for efforts to apprehend suspects;
o Work with states to ensure appropriate regional coordination of various elements of the network;
o Act as the nationwide point of contact for the development of the network and the regional coordination
of Blue Alerts through the network; and
o Determine and share what procedures and best practices are in use for notifying law enforcement and the
public when a law enforcement officer is killed or seriously injured in the line of duty
Please monitor NAPO's website www.napo.org, and Facebook page: National Association of Police Organizations, and
follow us on Twitter at NAPOpolice for breaking news and updates.

The State of New York last week passed sweeping new state level legislation that greatly restricts the ability to own or
carry certain firearms in that state. Regrettably, the Governor and the proponents of this legislation, in their haste to
push this law though the State Assembly, failed to take into account the legitimate needs of active and retired law
enforcement officers to defend themselves and the public. NAPO worked with its New York groups, particularly the
NYPD Detectives Endowment Association, while this bill was in the works, in an effort to prevent the new law from
harming police officers, but those efforts unfortunately failed. A question then arises, as to whether or not the federal
Law Enforcement Officers Safety Act (18 U.S.C. §§ 926B et seq.) (commonly known as "H.R. 218" from its
original Bill number) provides protection for active and/or retired officers who are in New York State.

It is important to note that the federal law, H.R. 218, DOES provide SOME protection for officers, both active and
retired. This is because the federal law applies "Notwithstanding any other provision of the law of any State or any
political subdivision thereof ..." (18 U.S.C. §926B(a)) HOWEVER, that protection is LIMITED by the terms of the
federal statute, as far as what is covered. Thus , when an officer (active or retired ) carries a firearm pursuant to the
terms ofH.R. 218, the FIREARM itself is protected, (18 U.S.C. §926B(e)(1)) as well as any AMMUNITION not
prohibited by FEDERAL law (18 U.S.c. §926B(e)(2)) So, for example, hollow points are O.K., even ifthe locality
normally prohibits them. BUT the language of H.R. 218 is silent as to MAGAZINES. And thus provides no
protection under federal law for state or local officers or deputies who wish to rely on it to overcome regulations
like the new New York law which prohibits magazines of greater than 7 rounds capacity. (See 18 U.S.C. §927,
Effect on State Law) Also, it is important to remember that even under H.R. 218, the right to carry a firearm is not
universal. I-I.R. 218 overrides State and Local laws, not federal ones, so it gives no right to carry a firearm on a
commercial airliner, for example. Also , H.R. 218 by its own terms "shall not be construed to supersede or limit the
laws of any State that- (1) permit private persons or entities to prohibit or restrict the possession of concealed firearms
on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property,
installation, building, base, or park." (18 U.S.c. §926B(b) So a local government can still control the right to carry on
its own local governmental property (as opposed to public spaces), and a private citizen or shopkeeper can still control
who can carry on his or her own private property.

Please monitor NAPO's website www.napo .org, and Facebook page: National Association of Police Organizations, and
follow us on Twitter at NAPO police for breaking news and updates.

Relatively slow month being the last meeting of 2012. Things will rev up in the new year beginning with work on disability grants and the coordinated benefits associated with such grants. We have special meetings planned for February and April to address these issues. We anticipate that the OR5C will address this issue next year so we would like to be proactive in our work and see if we can establish some type of reform. We think that the ORSC will look at all the systems as a whole but ours always stands out when it comes to disability grants. We currently have one of the highest disability grants in the country amongst police and fire pension funds. We believe they will look at the process and coordination of benefits as their priority.

Wachtmann will head up the OR5C for 2013 ...great, he is a knucklehead so who knows what he will be planning. Good news is that he is done after two years as he will be termed out. Keith Faber is out of the OR5C, he will be taking a new role somewhere so he will not be on this committee. There was no OR5C meeting in December as they were in lame duck session. Meetings will start up again in January.

Buck and Associates, our actuary presented us with a "preliminary study" which implemented the changes that will occur from 5B340. The good news that comes from this is that with the changes and the investment returns we have gathered since the downturn we are making significant headway in the right direction. Although we may be a little short of our 30 year funding, we will be very close. We still have to let the changes go into effect and we will revisit this study in 2017 to see where we are at before addressing any further changes. We anticipate our investment returns for 2012 to be in the vicinity of 12+% but of course I will not
know the exact number until January 1st.

Although not in Ohio yet, obviously we are all aware of the right to work initiative that has been passed in Michigan. Kasich was quoted as saying that it was not on his agenda or the legislatures agenda in Ohio for the immediate future. Kasich believes that the 5tate is moving in the right direction and that this does not need to be addressed to move us ahead. With that being said, there is a private group gathering signatures to place this issue on the ballot and it appears that they may have enough to get it there. I know it has nothing to do with the pension system but we have to be aware of this because we may be dealing with it again. AQuinnipiac pole has shown that Kasich's approval rating is at a whopping 42% and with his re-election campaign starting in 2013 it will be important to keep an eye on how he moves along.

We did pass as a board new language for the "anti-spiking salary language" that appears in the changes to 5B340. Moving forward, the process of promotions will not be subject to the anti-spiking elements written in the bill. Natural promotions will have its own language and not subject to any spiking clause. The overtime accrued with promotions will be subject to the cap but if your salary alone puts you over the cap, you would not be subject to the cap. Again, this is only for promotions of rank within or outside of your respective departments. The vote passed closely 5-3 and ,was a very difficult and debated topic amongst the trustees. We will be working on the health care subsidy linked to years of service in 2013 and the parameters surrounding that. I will let you know what we decide for spousal benefits and other items that create issues with this change. We will be addressing this at our special meeting in February. As it still stands, health care will be paid at a rate of 3% per year (member) and 1%per year (spouse) with a total of 75% and 25% respectfully for 25 years of service. This is the cap, so if you work 26 +years it will not be more. This was the last meeting for Bill Estabrook and Kay Penn. They were very good for our fund and will be missed. If you had the pleasure of meeting any of the two or needed them you will know what they did for this fund. John Gallagher and Jennifer Harville will be taking their positions respectively. John will be an excellent fit and Jennifer has been with the fund for 15 years. Both will do an excellent job.

Thanks for your support during the year, 2012 was challenging with the implementation of 5B340 and the changes we had to endure. Although it was not easy at times to swallow and even more challenging being a board member explaining various things, I appreciate the patience and hopefully this will be a good start to a great 2013 for everyone.
Take care,
Scott Huff