Max Rieker, Esq.
On April 29, 2014, the United States Supreme Court heard oral arguments in two cases involving warrantless searches of arrestees’ cellular phones. For the most part, Fourth Amendment review cases by the Supreme Court do not get much attention. Members of news media are far more interested in hot-button social issues than the minutiae of search and seizure litigation. However, the cases of United States. v. Wurie (13-212) and Riley v. California (13-132) are of such import that every cell-phone carrying American should take notice of their outcome. Law enforcement officers should pay particular attention as they will be bound by these Supreme Court decisions which are expected to be released in June.
When most practicing lawyers and current law enforcement professionals were trained, the warrantless search and seizure analyses were largely centered around the concepts of “stop-and-frisk,” “vehicle inventory searches,” the “Plain View Doctrine,” consent searches, the “emergency circumstance exception,” “searches incident to a lawful arrest,” and the like. Since that time, technology has advanced both in the area of potential law enforcement capabilities and in personal electronic device capability, both of which have greatly complicated the warrantless search equation for all involved.
For instance the decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001), expressly prohibited law enforcement from using thermal imaging technology aimed at a private home from a public street without a lawful warrant to do so. In Kyllo, the Department of the Interior used a thermal imaging device to detect that a suspect was using high-intensity heat lamps to perpetuate his marijuana growing operation. Justice Scalia delivered the holding of the split Court,
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.
When Kyllo was released, 53% of American adults owned a cellular phone. These devices tended to be very basic in nature. In 2014, 90% of all American adults own a cellular phone. Of these phones, 58% of them are sophisticated “smartphones” which are essentially hand-held computer. These devices have the ability to receive, store, and transmit fantastic amounts of data. The public uses these devices to advance any number of business endeavors, including crime.
The basic question pending before the Court is whether the government must obtain a warrant to search data on the cell phone of a person under arrest. This is a question which must balance the legitimate concerns of law enforcement against the private interest of one’s reasonable expectation of privacy. Where does one interest end and the other interest begin with respect to the information contained on an arrestee’s cell phone? Should a cell phone, as a receptacle of information, be treated any differently than a common wallet, purse, brief case, or clothing pocket; or because of its nature as device which often interacts with every aspect of a person’s life, are its contents off-limits to a warrantless search? The Court must also be cognizant that its decision on cell phones will carry far-reaching implications with warrantless searches of other electronic devices.
In the case of Riley v. California, college student David Riley was arrested in San Diego on a traffic violation. He was driving with an expired registration and with a suspended license. During the vehicle inventory search, he was found to have hidden loaded firearms under the hood of his car. Arresting officers searched the contents of his smartphone (pictures, videos, text messages, contacts, etc.). This data led to the realization that he was part of an organized crime syndicate and it was discovered that Riley was connected with a prior drive-by shooting. He was convicted in state court on various offenses and sentenced to 15 years imprisonment.
In the companion case, Brima Wurie was arrested in Boston for selling crack cocaine. When questioned, he gave officers a false home address. Through searching Wurie’s flip phone, officers were able to determine his correct home address and were able to obtain a search warrant. When his home was searched, more drugs were discovered in addition to weapons and ammunition. Wurie was convicted in federal court and sentenced to 22 years imprisonment.
In neither case was a warrant sought to search the arrestee’s phone. Riley’s conviction was upheld. Wurie’s was overturned in a divided decision by a federal Court of Appeals on the basis of the cell phone search. The Supreme Court accepted both cases to resolve the conflicting judicial interpretations of the Fourth Amendment.
During oral argument, the justices seemed to be divided on how to reconcile the primary issues at play. Responding to Riley’s attorney who argued in favor of limiting police authority, Justice Kennedy pointed out that criminals too “are more dangerous, more sophisticated, more elusive with cell phone” than they previously have been. Conversely, Justice Scalia opined that the idea of allowing law enforcement officers to search a cell phone without a warrant after a seat belt violation is “absurd.”
As a practical matter, what observers of this important issue wonder is whether the Court will create a bright-line rule that cell phone content is off-limits to warrantless search; whether the Court will create a bright-line rule that says the ability for a law enforcement officer to search cell phone content is just as permissive as the ability to search the contents of an arrestee’s wallet; or whether the Court will craft a rule somewhere between these two extremes.
Some justices appear to favor a complete prohibition of such phone searches. Some seem to favor permitting nearly unfettered access to law enforcement searches. In light of his questions during oral arguments, it appears that Chief Justice Roberts would be inclined to create a new rule which would permit a warrantless search incident to arrest if the potential content of the device is somehow relevant to the purpose of the original arrest. It will be interesting to see whether he can persuade a majority of his colleagues toward that position. If Chief Justice Roberts’ apparent inclination comes to pass, it may be the fundamentally correct Fourth Amendment analysis, but would undoubtedly complicate an already complex issue.
The authors of the Fourth Amendment could not have possibly contemplated the concept of an iPhone when drafting the Bill of Rights, but they certainly understood expectations of personal privacy and the need for government to thwart crime. The centuries-old debate moves forward into a new uncharted era.
 Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001)
 Pew Research Center, The Web at 25 in the U.S. (Released February 27, 2014), citing Internet Project Surveys, 2000-2014 (http://www.pewinternet.org/files/2014/02/PIP_25th-anniversary-of-the-Web_022714_pdf.pdf)
 The first basic Blackberry model was released in 1999, but did not achieve wide-spread circulation for many years. The first iPhone was released in 2007.
 Riley v. California, 134 S. Ct. 999, 187 L. Ed. 2d 847 (U.S. 2014).
 United States v. Wurie, 728 F.3d I (1st Cir. 2013).
 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf at 26. Another issue to consider is law enforcement’s ability to retain, record, or otherwise preserve whatever evidence may be contained on a smartphone. Today, phones can be remotely locked, wiped clean of content, or otherwise rendered useless. Some savvy law enforcement agencies have taken to using Faraday Bags, which prohibit remote access to the electronic device placed inside the protective bag. Many Faraday Bags have windows so that content may be visually accessed without compromising the security of the device.
 Id at 43.
 Interestingly, the California legislature passed a bill (Senate Bill 914) in 2011 which would have required police to obtain a search warrant before searching content of any portable electronic device. Governor Jerry Brown vetoed the bill and deferred to the courts as the best avenue to resolve case-specific issues related to search and seizure.
Contracts govern many relationships in our lives. Our relationships with banks, with businesses, with cellular phone service providers, with utility companies, and with each other are often based on contracts. We rely on the sanctity of contract performance to insure the good order of society. The Roman Law maxim pacta sunt servanda (agreements are to be kept) reflects this characteristic in human nature. The concept of an enforceable contractual relationship is particularly important for those public employees whose employment relationship is governed by a labor contract.
WHAT IS A CONTRACT
Before delving into the intricacies of interpreting labor contracts, one should understand what a contract is, as a legal term of art. On its most basic level, a contract is formed when:
1) One party to that potential contract makes an offer;
2) The other party accepts that offer; and
3) There exists “consideration,” or a bargained for exchange of value related to the underlying offer and acceptance.
One court deftly described the peculiar nature of what a contract actually is:
Unfortunately, contracts, like most of the basic terms constituting the intellectual tools of law, is conventionally defined in a circular fashion. By the most common definition, a contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law recognizes as a duty. This amounts to saying that a contract is a legally enforceable promise. But a promise is legally enforceable only if it is a contract. Thus nothing less than the whole body of applicable precedents suffices to define the term ‘contract.’
HOW TO INTERPRET COLLECTIVE BARGAINING AGREEMENTS
A collective labor contract or collective bargaining agreement (“CBA”) is a contract vehicle, born out of statute, which provides an individual with greater bargaining power than if he or she were to bargain with the employer alone. Since these CBA’s govern the employment relationship between an employer and perhaps dozens or hundreds of its employees, it is important to take great care in making the final contract product as clear and unambiguous as possible.
However, we all know that, as much as the parties may strive to eliminate ambiguity, there is always more than one way to read a given section in a CBA. “The language of mathematics is precise. The English language is not.” It is entirely possible that three experienced, respected labor arbitrators could read the same CBA section and render three different results.
So how does one know what the correct, legally enforceable interpretation of a particular CBA provision is? Unfortunately, there is no mathematically precise way of knowing. Disputes often occur because the parties to a CBA have legitimate differences of interpretation. While one cannot predict with certainty the outcome of a dispute of contract interpretation prior to litigation, it is helpful to understand some concepts and theories which arbitrators use as factors in their decision making process.
- A. THE OBJECTIVE THEORY
The objective theory of contract interpretation holds that the meaning of an ambiguous contract term is that which would be attached by a reasonably intelligent person who is acquainted with the operative usages, and knows the circumstances prior to and contemporaneous with the making of the contract.
The legendary judge and judicial philosopher Learned Hand captured the objective theory of contract interpretation in Hotchkiss v. National City Bank, 200 F. 287 (S.D.N.Y. 1911):
A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent.
In other words, under the objective theory, a judge or arbitrator would essentially insert the intent of the parties based on the usual and customary uses of the words contained within the contract itself. The parties’ own meaning and intent is not relevant; rather, the words are enforced in accordance with the way in which an ordinary reasonable person would understand and enforce them.
- B. TOTALITY OF THE CONTRACT
The American Law Institute’s influential legal treatise Restatement (Second) of Contracts offers us further guidance as to how contract language is to be read and interpreted in context.
§ 202. Rules in Aid of Interpretation
(1) Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.
(2) A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.
Essentially, adherents to this Restatement view of contract interpretation would read a contract as a whole. Conflicting provisions within the same document must be reconciled and respective contract provisions must be weighed appropriately.
For example, a CBA has one provision which requires shift bidding by seniority. That same CBA has another provision which infers that it is a management right to determine when, or even if, that shift bidding process ever takes place. Under the Restatement view, those incompatible provisions must be reconciled in light of the totality of the circumstances. The union’s position would be that it is incongruous to believe that the parties intended to include shift bidding by seniority language in the CBA, yet allowed for a mechanism which would prevent the implementation of that shift bidding process.
- C. EXTRINSIC EVIDENCE TO CLARIFY THE MEANING
In the realm of labor arbitration, parties often raise or attempt to raise evidence as to the intent of the parties when litigating a contract interpretation case. This extrinsic evidence is that which is not expressly contained within the “four corners” of the CBA, but which may help a neutral arbitrator understand why the CBA says what it says.
Parties may wish to cite the bargaining history of the parties as evidence. In such an instance, first-hand participants in the bargaining process would be necessary witnesses to advance a party’s interpretation of the bargaining process and that which was born of it. The contemporaneous notes or minutes of a past bargaining session might also prove valuable. Keep in mind that the parties may have discussed the disputed language at length, but made a conscious decision not to alter it in an effort to secure agreement on a total agreement. Often, sources of annoyance and discord between the parties will ultimately be glossed over at the bargaining table in favor of dealing with the greater issues of compensation and health insurance.
A party may also argue that a past practice controls a situation. Past practice is also a legal term of art. In order to be considered an enforceable past practice, “a practice must be perfectly clear and unequivocal, consistently followed with frequent repetition over a long period of time so that it is inferable that both parties had accepted the practice as part of their collective bargaining agreement.” It may very well be that, by virtue of a clearly-established past practice, the parties themselves understood a contract provision in a certain way. Thus, an arbitrator should enforce that long-held understanding.
Ultimately, as the old saying goes, there is more than one way to skin a cat. There is more than one way to interpret a contract. The best way to insure a lack of ambiguity is to be clear and precise during the process of contract formation, if that is possible under the bargaining circumstances. If you have questions of contract interpretation, the first step is consulting with your OPBA representative to help assess the situation.
 Restatement (Second) of Contracts (1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (3) The performance may consist of (a) an act other than a promise, (b) a forebearance, or (c) the creation, modification, or destruction of a legal relation.
 Loevinger, J. in Baeh v. Penn-O-Tex Oil Corporation, 258 Minn. 533, 537-39, 104 N.W.2d 661, 664-66 (1960).
 Elkouri & Elkouri, “How Arbitration Works,” 6th ed., (Alan Miles Ruben, Editor-In-Chief, 2003) at 441.
 Restatement (Second) of Contracts § 202 (1981).
 Elkouri, supra, at 608-609.
Last Updated (Saturday, 14 December 2013 17:03)
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.
Last Updated (Thursday, 13 June 2013 20:16)
As students, we all learned about the rights guaranteed by the First Amendment of the United States Constitution. Everyone remembers the subject matter of the first four rights: religion, speech, press, and assembly. The fifth right guaranteed by the Constitution is the oft times forgotten one, to “petition the Government for a redress of grievances.” As a public sector employee covered by a collective bargaining agreement, your ability to seek “redress of grievances” does not flow from the Federal Constitution, rather it is an animal of contract law which is governed by the laws of the State of Ohio. However, the concept is the same. The Founding Fathers implemented the notion of citizens being able to legally check the actions of the Government when it oversteps its prescribed bounds. Likewise, your collective bargaining agreement grants the ability to check the actions (or inactions) of your employer when it runs afoul of the agreed-upon labor contract.
An OPBA member has a dispute with his or her employer. That member wants to grieve the issue. That member wants to arbitrate the issue and generally be made whole. This is an understandable and frequent reaction to the day-to-day employment disputes that affect the OPBA membership. Often, the member has a legitimate argument for why he or she should be entitled to some sort of remedy. At the very least he wants to have the ability to “petition” for the redress of the alleged grievance. Sometime, that argument and ability is not so clear cut. Experienced OPBA Directors and representatives know that the first level of inquiry in any dispute with the employer is to determine whether something is actually a grievance. A grievance is typically defined by the collective bargaining agreement under which the parties operate. A grievance is essentially a breach of that labor contract. There is a saying that every act of unfairness in the workplace is not necessarily an unfair labor practice; at least not an unfair labor practice charge that the State Employment Relations Board would be willing to take action upon. Likewise, every dispute is not necessarily a grievance. Quite often, a member will go to his OPBA representative alleging that a supervisor has treated him unfairly, or that a supervisor makes snide remarks, or that a supervisor is otherwise offensive. The problem with many of these types of disputes is that collective bargaining agreements rarely contain any language which would be actionable to address such negative treatment. Quite simply, it is difficult, if not impossible to succeed in obtaining contract language which would address the personality defects and egotistical tendencies of these supervisors at issue.
Substantive Challenge to Arbitrability
While we sometimes see grievances alleging violations of the Family and Medical Leave Act or violations of the Fair Labor Standards Act, those allegations may not be grievable because they may not have anything to do with what is contained within the four corners of the particular collective bargaining agreement at issue. In order for a dispute to be substantively arbitrable, the parties (i.e., the employer and the union) must have agreed at some time in the past to arbitrate it through the terms of the collective bargaining agreement. Binding contractual arbitration exists because the parties have either agreed to its existence or a conciliator has imposed it in some previous conciliation award. In AT&T Technologies v. Communications Workers, the Supreme Court held:
The first principle gleaned from the [Steelworkers] Trilogy [of cases] is that ‘arbitration is a matter of contract and a party cannot be required to submit to arbitrate any dispute which he has not agreed so to submit.’ (citation omitted) This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration….
Unless the parties, through the existing contract language, agreed to submit a dispute to binding arbitration, there is a chance that it is in fact, not arbitrable. If certain subject matter is not specifically referred to or dealt with in the labor contract, then the employer may attempt to refuse to arbitrate and could be justified in doing so.
Who Decides What Is Substantively “Arbitrable?”
Generally speaking, it should be the arbitrator who decides what is within the jurisdiction of the arbitration provisions of a collective bargaining agreement. Unfortunately, some employers take it upon themselves to “determine” that a matter is not arbitrable, thus forcing the union to file a law suit to compel the employer to arbitrate. As a practical matter, these procedures are particularly prevalent when dealing with employers who are difficult in the first place; i.e., those employers who are offended by the mere concept of having to do business with their employees in a collective manner.
Luckily, substantial amounts of case law exist which place the question of arbitrability squarely in the hands of the arbitrator when there is mention of the subject matter in the collective bargaining agreement. In Steelworkers v. American Manufacturing Co., the U.S. Supreme Court stated:
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.
The Court continued:
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic value of which those who are not a part of the plant environment may be quite unaware.
When there is not language in the collective bargaining agreement related to a particular matter in dispute, the parties may be forced to litigate the subject matter arbitrability in court. A court may determine that a grievance is appropriate for arbitration, or a court may determine that the matter in dispute has nothing whatsoever to do with the terms of the collective bargaining agreement and may decline to order an arbitration hearing.
Procedural Challenge to Arbitrability
Aside from the subject matter challenge to arbitrability, an employer may also raise the idea that a matter is not procedurally able to be arbitrated. These challenges may include failure to timely raise or process a dispute. There may also be an allegation that a matter is not ripe to be arbitrated, meaning that no harm has occurred, even if there may be harm in the future. The essence of a procedural challenge is to determine whether the rules of the road have been followed. If they have, then the matter is arbitrable, if they have not, then the matter may not be subject to arbitration.
Unlike substantive challenges which sometimes require the intervention of a court to determine whether a dispute should be arbitrated, procedural challenges are generally left to the arbitrator and only the arbitrator to decide. A work published under the authority of the American Bar Association’s Section of Labor and Employment Law explains:
In respect to the determination of procedural arbitrability, the Supreme Court has ruled that questions of procedural arbitrability are for arbitrators to decide and not for the courts. When a court has determined that the subject matter of a dispute is arbitrable (substantive arbitrability), the arbitrator is to decide all procedural questions that grow out of the dispute and bear on its final disposition.
There is good reason for this principle. First, having an arbitrator decide whether a grievance is procedurally arbitrable saves considerable time and expense as compared to the court system making that determination. Second, arbitrators can be expected to exercise the type of industrial relations experience that the parties contemplated when they provided for arbitration in the first place. The ABA’s publication continued:
An American Bar Association committee has stated that ‘the function of the arbitrator to decide whether or not an allegation of nonarbitrability is sound could be compared to that of a trial judge who is asked to dismiss a complaint on motion for a directed verdict or for failure to state a cause of action. This analogy indicates that a preliminary decision relating to arbitrability by the arbitrator is an inherent part of his duty.’ That arbitrators are capable of self-restraint is evidenced by the committee’s conclusion, based on examination of many awards, that ‘arbitrators generally are well aware of the limitations of their authority and scrupulously try to avoid any transgression of those limitations.’
What Does All Of This Mean?
Overcoming both a subject matter challenge and a procedural challenge to arbitration gets one’s foot in the door to allow for a determination on the merits of the case. Most arbitration matters are not challenged in the manner described in this article, but some are. It is important for the OPBA’s membership to understand that getting from the point of dispute into the arbitrator’s hearing room may not be a given and it may not necessarily be a smooth ride. As with any dispute or grievance, first check with your OPBA Director and your OPBA staff representative to help assess the best way to handle the matter.
Last Updated (Saturday, 15 December 2012 13:12)
Thomas Jefferson wrote that “Information is the currency of democracy.” In the world of law enforcement labor organizations, information may, indeed, be currency. Information may be the difference between a 1.5% pay raise and a 2.5% pay raise. It may mean the difference between a union member being terminated or having his job restored by an arbitrator.
Imagine buying car. As the potential purchaser, you would love to know the true manufacturing and overhead cost of the car, so that you could negotiate as close to that number as possible, thus putting yourself in the best position. Understandably, the salesperson does not want you to know the accurate numbers or the dealership’s true bottom line.
Likewise, in the field of public sector labor law, we sometimes find that management does not necessarily want to advertise its true financial picture. The management negotiator may state or testify that a governmental entity’s General Fund balance has decreased sharply since the financial collapse of 2008, but that negotiator may go out of his or her way not to disclose that monies have since been strategically siphoned off and hidden in a capital fund or a special project fund. Unscrupulous finance department personnel seem to have a knack for “hiding” money when it comes time for collective bargaining.
Public sector labor unions have always had many challenges with respect to getting business done on behalf of their members. We are faced with unreasonably tight-fisted management negotiators and obstructionist bureaucrats at every turn. Not the least of our challenges is the ability to obtain timely, relevant, and accurate information, especially from those against whom we bargain and litigate.
We need good, accurate information when collectively bargaining, when handling disciplinary matters, when processing grievances, and when litigating unfair labor practice charges. So, how does one obtain such information from one’s opponent in these matters? One answer is through properly made public records requests. In practice, a bargaining unit member or a union advocate making such a request must be able to effectively navigate Ohio’s sometimes tricky Sunshine Laws so as to obtain that information which will actually make a difference.
This article seeks to provide some guidance on how to properly make a public records request. Before making a public records request, the requester may wish to become familiar with Ohio Revised Code Chapter 149, under which most public records requests in Ohio are made. Additionally, the requester should be armed with the latest edition of the Ohio’s Attorney General’s “Ohio Sunshine Laws – An Open Government Resource Manual,” which is commonly referred to as the “Yellow Book.” The 2012 version of this comprehensive guide can be found at www.ohioattorneygeneral.gov/YellowBook.
One threshold issue related to making a public records request is whether the entity whose records are being sought is actually a “public office” within the meaning of R.C. 149.011(A), thus making it subject to public records requests. Obvious public offices are cities, counties, townships, and villages. Interestingly, any private entity that is the “functional equivalent” of a government entity is also properly subject to a records request.
Once the requester establishes that the requestee is, in fact, a public office or functional equivalent, the requester needs to analyze whether the information sought is actually a “public record” within the meaning of R.C. 149.011(G). A public record is:
1) That which is stored on a fixed medium (i.e., tapes, e-mails, photos, film, video, paper, etc.), AND
2) Is created or received by or has come under the jurisdiction of a public office, AND
3) The record relates to what that public office does (i.e., the organization, functions, policies, decisions, procedures, operations, or other activities of the office).
Each and every one of these elements must be met in order for an item to be subject to a public records request. Here are some practical examples of items which are not public records:
1) An e-mail sent or received from a public sector e-mail account asking a coworker to go to lunch. Note that in order for an e-mail to be a public record, it must relate to what a public office does.
2) A record not yet in existence. If a requester asks a City to create a document or record that does not already exist, the City has no obligation to create a record and release that information.
3) A record that once existed, but has been lawfully disposed of in accordance with a public employer’s approved records retention policy. If a public office does not possess a record, then it has no obligation to produce it upon request.
4) Notes taken by a member of a public office, if those notes are kept as personal papers (not official records), are kept for the employee’s own convenience, and other employees did not have access to the notes.
There are some specific statutory exceptions to public records requests. Examples include healthcare provider-patient records (a specific example of this where a County Jail is actually a health care provider for inmates). Student records are another example. More importantly for law enforcement personnel is the statutory exemption for the residential and family information of peace officers, parole officers, probation officers, bailiffs, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, youth services employees, firefighters, EMT’s, and BCI&I investigators. Likewise, Social Security numbers and direct deposit bank account information is statutorily protected from public records requests.
The final exception to the Public Records Act that will be discussed in this article is the Confidential Law Enforcement Investigatory Record. A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce law. That misconduct must be criminal, civil, or administrative in nature, but does not include an investigation exclusively concerning internal personnel discipline. If internal personnel discipline is a potential outcome, in addition to other criminal, civil, or administrative penalties which are also potential outcomes, then the CLEIR remains a non-public record. However, if the law enforcement employer states that an investigation is exclusively concerning internal personnel discipline, then recorded material concerning the investigation is properly subject to a public records request. If the release of a CLEIR, would reveal the name of an uncharged suspect, the name of a confidential source, put someone’s physical safety at risk, or reveal investigatory techniques or procedures, then the CLEIR may not be subject to a records request.
In terms of format, there is no special way of making a public records request. Any “person” can make a records request. A request may be written or verbal. The requester’s motivation for the request is not relevant, nor is the identity of the requester. The requester must make the request specific enough so that the public office can fulfill the request, if it is possible to fulfill, and must indicate a mechanism for how to receive the information that he or she has requested. Otherwise, there are no “magic words” necessary to make a lawful public records request. The public office cannot require the requester to put the request in writing or identify himself or herself.
The tips discussed here are merely a starting point to a large body of law related to public records and open government. Should you have any questions on the issue, please do not hesitate to contact your OPBA Attorney or Business Agent for further guidance.