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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Know Your Rights Concerning Union Representation

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.


 

Florence v. Board of Chosen Freeholders

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.

 

Washington Report May


NAPO Attends White House Briefing on Immigration Reform

On May 14th, NAPO's Executive Director, Bill Johnson , and Massachusetts Coalition of Police Representative and NAPO Area Vice President, Scott Hovsepian, attended a White House briefing on the Administration's efforts and current legislation regarding immigration reform. The following Administration officials provided presentations during the briefing: Secretary Janet Napo litano (Department of Homeland Security)' Mr. R. Gil Kerlikowske (Director, Office of National Drug Control Policy);Mr. Tony West (Associate Attorney General, Department of Justice); and Ms. Julie Chavez Rodriguez (Associate Director, Office of Public Engagement). Topics of discussion included: border security, modernization of the legal immigration system, employer accountability, community safety, and pathways to earned citizenship for the 11 million undocumented people currently residing in the United States.

NAPO Victory - U.S. House of Representatives Passes National Blue Alert Bill

The National Blue Alert Act of2013 (H.R. 180) passed in the House of Representatives on May 14,2013, and will be sent to the Senate for consideration. During his floor statement, judiciary Committee Chairman Bob Goodlatte (RVA), recognized NAPO as a supporter of this legislation. This bill reaffirms NAPO's commitment to ensuring the safety of our law enforcement men and women and the communities they serve to protect every day. NAPO will continue to advocate for the passage ofthis legislation as it moves to the Senate for consideration.

NAPO Meetings on Capitol Hill- Postal Police Officers Association

On May 14th, NAPO staff accompanied members of the Postal Police Officers Association (PPOA) to meetings on Capitol Hill to discuss language modifications to Title 18, United State Code, Section 3061. (In Title 18, U.S.C., Section 3061, Congress prescribed law enforcement functions for the Postal service. These functions are to be carried out by Postal Inspectors and uniformed police. Congress granted the Postal Service the author ity to have Postal Police Officers serve warrants and subpoenas and conduct certain postal investigations. The Postal Service has not yet availed itself of this authority).


NAPO and the PPOA took the opportunity to meet with the following staffers to discuss language modifications for Title 18, U.S.C., Section 3061:

  • Congressman Peter King's (R-NY) staffer, Ms. Erin Ingraham. (During the meeting with Ms. Ingraham, NAPO and PPOA also expressed appreciation for Congressman King's re-introduction of the Law Enforcement Officers' Equity Act).
  • House Oversight & Government Reform Committee staffer, Mr. Jeff Post. Mr. Post handles postal service issues for the Chairman of the House Oversight & Government Reform Committee, Congressman Darrell Issa (R-CA).
  • House Oversight & Government Reform Committee staffer, Mr. Kevin Corbin. Mr. Corbin handles postal service Issues for the Ranking Member of the House Oversight & Government Reform Committee, Congressman Elijah Cummings (D-MD).
  • Congressman Blake Farenthold's (R-TX) staffer, Ms. Olivia Chriss. Congressman Farenthold is the Chairman of the House Committee on Oversight and Government Reform Subcommittee on the Federal Workforce, U.S. Postal Service, and the Census.
  • Senate Homeland Security and Government Affairs Committee staffer, Ms. Kata Sybenga. Ms. Sybenga handles postal service issues for the Chairman of the Homeland Security and Government Affairs Committee, Senator Tom Carper (D-DE).


Each of the aforementioned staffers was receptive to the proposed new language. NAPO and the PPOA plan to followup with these staffers during the coming weeks to continue to advance this issue.

Excellence in Mental Health Act

NAPO has signed-on to a letter of support for the Excellence in Mental Health Act. The bipartisan Excellence in Mental Health Act (S.264/H.R.1263) , introduced by Senators Debbie Stabenow (D-MI) and Roy Blunt (R-MO) and Representatives Doris Matsui (D-CA) and Leonard Lance (R-NJ), would expand access to community behavioral health centers and improve the quality of mental health and substance use treatment for all Americans. NAPO's support of this legislation reaffirms our commitment to supporting efforts to improve access to mental health services for people who come into contact with the criminal justice system.


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.
Copyright  NAPO 2013. All rights reserved.

 

NAPO Legislation prior to 2013

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