The Ohio Patrolmen's Benevolent Association (O.P.B.A)
The Ever Challenging Task of Maintaining Affordable Health Care
Let’s face it, having health care insurance is almost as important as having a monthly paycheck when you retire. The older we get the more susceptible we are to needing health care. While we are younger we may not realize the need and importance but as we approach retirement we appreciate more and more the option of having it.
Earlierl, I mentioned what I call in health care as “arbitrary billing.” A scary thought but this is reality as I recently had another child via C section. No staff came in told me how much it would cost, no one told us how much each shot or anesthesia would cost or even the stay each night in the hospital. Even if they would have I couldn’t tell them “well, let me shop that around.” I was stuck and whatever procedure they did I had to live with.
A month later I receive summary of charges in the mail (what the insurance was billed). They billed $11,000.00 for the procedure. Ironically, my two year old came the same way and the insurance was billed only $4500.00 for the same C section. The increase in a two year period was ridiculous but again arbitrary and there was nothing I or you will be able to do about it. For us the cost was $500.00 for the first child and $1700.00 for the second
Insurance costs keep rising beyond the cost of inflation. The pension board based on recommendations by actuaries had to raise health care rates this year alone by 13.2%. When you add the fact that we can only subsidize a spouse and children by 25% it makes the cost to the retirees rough. We continually fight this as it challenges the financial being of the fund and the health care stabilization fund. Recently, Ohio Public Employee’s Pension Plan (OPERS) phased out spousal subsidies and is moving toward a stipend system where employees must purchase their own health care.
Move now to the “Affordable Health Care Act” and now no one knows what is going on. Basically everyone is in some type of limbo until this act goes into effect in 2014. If a plan wants grandfathering status which appears to be advantageous then the plan cannot make any changes. OP&F has to wait to see if grandfathering is more advantageous or making changes and losing that status is more beneficial.
The solution is always challenging and the good news is the health care stabilization fund is doing well and growing. The pension board is continually looking at ways to keep health care for the retirees for a long period of time. There has never been talk on removal of health care, only ways to make it more affordable. It is a challenge we are up to and we will continue to work to provide health care options for the members and their families.
Must Departments Make Accommodations for Pregnant Law Enforcement Officers?
Women, who continue to make up a small percentage of the law enforcement workforce on a nationwide basis, often encounter challenges when they are seeking accommodations at work for pregnancy-related issues. Questions involving light duty accommodations typically arise when complications or the advanced stages of pregnancy create the need for the officer to be placed in a light duty assignment.
Such issues for pregnant women are covered by the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act of 1964. As such, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which applies to employers with 15 or more employees, as well as state and local governments. Under the law, an employer is required to treat its pregnant employees the same as it treats other employees who suffer restrictions as the result of non-pregnancy related injuries or medical conditions.
Consider the following hypothetical: female officer, Jane, learns that she is expecting a baby. Her doctor advises her that she will not be permitted to work on road patrol at the beginning of her third trimester because of the increased risk of injury to Jane and her unborn child if she is involved in a physical altercation. Upon learning this information, Jane immediately seeks out her chief to discuss the possibility of a light duty assignment on station when she reaches her third trimester. The chief advises her that the department has no light duty to offer her, and she will have to begin using sick leave or Family Medical Leave when she is no longer able to work unrestricted duty on road patrol.
If the department consistently denies light duty to all officers, regardless of the cause of the need for restricted duties, a denial of light duty work to this pregnant officer is not a violation of the officer’s rights under the PDA.
However, assume the department previously allowed light duty assignments for other officers who were suffered injuries or other illnesses that prevented them from working full, unrestricted duty. In this situation, a denial of light duty to the pregnant officer could constitute a violation of the PDA because the department would be treating the pregnant officer different than other officers with non-pregnancy related disabilities.
On the other hand, many small departments, who have a limited capacity for light duty work, may provide light duty assignments only to officers injured in the line of duty, but not for other employees who have work restrictions at the result of non-work related injuries or illnesses. Does an employer violate the PDA if it denies light duty work to the pregnant officer in this situation? The Sixth Circuit Court of Appeals addressed this question in Reeves v. Swift Transportation Company, Inc., 446 F.3d 637 (6th Cir. 2006). In that case, the employee, a truck driver, was discharged when she was no longer able to perform heavy lifting and required light duty in the late stages of her pregnancy. The employer had a policy of only offering light duty to employees injured on the job.
The court held that the employee’s discharge was for legitimate, non-discriminatory reasons, recognizing that truck drivers must be able to lift heavy weight. The fact that the employer allowed light duty for employees with work-related injuries did not trigger application of the PDA. Citing other decisions on this issue, the court noted that the plaintiff was not making a claim of discrimination, but rather, a claim for preferential treatment. Id. at p. 642. “As long as pregnant employees are treated the same as other employees injured off duty, the PDA does not entitle pregnant employees with non-work related infirmities to be treated the same under [the employer’s] light-duty policy as employees with occupational injuries.” Id. (quoting Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 208 (5th Cir., 1998)).
Just as the PDA requires employers to treat pregnant employees the same as other disabled employees, employers cannot force pregnant employees from their assignments or prematurely force such employees into restricted duty assignments out of concern of injury to the officer or her unborn child. In other words, it is unlawful for an employer to remove a pregnant employee from her assignment in anticipation of limitations she may have or based on assumptions or preconceived notions of limitations her pregnancy may cause. See generally, UAW v. Johnson Controls, 499 U.S. 187 (1991).
In most cases, those who believe they have been the subject of discrimination under the PDA must look to federal law for recourse. However, some collective bargaining agreements address light duty and may afford the affected employee a remedy if that light duty has been wrongfully withheld. Anyone having questions as to whether these rights have been violated should contact their OPBA representative for the appropriate guidance.
Who is a Deputy?
Under Ohio’s collective bargaining law public employees are divided into two camps. On the one hand are the “right to strike” employees. Units consisting of such employees are faced with a difficult choice when their negotiations reach impasse. If the employer or the union rejects a fact finder’s recommendation the employer can unilaterally impose its last, best offer on the bargaining unit. If the employees are unwilling to work for such terms, their only option is to go on strike.
For safety forces and others who are prohibited from striking, disputes over the terms of a new contract are resolved through a procedure called “conciliation” which is just another name for binding arbitration.
One such group that is eligible for conciliation is deputy sheriffs. Customarily, when we think of a deputy sheriff we think of a uniformed officer who carries a gun and has arrest power. A recent court decision, however, has broadened the term.
The Benevolent Employees of the Hamilton County Sheriff is a union that represents various clerical and administrative employees working for the Hamilton County Sheriff. The union and the sheriff went to fact finding and the county voted to reject the fact finder’s recommendations. SERB issued an order directing the parties to conciliation.
The Sheriff objected, arguing that these employees were not eligible for conciliation and SERB withdrew its conciliation order. The union appealed SERB’s ruling to the Franklin County Court of Common Pleas.
The trial court looked to R.C. 311.04 which grants sheriffs the power to appoint deputies. The statute states, in part:
The sheriff may appoint, in writing, one or more deputies. At the time of
the appointment, the sheriff shall file the writing upon which the
appointment is made with the clerk of the court of common pleas, and
The clerk shall enter it upon the journal of the court.
The union produced copies of forms the employees had signed upon being hired indicating that they had been “appointed Deputy Sheriff (s)… and been duly sworn.” Based upon this the trial court concluded that unit members were “deputy sheriffs” and eligible for conciliation even though they did not carry guns or have arrest power. That decision was later affirmed by the Franklin County Court of Appeals.
Undoubtedly there are other county sheriffs who routinely “deputize” all or most employees. Those who do will be affected by this decision. This could even spur the general assembly to amend the collective bargaining law to clarify who is actually a deputy for conciliation purposes.
In Defense of Collective Bargaining
A team of OPBA attorneys recently completed a lengthy odyssey when the Ohio Supreme Court refused to accept for review the appeal of the City of Munroe Falls (The “City”) in the case captioned City of Munroe Falls v. State Employment Relations Board, et al., Case No. 13-0266 (2013).
The case began in the spring of 2010, when the City, for the first time, refused to bargain with the OPBA concerning a successor contract for a bargaining unit of Sergeants.
The City initially claimed it had no duty to bargain because the bargaining unit only contained one member and, thus, was not subject to the Collective Bargaining Act - - R.C. Chapter 4117, purportedly due to the fact that it could not “collectively” bargain with a unit containing only one member.
In response to the City’s refusal to bargain, the OPBA filed an Unfair Labor Practice Charge (the “Charge”) with the State Employment Relations Board (“SERB”), on or about September 10, 2010.
SERB investigated the OPBA’s Charge and on October 14, 2010, determined that there existed probable cause to believe that the City violated R.C. §§4117.11(A)(1) & (A)(5) by refusing to bargain a successor contract for the Sergeant’s bargaining unit.
As the case at SERB proceeded through the hearing process, the City’s theory of the case took an interesting turn. In addition to its more pedestrian arguments that single member bargaining units abated as a matter of law, the City began to broadly also assert that R.C. Chapter 4117 was unconstitutional, in that it allegedly violated Section 3, Article XVIII of the Ohio Constitution and that it was an improper delegation of legislative authority.
On or about July 12, 2011, SERB ruled in favor of the OPBA and ordered the City, inter alia, to bargain a successor contract, in good faith, with the OPBA for the Sergeant’s Bargaining Unit. In doing so, SERB ignored the City’s constitutional arguments.
The City timely appealed SERB’s ruling to the Summit County Court of Common Pleas and renewed all of its former arguments, including its claims that Chapter 4117 was unconstitutional.
On or about February 6, 2012, Judge Tammy O’Brien upheld the SERB decision in favor of the OPBA and, notably, ruled in favor of the constitutionality of Chapter 4117, by stating at p. 10 of her Order:
The Supreme Court of Ohio addressed constitutional arguments like those presented by Munroe Falls, in Rocky River v. State Emp. Relations Bd., 43, Ohio St.3d 1, 539 NE.2d 103 (1989). The Court held in Rocky River:
The Ohio Public Employees’ Collective Bargaining Act R.C. Chapter 4117 *** [is] constitutional as [it] falls with the General Assembly’s authority to enact employee welfare legislation pursuant to Section 3, Article II of the Ohio Constitution, Section 3, Article XVIII of the Ohio Constitution, home-rule provision, may not be interpreted to impair, limit or negate the Act. (Citations omitted). Rocky River has not been overruled and remains good law.
The City then appealed to the Summit County Court of Appeals.
On December 31, 2012, the Appeals Court affirmed the decision below, while stating, at pages 8-9 of its Judgment Entry:
Munroe Falls asserts in its fourth assignment of error that the lower court erred in concluding that R.C. Chapter 4117 does not violate the Ohio Constitution. We do not agree.
We note that Munroe Falls does not point to a particular section in R.C. Chapter 4117 that it believes is unconstitutional; instead, it broadly asserts the entire Chapter is unconstitutional. We are mindful that “[s]tatutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision.” (Internal quotations and citations omitted.) Nitchman v. Nationwide Mut. Fire Ins. Co., 146 Ohio App. 3d 315, 317 (9th Distr. 2001).
Essentially Munroe Falls asserts that R.C. Chapter 4117 violates Section 3, Article XVIII of the Ohio Constitution and is an improper delegation of legislative authority. . . .
Rocky River has not been overruled, and, thus, this Court is bound to apply the law as set forth by the Supreme Court of Ohio. As the Supreme Court has already determined that Chapter 4117 is constitutional and has not reversed its position on this issue, Munroe Falls’ argument concerning Section 3, Article XVIII of the Ohio Constitution is without merit. See id.
With respect to Munroe Falls’ assertion that R.C. Chapter 4117 represents an improper delegation of legislative authority, we are likewise not persuaded.
In the winter of 2013, the City attempted to appeal this case to the Ohio Supreme Court. As previously stated, the Ohio Supreme Court refused to accept jurisdiction of the case, by Entry dated May 8, 2013.
Thus, the foregoing three-year ordeal concluded with a significant victory for OPBA members and other public employees, as another challenge to the continued viability of the Collective Bargaining Act was completely rebuked.
 The City’s position was disingenuous, at best, given the fact that the unit had only contained one member since at least 2004 and the City had previously bargained a contract with the OPBA for the one person unit.
 Ironically, former Ohio Supreme Court Justice, Andy Douglas, the author of the Rocky River decision, guided and advised the team of OPBA attorneys working on the Munroe Falls case.
DNA Swab Normal Part of Booking
A ruling made on June 3, 2013, by the Supreme Court of the United States in MARYLAND v. KING might be of interest to some readers. The Court determined that it is lawful to take a DNA swab as a normal part of the booking process for a serious offense.
The case started with the arrest of Alonzo King in 2009 for first and second degree assault charges. Seems like some people didn’t like it when he showed up with a rifle and started bothering them. When being processed into the Wicomico County jail in Maryland, the Corrections Officer obtained a DNA sample with a cheek swab. In Maryland it is perfectly legal to swab those being booked for serious crimes. It is legal in all states to swab during a felony arrest.
When the sample was run through the Federal database, it matched a DNA sample obtained in a rape case from 2003 that was never solved. Armed with the DNA evidence, King was brought to trial on the rape charge.
King’s lawyer objected to the admission of the DNA evidence based upon the fourth Amendment. He claimed it was an unlawful search and challenged the legality of the search. The Judge in the Circuit Court found the search to be legal and the trial ended with his conviction. However, the Maryland Court of Appeals found the search violated King’s constitutional rights.
In their ruling, the majority found that the Fourth Amendment allows for reasonable searches when a suspect is detained and taken to a jail due to a serious offence, thus eliminating the need for a warrant. The check swab is similar to taking a picture or fingerprinting a prisoner. Much as pictures and fingerprinting have improved police work and the justice system in the past, DNA testing can and is vastly improving them now and into the future. Unlike pictures and fingerprinting, DNA evidence seems to be almost completely reliable.
The Court did place several limitations on the retrieval and use of DNA. For example, the retrieval of the DNA should not threaten the detainee’s safety. The method of extraction must minimize pain and shouldn’t require surgery. Until an individual is arraigned for a serious crime, their DNA can’t be added into any database. Furthermore, if the suspect isn’t found guilty their DNA must be eliminated from the system. The fact that a swab is so painless, quick and easy was important to their thinking these searches are reasonable.
On the topic of wage increases, there is an upward trend once again. Of course it couldn’t have gotten much lower. There have been way too many low and no wage increases over the last few years. Even those municipalities that weren’t hurt by the recession could get away with small increases. As the economy continues to slowly improve, wages should continue to increase.
Many of the Eastern Counties are seeing a lot of land being leased or sold for the right to drill wells. Thanks to the process called “Fracking”, some people are getting quite wealthy. Hopefully that wealth will be spread to higher wages as well!
Message from the Executive Director
The OPBA has been active in Columbus along with the recruitment of new departments. I and/or our Special Council Justice Andy Douglas have been attending Ohio Retirement Study Council, ORSC, meetings. The first meetings that were attended the legislative members of ORSC questioned the financial stability of the OP &F Fund. The new Executive Director, John Gallagher, of the OP & F fund and its actuary spoke stating the fund had the best returns, 14.9%, in 2012, of a majority of the funds. They also stated that the changes from pension reform have yet to be fully implemented so their concerns were basically premature. In the most recent meeting attended, the ORSC made proposals on the authority that had been granted by the recently enacted pension reform bills for the OP & F, SERS, STRS and HPRS funds. The OPBA will continue to monitor activity with the ORSC, pension systems and legislature.
I recently testified at a Joint Senate hearing concerning School Safety of the Public Safety and Education Committees chaired by Senator LaRose and Senator Lehner respectfully. This committee was formed prior to any legislation being proposed because the committee chairs felt it was necessary to get input from the respective stakeholders prior to any legislation being introduced. The joint committee was going to review the 4 days worth of testimony to determine the best course of action moving forward with any possible legislation. Two issues that the committee members were to look more closely at were ratio of school psychologists to students as well as school resource officers.
The OPBA has recently been involved in elections in Garfield Hts. and Shaker Hts. Police Departments. In Garfield Hts. the OPBA filed petitions for election to have the patrol officer’s switch from the local FOP lodge to the OPBA. I would like to welcome the Garfield Hts. Patrol Officers who voted 21 to 13 in favor of the OPBA. The petitions for election at Shaker Hts. PD were for the OPBA to become the exclusive representative for the patrol unit and supervisors unit over their current representative the local FOP lodge. I would also like to welcome the Shaker Hts. patrol unit which the OPBA won 26-17 and the Shaker Hts. supervisors unit which was won by 8-5 margin. The OPBA is now in the transition phase with both departments. I realize that the OPBA must now show through action to the aforementioned departments that the choice made was the correct one taking their memberships forward. I believe that the OPBA will prove to not only our supporters but every member that the change was correct. The OPBA has recently been contacted by 2 Sheriff Departments and another police department.
When I began my first term in January of 2012, I had stated that I truly believed that the OPBA provides unparalled representation and service to its membership. I believe it is because of that representation that we won the aforementioned elections. I personally became involved in those representational services the evening of March 17, 2013 with an officer involved shooting in Solon. I made contact with a staff attorney minutes after being notified of the incident, and upon arrival at the local hospital the involved officers were put in contact with the an attorney within the hour. It is this type of service that OPBA provides that sets us apart.
The OPBA has continued to move membership meetings around the State of Ohio. On March 7, 2013 our membership meeting was held in Columbus. John Gallagher, Executive Director, and Scott Huff of OP&F, Fund as well as Mr. Gordon Gatien, Government Relations officer from OPERS, attended our meeting. These representatives made presentations and answered questions from the members in attendance.
This is the second year that we have had a second family day in another area of the State. The OPBA wanted to provide our membership that is spread throughout the State the ability to participate in a family day without having to drive a prohibitive distance. This year our second event will be at the Dayton Dragons at Fifth Third Field, Dayton, Ohio.
An Update on GPS Tracking
By: Sherri Bevan Walsh
Law enforcement has benefited greatly from advances in technology over the last 20 years. Tracking defendants with cell phone tower triangulation, identifying organized criminals with information-sharing technology and using DNA databases are just a few examples. But these technological advances are fraught with numerous undecided legal challenges.
In 1996, the U.S. Supreme Court expanded warrantless searches to include an automobile exception. When law enforcement has probable cause to believe that a vehicle contains contraband, an officer may rely on exigent circumstances to search that vehicle.
GPS is an effective means of surveillance, but it raises issues concerning an individual’s right to privacy. In January 2012, the U.S. Supreme Court held in U.S. v. Jones that placing a GPS device on a suspect’s vehicle qualifies as a search under the Fourth Amendment. However, the Supreme Court declined to say whether that always requires a search warrant or if it could be done under the automobile exception.
Using the automobile exception is the most logical means of installing a GPS device without a warrant. However, courts are hesitant to use the automobile exception to include a warrantless GPS device because of its unlimited duration and scope.
The U.S. Eastern District of Pennsylvania addressed this issue twice last year. In both cases, it held that the rationale behind the automobile exception does not apply to a warrantless installation of a GPS tracker. Furthermore, the court ruled that probable cause that contraband was in a vehicle only gave rise to a search of that vehicle. The U.S. District Court of Delaware went so far as to rule that an individual can use another’s car with the same expectation of privacy the owner would have when it comes to a warrantless GPS device.
The fundamental theme in the courts is that a person has a constitutional right to be free from their activities being monitored unless a search warrant has been sufficiently executed. A person’s right to freedom of movement and rights under the Fourth Amendment to be free of unreasonable search and seizures has been determined to significantly outweigh the government’s interest as it relates to the use of a GPS tracking device.
Before an officer installs a GPS device on a vehicle, he or she should undoubtedly try to get a search warrant. Some defendants have attacked the probable cause contained in the search warrant, but courts are much more likely to deny challenges to the use of the GPS device when a search warrant has been granted.
Jones has changed the landscape for law enforcement and GPS tracking. While the Supreme Court has not detailed exactly what those changes are yet, the lower courts have given a clear indication that warrantless GPS tracking will be suppressed.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
The Doctrine of Double Jeopordy in Emloyee Discipline Situations
One of the primary functions of the OPBA is to provide representation to members who are facing possible or actual disciplinary action. Navigating the tangled web of employee discipline can be quite a difficult task. This is particularly true if the employer either ignores, or as is often the case, does not understand, some of the major legal principles involved in employee discipline. One of these concepts is the right to not be twice placed in jeopardy for the same employment offense. Members often feel that they are being penalized more than once for the same set of facts. Within the confines of labor law, sometimes they are being unjustly penalized more than once and sometimes they are not.
CRASH COURSE IN EMPLOYEE DISCIPLINE
Before analyzing just what this “double jeopardy” idea means, it is important to review some basics of employee discipline. All, or nearly all, collective bargaining agreements which cover OPBA members contain some sort of language which prohibits disciplinary action without “just cause.” Just cause is a legal term of art. One arbitrator explains the term as follows:
It is common to include the right to suspend and discharge for ‘just cause,’ ‘justifiable cause,’ ‘proper cause,’ ‘obvious cause,’ or quite commonly simply for ‘cause.’ There is no significant difference between these various phrases. These exclude discharge for mere whim or caprice. They are obviously, intended to include those things for which employees have traditionally been fired. They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently they include the decisions of courts and arbitrators. They represent a growing body of ‘common law’ that may be regarded either as the latest development of the law of ‘master and servant’ or, perhaps, more properly as part of a new body of common law of ‘Management and labor under collective bargaining agreements.’ They constitute the duties owed by employees to management and, in their correlative aspect, are part of the rights of management. They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like. Where they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform, non-discriminatory manner.
This arbitrator’s last sentence, translated into modern terms, means that the ideas of progressive discipline and the prohibition against disparate treatment in meting out disciplinary actions are actually included into the arbitral theory of “just cause.” While the words “progressive discipline” and “disparate treatment” may never appear in the four corners of a collective bargaining agreement, those requirements are implicit in the contractual requirement of just cause. These are concepts of fairness and reasonableness under a particular set of circumstances.
WHAT IS DOUBLE JEOPARDY?
As law enforcement personnel, the OPBA’s membership is familiar with the criminal law prohibition against “double jeopardy.” The United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Likewise, there is a longstanding labor law prohibition against placing an employee twice in jeopardy for the same employment offense.
Jeopardy attaches in a disciplinary setting when:
(1) The employer imposes discipline for a given offense;
(2) that discipline is either accepted by the employee or the original penalty is not accepted by the employee; AND
(3) the discipline is imposed with the understanding by the parties that it is a final disciplinary sanction.
Once these elements are met, the employer is prohibited from thereafter imposing an increased or additional punishment for the subject offense. The double jeopardy doctrine prohibits employers from attempting to impose multiple punishments for what is essentially a single act or set of acts. For example, one arbitrator held that the double jeopardy doctrine applied where the employer suspended an employee for 10 days while criminal charges were pending against him and then, when he was convicted, sought to discharge him.
The arbitral concept of “double jeopardy” has been explained by one arbitrator thusly:
The key to this arbitral [double jeopardy] doctrine is not the Constitution but rather fundamental fairness, as guaranteed by the contractual requirement of ‘just cause’ for discipline. Thus, when an employee has suffered a suspension for an offense it would be unfair…to fire him before he has committed a second offense.
Just as the requirements of progressive discipline and lack of disparate treatment are read into the just cause contractual requirement, so is the prohibition against double jeopardy. Once an employee has been disciplined and the parties understand that the employer’s action is the final disciplinary sanction, then the employee must be thereafter insulated from disciplinary action solely related to the offending act or acts.
Importantly, double jeopardy does not occur when an employer suspends an employee while conducting an investigation that ultimately leads to the employee’s discharge. Where an employer “suspends the employee, conducts its investigation, imposes what appears to be a ‘final’ punishment, and then imposes additional punishment, double jeopardy exists. Likewise, an employer cannot issue a disciplinary ‘warning’ and later, after deciding more serious punishment would have been preferable (because, for example, the employer fears a third party’s lawsuit related to the employee’s misconduct), impose a harsher punishment.”
Double jeopardy does not trigger when the discipline is imposed with the understanding that it may not be final. For example, an employee is not being subjected to jeopardy twice when he is notified via memorandum that further punishment may be meted out for the subject offense. Additionally, “an employee who was terminated for failing to pass a drug screen and then, after being reinstated under a settlement agreement, was bypassed for promotion for the same reason was not subjected to double jeopardy.”
HOW DOES DOUBLE JEOPARDY RELATE TO THE REQUIREMENT FOR PROGRESSIVE DISCIPLINE?
One may ask, is it not double jeopardy where an employee suffers an enhanced penalty for Offense 2 because of prior disciplinary action taken as a result of Offense 1? The answer is no. Just as it is entirely proper for a court to take a criminal defendant’s prior criminal record into consideration for purposes of sentencing, it is permissible for an employer or an arbitrator to take an employee’s prior disciplinary record into consideration with respect to the severity of a penalty.
An employer has a legitimate and legal right to consider an employee’s record of performance and any prior rule infractions when it is considering how to handle a pending performance issue or rule infraction. Prior discipline may certainly be considered in determining pending discipline, but the sanction related to the pending discipline may not be based solely on past violations for which discipline has already been imposed.
Just as an employee who has a long and good record with an employer would insist on raising his or her positive performance and lack of discipline as a mitigating factor, an employer can raise the opposite as an aggravating factor.
If you or another OPBA member ever feels that he or she is being subjected to multiple penalties for the same set of facts or circumstances, please contact your OPBA representative immediately in order to assess whether the employer is or is not complying with its requirements under the law.
 Elkouri & Elkouri, How Arbitration Works, 6th Ed., Alan Miles Ruben, Editor-In-Chief, American Bar Association Committee on ADR in Labor & Employment Law (2003), citing Worthington Corp., 24 LA 1, 6-7 (McGoldrick, Sutton & Tribble, 1955).
 U.S. Const., Am. V.
 Elkouri supra, at 982, citing Transit Mgmt. of Southeast La., 95 LA 74, 80-81 (Allen, Jr., 1990).
 Elkouri supra, at 981, citing United Int’l Investigative Serv., 114 LA 620, 626 (Maxwell, 2000), quoting U.S. Postal Serv., 87-2 ARB ¶18490, at 5952 (Nolan, 1987).
 Id at 981.
 Id. at 982.