Page 18 - September Issue

FIORETTO, CONTINUED FROM PAGE 16
efforts to resolve the grievance. If not resolved, the grievance will be submitted to the Lodge 7 Grievance Committee, which meets monthly. At that point, a decision is made whether to proceed to arbitration, based on the specific facts of the grievance; any prior, relevant decisions; supporting case law; and past practice. Indeed, Lodge 7 does not want to proceed to arbitration based upon a set of facts which might lead to an adverse ruling impact- ing a large group of officers or, possibly, the entire membership.
Once arbitration is demanded, Lodge 7 and the city endeavor to select an arbitrator from a panel of full-time arbitrators whom the parties use regularly, to preside over the matter and conduct a hearing on the merits. Arbitrators’ fees range from $1,400 to $2,000 per day. It is not unusual for an arbitration hearing ulti- mately to have between $5,000 and $7,500 in arbitration fees. Under the CBA, the losing side pays the arbitrator fees.
Although we have made great strides in clearing some of the backlog, it might take more than a year to schedule a grievance for hearing. In fact, we are still scheduling arbitration hearings from grievances filed in 2012 and 2013. Often times, the parties are able to settle a grievance, short of arbitration, to everyone’s satisfaction. This provides the grievant with some remedy which might not exist if the grievance is denied by an arbitrator. It also resolves the matter much sooner. Even after the matter is set for hearing, it might take another six-to-nine months ultimately to obtain a decision.
In April 2014, Lodge 7 had nearly 1,000 “active” grievances – some dating as far back as 2004. Working with the Field Represen- tatives and the Lodge 7 support staff, we have slowly reduced the backlog, which had been increasing through the years, while pro- cessing new grievances. Currently, Lodge 7 and the city endeavor to schedule four or five arbitrations each month. Obviously, we try to select older grievances first. However, on occasion, if a partic- ular grievance raises a significant issue, we insist that the city have the matter heard sooner.
One such example is the Class Action Tattoo Grievance, filed by Representative Al Francis, Jr., on behalf of all officers who are
impacted by the department’s unilateral decision to ban visible tattoos while on duty without bargaining with Lodge 7. The union immediately filed a grievance (as well as an unfair labor practice charge) on June 8 after learning that the department changed the longstanding policy on visible tattoos. The matter is now sched- uled for arbitration hearing on Sept. 9, 2015.
Recently, Lodge 7 has conducted periodic meetings or media- tion sessions with the city. The parties will select about 40-50 grievances and review them with an eye towards obtaining a favorable settlement. Working with Recording Secretary Greg Bella, we have been able to resolve a series of similarly-filed griev- ances successfully thanks to this process.
Typically, after an arbitrator conducts the hearing and the par- ties are allowed to present all of their evidence (which usually takes one day, but on occasion can take longer), both sides will file a post-hearing brief. Lodge 7 will incorporate the facts elicited during the hearing and combine them with legal support as to why the grievance should be sustained. Think of post-hearing briefs as closing arguments, where each side gets to summarize their position one last time. Citations to the official record are made and case law is cited to support a given theory. Arbitrators typically (although not always) issue a decision within 30-60 days after the briefs are filed. Once issued, a decision generally is final and binding on the parties.
No process is perfect. Not all outcomes are favorable. As I often tell all of the grievants I represent, we cannot promise a specific outcome, but we can always promise that we will present the best possible case and advocate for the members.
Be safe and enjoy the fast approaching fall weather. d
Pasquale (Pat) A. Fioretto has been associated with the Baum Sigman law firm since 1990, and as of Jan. 1, 1999, became a shareholder member of the firm. He concentrates his practice in the areas of labor and employment law, in both the public and private sectors.
HERBERT, CONTINUED FROM PAGE 17 tisol levels increase, auditory exclusion may occur and peripheral vision is reduced as the person’s vision narrows to closely focus on the threat.
These facts are known to trained investigators and the scientific data is available for anyone who has an inclination to study the issue. A major new study of human performance under stress was spon- sored by the Force Science Institute. This groundbreaking study is now the subject of a peer-reviewed report that has been accepted for publication by the American Psychological Association’s prestigious journal, Law and Human Behavior. In the first-of-its-kind study, an international team of researchers conducted an experiment that doc- uments the effects of stress on the memories of officers who were actively involved in an armed confrontation scenario.
The study reveals that officers engaged in the scenario had higher levels of stress than officers who just witnessed the deadly-force sce- nario and the engaged officers’ stress was at its peak when the threat level appeared the greatest. This dovetails with established scientific literature that confirms that the greater the stress on an individual, the more likely it is that their memory will be flawed. Thus, at the most critical moment in a deadly force encounter - the moment that perhaps is the most important for an officer to describe accurately to investigators -the officer's memory of certain key details about what
happened is likely to be the least reliable. Therefore, it should not be surprising that officers involved in the use of deadly force often have difficulty accurately answering what appear to be simple yet vital questions. These may include a description of the suspect's weapon, whether the weapon was visible in the suspect’s hand, how the weapon was presented and did the suspect even fire the weapon.
The study is essential in that it highlights the need for all parties involved in investigating and reporting deadly-force incidents to remember that an officer can honestly misstate or not recall informa- tion regarding significant events that occurred while under the intense stress of a deadly-force encounter. Officers involved in the use of deadly force are tasked with making split-second decisions under immense physical stress. These officers own the right to have any subsequent judgment of their performance be reasoned and informed by science. We can only hope that prosecuting agencies will consider this proven fact in analysis of such events in the criminal context. d
Dan Herbert is a former Chicago Police Officer, Cook County Pros- ecutor and in-house attorney for the Fraternal Order of Police, Chicago Lodge #7. He is the founding member of The Law Offices of Daniel Q. Herbert and Associates.
18 CHICAGO LODGE 7 ■ MARCH 2015