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The Florida Bar Journal
April, 2018 Volume 92, No. 4
Focusing the Lens of Justice: The Implementation of Police Body Cameras Is a Management Right, Not a Mandatory Subject of Collective Bargaining

by Stephen A. Meck

Page 42


This article concerns police body cameras: what they are, why they are being used, who they impact, and what Florida police departments, their police officers, and unions, have to say about them. The article also reviews the long-awaited decision of the Florida Public Employee Relations Commission, which finally puts to rest the long-running debate between police unions and law enforcement agencies over whether the implementation of body camera programs is a right of management or the subject of mandatory collective bargaining.

The development and reasoning for implementing police body cameras (body cams) is quite clear. It is a technological advancement of devices currently used in standard police work, such as radios, cell phones, computers, social media devices, GPS, and Car Video Cams. They help provide standard public security by identifying suspects, collecting evidence, and detaining suspected law breakers. This technology is simply some of the usual equipment used in police work. There is not, and never has been, any question that police departments have an undeniable right to employ them for police work. Having them and requiring officers to use them is not negotiable. While they may once have been a novelty, they have become standards of public service.

On first impression, the body cam appears to be just a technological advancement for performing police work. Like other devices currently carried by officers, such as radios and Taser guns, they are easily carried and used. They are about the size of a small cigar and are battery operated. They can be clipped onto clothing or eye glasses. What makes them different? Why can’t management just require the officers to use them, like any of the other devices described above?

Sensitivity Over Police Body Cameras
Police officers are concerned about body cams because they can be used as strong evidence against the officers wearing them, not just the suspects who may also be recorded by them. Therefore, the question turns upon who is the intended subject of the camera: the suspects, bystanders, or the officers? Body cams provide significant evidence in questions and complaints about the appropriate use of physical force. In fact, while not the focus of this article, numerous articles about the pros and cons of body cams extensively address the positive application of body cams for assessing whether an officer was justified in the decision to use force and the degree in which he or she did.

However, body cam usage for collecting evidence against suspects (which is what patrol car cams are regularly used for) is merely alluded to as a minor benefit, or not even mentioned. Starkly stated, it is publicity generated by cable headline news that places video footage, such as from cell-phone cameras immediately and directly in the public mainstream. This includes alleged police beatings and shootings caught on tape, such as the 1991 videotaped beating of Rodney King by L.A.P.D. police and the shooting of a black teenager by a white police officer in Ferguson, Missouri, that prompted weeks of violent protest. The content of body cam videos can be explosive and quite damaging to the police officer.

Therefore, the focus of the propriety of management’s right to implement body cams can be evaluated by considering who is the subject of the video, so that it is viewed by officers as a perpetual invasion of their privacy that can be, or even designed to be, used against them in investigations about citizen complaints and accusations. This is comparable to an employer using hidden surveillance cameras to catch employees stealing the employer’s property. The National Labor Relations Board (NLRB) has held in the private sector that these hidden fixed cameras being placed in the workplace is a mandatory negotiable subject.1 The conclusions in these cases make sense, because they are used to set and control the employees’ working conditions, as opposed to providing entrepreneurial services or directing the enterprise. However, the use of the police body cam as evidence against officers places them directly in the crosshairs of a significant current issue involving alleged police violence, which has resulted in numerous violent riots that have generated profound expressions of public concern and political debate.

The Jacksonville Case Litigated at the Public Employees Relations Commission
This sets the stage for a legal debate in Florida public sector labor law that was recently litigated and finally resolved by the Florida Public Employees Relations Commission (PERC). The issue was whether implementation of body cams is a management right because it is a standard of service, or do they fundamentally affect the officer’s terms and conditions of employment? Put another way, is the purpose for body cams to catch criminal suspects or to monitor police officers? This establishes the division-line for the debate. The former sets a standard of public service and the latter is a term and condition of employment of the police officers. This was a matter of first impression in Florida until October 2017, when PERC issued Jacksonville Consolidated Lodge 5-30, FOP v. City of Jacksonville, 44 FPER ¶129 (Oct. 18, 2017).

I will first discuss the reasoning of the PERC decision in Jacksonville that the implementation of body cams is a management right under Florida law, and then address the position advanced in a 2016 Journal article, “Will Police Body Cameras Be a Mandatory Subject of Bargaining in Florida,”2 which proposed an opposing viewpoint.

The Jacksonville case began in February 2017, when the Fraternal Order of Police (FOP) filed an unfair labor practice charge against the city with PERC, alleging that the city refused to bargain over a program requiring police officers to wear body cameras. A hearing was held, and PERC Hearing Officer Gregg Morton issued a recommended order determining that, under Florida law, the decision to implement body cams is a management right, but that the impact of that decision on terms and conditions of employment is negotiable upon a proper request. The hearing officer concluded that FOP did not effectively request impact bargaining. The parties filed exceptions, and PERC issued a final order that essentially adopted the recommended order on the body cams issue.

PERC’s decision is based upon the recommended order, which provided a clarifying analysis of Florida’s unique law on mandatory subjects of collective bargaining. The recommended order began by contrasting F.S. §447.209,3 which addresses management rights, with the obligation to negotiate over wages, hours, and terms and conditions of employment set out in F.S. §447.309(1).4 The management rights statute gives employers the right to “set standards of services to be offered to the public.”

The hearing officer acknowledged that the dispute in the case was over the disagreement of the parties as to whether employing body cams is a standard of service or, instead, a term and condition of employment. He recommended that the initial decision to implement body cams involves a public employer setting the standards of service to be offered to the public and exercising control and discretion over its organization and operations. The hearing officer noted that this initial decision did not affect the officers’ terms and conditions of employment, but that it would have effects flowing from it that would have a substantial impact on their terms and conditions of employment. The hearing officer described these standards of service as increasing transparency, enhancing accountability, helping to define proper training, and enhancing professionalism. He noted that it will also identify criminal behavior and collect evidence.

Analysis of the Prior Bar Journal Article
In the 2016 Journal article, the author predicted that, in deciding the negotiability issue, which was a novel question when the article was published, PERC would rule that it is a mandatory subject of bargaining for two reasons. The first was the NLRB’s precedent is that hidden surveillance cameras are a mandatory subject of bargaining. The second was a prior en banc decision of the Third District Court of Appeal in City of Miami v. F.O.P., Miami Lodge 20 and Florida Public Employees Relations Commission, 571 So. 2d 1309 (Fla. 3d DCA 1989), aff’d sub nom, Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d 31 (Fla. 1992). The court ruled that a police officer random drug-testing program was the subject of mandatory collective bargaining absent express legislation, but that such testing was permissible and within the management prerogative, subject only to impact bargaining, when there is some evidence of drug involvement by specific officers.

The hearing officer in Jacksonville rejected the reasoning of the hidden surveillance cameras cases by pointing out that all of the private-sector cases involved private workplaces, whereas the officers in question in the Jacksonville case were public employees, for whom the city had a public responsibility and a statutory right to set standards of service.

The City of Miami decision discussed in the prior Journal article was not addressed by the hearing officer or the PERC. The Journal article argued the “ease and speed” in which the initial three-judge panel of the Third District Court affirmed a PERC ruling that drug testing was not a management right and was, thus, subject to mandatory bargaining, supported a similar PERC ruling on body cams. The Third District Court panel decision referred to in the article reasoned that public employees’ right to collectively bargain is a Florida constitutional right; it is comparable to that of employees in the private sector; and that the National Labor Relations Board has held that the issue of drug testing is negotiable.

The three-judge panel decision in the City of Miami (citations omitted) case stated:

“Mandatory collective bargaining of compulsory drug testing, as well as being required by Section 447.309, Florida Statutes, is also required by the right to work provision of the Florida Constitution. This provision — Article I, Section 6 — states: ‘Right to Work. — The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.’

“Construing this provision, the supreme court has consistently held that ‘with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.’ If, therefore, private employees have the right to collectively bargain about drug testing, public employees have that same right.

“Federal agencies and courts interpreting the National Labor Relations Act have concluded that the subject of drug testing in private industry must be submitted to collective bargaining. While the National Labor Relations Board — like the Florida courts — has yet to address this issue, its [g]eneral [c]ounsel has ruled that drug testing of private employees is a subject of mandatory bargaining. Likewise, in cases decided under the Railway Labor Act (regulating labor relations in the railway and airline industries) courts have unanimously agreed that drug testing is a subject of mandatory bargaining.

“Thus, because Article I, Section 6, of the Florida Constitution grants public employees the same bargaining rights as private employees, and because private employees have the right to bargain over compulsory tests for drugs, it follows that public employees in Florida have a constitutional right to bargain over drug testing.”

The largest weakness of the article’s reasoning is that it did not pay the requisite attention to the subsequent en banc opinion adopting the more nuanced approach ultimately adopted by the Florida Supreme Court. The reasoning of the Third District’s en banc decision is stated:

“Where, as here, we are dealing with a subject which is arguably both a managerial prerogative and a “term or condition of employment,” we hold that a balancing test should apply to determine which characteristic predominates.

***
“Thus, in order to determine whether the subject of drug testing is mandatory or permissive, we must balance the interests of the [c]ity and the public against the interests of the employee police officers. As stated by Justice Blackmun in First National Maintenance Corp., 452 U.S. at 678, 101 S. Ct. at 2580, 69 L. Ed. 2d at 330, the rationale behind the concept of mandatory collective bargaining is to ensure “decisions that are better for both management and labor and for society as a whole.” See also Pennsylvania Labor Relations Board, 461 Pa. at 337 A.2d at 267 (public interest in collective bargaining is the “effective and efficient operation of public employment”). Will submitting the subject of drug testing to the mandatory bargaining process result in decisions which are ultimately better for society as a whole, and which will result in the more effective and efficient operation of the police force? We think not.

“It must be stressed that this case is not simply one which involves the average “public employee.” Rather, we are dealing with a specific category of public employee — that of police officer — which is entrusted with the public safety and empowered with enforcing the law. Because police officers are responsible for the lives and safety of the citizenry, they occupy a position in which the public has a right to have absolute trust. The credibility of police officers is thus central to the operation of the police force as an enterprise. In the case of Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB, 204 U.S. App. D.C. 278, 636 F.2d 550, 560 (D.C. Cir. 1980), the court held that a newspaper’s unilateral adoption of certain ethics code regulations fell within the newspaper employer’s managerial prerogative and thus was not a mandatory subject of collective bargaining. The court premised its finding upon the fact that credibility and editorial integrity were matters at the “core of publishing control” and “central to [the newspaper’s] ultimate product and to the conduct of the enterprise.” Newspaper Guild of Greater Philadelphia, 636 F.2d at 560 (footnote omitted). The court stated that ‘In order to preserve these qualities, a news publication must be free to establish without interference, reasonable rules designed to prevent its employees from engaging in activities which may directly compromise their standing as responsible journalists and that of the publication for which they work as a medium of integrity.’ Certainly it is unquestionable that credibility and integrity are fundamental to the basic operation of a police force, and that the analysis utilized in Newspaper Guild is even more compelling under circumstances involving public employees entrusted with the public safety as compared to private employees working for a newspaper.

***

“The safety of the public depends upon the proper discharge of the police officers’ duties. Those duties include the need to make split second decisions regarding life and death. Such decisions cannot be properly made if an officer is under the influence of a controlled substance which can cause ‘severe long and short term physical, mental and psychological effects’ including ‘impairment of physical function, auditory and visual perception changes.’
***
“Taking all these factors into consideration, we find that the interests of the [c]ity and the public in ensuring the right to a drug-free police force outweigh the interests of the FOP in negotiation and, accordingly, hold that drug testing of police officers is a critical managerial decision which fundamentally impacts upon the functioning of the police force and thus is excluded from the range of subjects which must be mandatorily bargained under Section 447.309, Florida Statutes (1983).”5

Of great significance to the body cam issue considered in the Jacksonville case is the following language of the Florida Supreme Court when it affirmed the en banc opinion:

“The subject of drug testing has both the characteristics of being within the management prerogative and being a term and condition of employment. We agree with the district court’s analysis that, when this occurs, a balancing test must be applied. We note that the issue in this case is narrow because it involves public safety and sworn police officers, who carry firearms and exercise considerable discretion in enforcing the law….”6

Considering the comparable issues and the application of each of them to police officers, the balancing test required by the Florida Supreme Court in City of Miami certainly supports PERC’s decision on body cams in the Jacksonville case. In fact, individual drug testing appears to be more intrusive of the police officers’ expectation of privacy than requiring them to have and use body cams as assigned equipment. After all, employee drug testing has constitutional implications. Therefore, PERC’s decision in Jacksonville is also correct under the City of Miami appellate decisions.

Conclusion
In the final analysis, the answer that you may personally prefer depends upon what you consider to be the actual question. Are body cams to be used for police enforcement or enforcement of the police? The decision to implement the body cams is appropriately characterized as a policy decision setting the standards of service offered to the public when you consider the evidence provided by the employer in Jacksonville, increasing transparency, accountability, identifying training opportunities, and providing procedural justice.

Aside from this implementation of the body cams, the prior article’s author does correctly observe that the threatening impact to officers is that, “the men and women to whose bodies the cameras will actually be attached know well that whatever the stated policy reasons for the cameras, management, and citizens will demand that these records of their citizen contacts be used to assess their job performance toward that end, to provide evidence for their discipline and criminal prosecutions.”

The PERC analysis gives the employer the unilateral right to implement body cams, but collective bargaining must be conducted about the impacts of that decision, such as training, the use of videos for evaluations and discipline, and when and how they can be used in subsequent legal action taken against the officer. Under PERC’s ruling, the unions representing law enforcement officers must demand negotiations on specified negotiable impacts when the employer decides to implement police officer body cameras.


1 See Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 F. 3d 36, 38 (D.C. Cir. 2005); National Steel Corp. v. NLRB, 324 F. 3d 928 (7th Cir. 2003); Colgate-Palmolive Co. v. Local 15, International Chemical Workers Union, AFL-CIO, 323 NLRB 515 (1997).

2 Gary E. Lippman, Will Police Body Cameras be a Mandatory Subject of Bargaining in Florida, 90 Fla. Bar. J. 57 (Dec. 2016).

3 Fla. Stat. §447.209 (“Public employer’s rights. It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the public employer to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.”.

4 Fla. Stat. §447.309 (“Collective Bargaining; approval or rejection. (1) After an employee organization has been certified pursuant to the provisions of this part, the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit.”).

5 City of Miami, 571 So. 2d at 1323-26.

6 Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d at 34.

Stephen A. Meck is of counsel for Carson & Adkins in Tallahassee, representing management in the areas of labor and employment law. He was previously general counsel for the Public Employees Relations Commission for more than 20 years. Meck is a past chair of the Labor and Employment Law Section of The Florida Bar, in which he was given a lifetime achievement award. He is a fellow of College of Labor and Employment Lawyers and past president of the Association of Labor Relations Agencies. He thanks J. Trevor Carson, a law student at Nova Southeastern University College of Law, for his invaluable assistance in preparing this article.

This column is submitted on behalf of the Labor and Employment Law Section, Zascha Blanco Abbott, chair, and Robert Eschenfelder, editor.

[Revised: 03-27-2018]