Monday, November 12, 2018

Appellate Court Holds San Francisco Police Department Does Not Have to Meet and Confer Over Restrictive Force Policy

The First District Court of Appeal denied the San Francisco Police Officers' Association's petition to compel arbitration of the POA's grievance challenging the City’s refusal to further meet and confer before adopting and implementing a revised use of force policy.  The appellate court held such policies to be a fundamental managerial and policy decision and held the even the implementation of the policy is not subject to negotiation.  The court did note that no pre-implementation effects bargaining issues existed because the parties had already negotiated over and resolved issues pertaining to training and discipline. 

The San Francisco dispute arose in 2015 when the city tried to change its policies on arrests and shootings.  Although the city agreed to meet with the union, the union objected to several proposed changes.  Specifically the union disagreed with the city’s decision to outlaw “carotid holds” (neck holds) and shooting at moving cars.

The California Meyers-Milias-Brown Act (MMBA) requires public employers to negotiate before making changes that impact wages, hours, and working conditions of employees.  The MMBA seeks to promote problem-solving between employees and employers.  When the City decided to unilaterally implement its revised force policy, the POA filed a grievance to enforce its bargaining rights.  The grievance raise 3 issues: (1) did the City have a contractual obligation to negotiate any aspect of the use of force policy; (2) if so, did that obligation extend to negotiating about the elimination of the carotid restraint and prohibition on shooting at a moving vehicle; and (3) if so, did the City fail to negotiate in good faith by its refusal to reduce to writing agreements it made during negotiations regarding these two issues.

Relying on the 40 year old San Jose decision, the court held use of force policies are a management right, thus the city was not required to negotiate with the union before changing the policies.  Quoting San Jose, the court held the dispute was not subject to arbitration: “The power of a city to enact and enforce regulations relating to the use of firearms by police officers is in the exercise of the police power granted by article XI, section 7 of the California Constitution, which a governmental agency may not suspend, bargain or contract away....”