A. Section 349.025 Wis. Stats. prohibits “quotas,” but allows the comparison of

“citations, complaints or warning notices” for evaluative purposes.

B. Developing a defensible data collections system that avoids attacks on its fairness.

1. Day of the week

2. Specific shift

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3. Consideration of special duties/responsibilities

4. Assigned patrol zones

C. Establishing a minimum “production standard” for comparative purposes from the

data

D. Building in an opportunity for the specific officer to identify reasons or rationales

(excuses) for failure to meet the production standard.

E. Consider removal of obstacles to meeting pure production standards by limiting

other discretionary police activities (i.e. focus on traffic enforcement only).

F. Use of supervisory ride alongs to give direction to officer concerning locations

and law enforcement tactics designed to effectively detect and apprehend law

violators.

G. Demand increased detail on daily reports to assist the Department in determining

whether there are any patrol strategies or other distractions which are contributing

to the lack of measurable production.

H. In the event of debates over “enforcement discretion,” the cases place that

discretion squarely in the hands of supervision, and officers can be directed to

exercise that discretion in specific ways consistent with management’s direction.

(See attached.)

TO: WCPA Members

FROM: James R. Korom

DATE: February 7, 2002

RE: Applicable Cases Concerning Police Production Standards

In their fourth edition of How Arbitration Works, (BNA, 1985) Elkouri and Elkouri stated

that:

Where the agreement contains no expressed provisions on the

subject, it has been held in many cases that management has the right

to set reasonable production standards and to enforce them through

discipline. In other cases this general right of management is

expressly or impliedly recognized, but the discipline for failure to

meet a production standard did not stand because the standard was

unreasonable or because the discipline was unjust for some other

reason. At p. 489.

In their 1991 Supplement to How Arbitration Works, Elkouri and Elkouri again stated:

Arbitrators continue to agree that management has the right to

enforce reasonable production standards through discipline. At p.

132.

In Hertz Corporation, 103 L.A. 65 (Pool, 1994), the arbitrator analyzed and rejected the

argument that discipline for low production could not constitute just cause because just cause

governs disciplinary authority, and penalties cannot be imposed against employees who have not

committed misconduct. Under this theory, failure to meet a production standard is not misconduct

unless it is the result of a fault on the part of an employee. To sustain the discipline, this theory

suggests, the employer needs to produce evidence demonstrating that the employee did something

wrong which caused him or her not to meet their quotas. There has to be substantive evidence of

slowdown, shirking, laziness, negligence, lack of proper application to the job or some other

misconduct. See Oroville Product, Inc. 88 L.A. 204 (Dworkin, 1987) at p. 207.

In disagreeing with arbitrator Dworkin in that case, arbitrator Pool stated:

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I disagree with arbitrator Dworkin for several reasons. First, this

reasoning deprives management of its right under the management

rights clause to maintain the efficiency of the operation. The right to

establish a productivity schedule to ensure efficiency is meaningless

if one cannot also discipline those who fail to meet the standards

assuming, of course, the system is fair and discipline is applied

consistently and takes into account those factors which affect

performance. Second, underlying the right of management to

discipline non-productive employees is a recognition that denying

management the right to discipline incompetent employees could

have disastrous economic consequences. Legitimate productivity

systems ensure production is maintained at a level sufficient for the

business to be profitable. When productivity does not meet the

standard, it places the existence of the business at risk. If an

employer cannot discipline employees absent misconduct, it would

mean an employer could have an operation which was losing money

and the employer could not discipline the employees whose poor

performance caused the operation to lose money. The obvious result

of arbitrator Dworkin’s logic is the employer would have no choice

but to close the operation which would result in a loss of jobs for all

employees including those whose competence was undisputed.

The view that an employee can be disciplined for low productivity

without any proof of misconduct is consistent with the weight of

arbitration opinions. In How Arbitration Works, supra, at 661,

Elkouri and Elkouri list numerous cases in which low productivity

alone was a legitimate basis for terminating an employee. In Kelly

Springfield Tire Company, supra, arbitrator Dean found the company

could discipline an employee who failed to meet production

standards.

In short, the collective bargaining agreement, the economic realities

under the collective bargaining agreement and the weight of

arbitrator decisions all support the conclusion that the “just cause”

requirement means management can discipline an employee for poor

performance and need not show misconduct. 103 L.A. 65 at 74.

In a case involving the disciplinary suspension of a warehouse man for continuing low

production after having received repeated warnings in regard to his low productivity, arbitrator

Darrow in Lash Distributors, Inc. 74 L.A. 275 (1980) held that maintenance of high efficiency is

important to the profitability of the company and the continued jobs of the employees.

Continued low production of M is very demoralizing

to a work crew and cannot be condoned.

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A word of caution to M . Your employer is using

progressive discipline against you and it predictable that if you do

not immediately improve your deportment, you can expect to be

discharged without any hope of reinstatement. At p. 278.

In dealing with a police department case involving an alleged improper ticket “quota”

arbitrator Heinsz in City of Toledo 70 L.A. 217 (1977) stated:

The arbitrator also finds that there was no evidence of an improper

“quota” requirement in regard to the issuance of traffic tickets in the

City of Toledo. Although the grievants testified that there seemed to

be a quota system, this evidence was not persuasive. None of the

officers specified any supervisors who directly told him to account

for a certain number of VTOs per day. As Officer Zakrzewski

testified, the number of tickets to be written was only “expected” and

was never stated. This number for the Accident Investigation Unit

was allegedly between three and five tickets per day, according to the

grievants. However, the arbitrator finds this difficult to believe

because the specified period (October 1976 to January 1977), the

average number of tickets issued by members of the Accident

Investigation Unit was always less than three (the highest average

being 2.31 in November of 1976)....thus, if there was a quota, no one

in this division met it with the limited exception of the two officers

noted above.

The arbitrator agrees that there is an inherent difficulty when

utilizing the effects of traffic enforcement (i.e., the issuance of traffic

citations), to measure the performance of an officer. If the

Department requires a set number of VTOs per day then a quota

would exist which is clearly improper. On the other hand, if the

Department uses a more flexible standard as in this case of

measuring an individual against the average number of VTOs

handed out per month in the unit, then there will always be at least

one-half of the persons in that unit performing at a substandard rate.

Still, the latter, flexible standard is a preferable system so long as the

average is used only as a “norm” to measure a variation of a wide

and continuing degree....However, the arbitrator would also note that

although the issuance of VTOs was one means to measure traffic

enforcement, it is certainly not the only relevant criteria. For

example, the amount of time that an officer was out of service

investigating accidents would certainly be relevant to the number of

traffic citations he could issue. Also, other factors, such as traffic

warnings rather than the issuance of tickets, should certainly be

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recorded since the two are a means of enforcing traffic regulations.

70 L.A. 220-221 (copy attached.)

Arbitrator Heinsz then went on to measure the appropriateness of the disciplinary transfer of

three police officers for failure to issue the appropriate number of citations; upholding one

disciplinary transfer and nullifying the other two based on the fact that the two officers in question

were close to the averages and the fact that at least one of them was not told of any expectation that

he was to raise his average number of tickets issued. As to the third officer, however, the arbitrator

stated:

His deviation from the norm of traffic citations in all four months

was much greater than either Officer Dietrich or Officer Zakrzewski.

He was practically the lowest member in the Accident Investigation

Unit in the issuance of citations in both December (1.36) and

January (1.05), even when one considers “in service” and “out of

service” time. Moreover, his production in October of 1976 (.060)

and November of 1976 (0.71) was less than one traffic citation per

day. When one considers the degree of variance from the average

number of VTOs issued per day over the four month period, it is

clear that Officer Schultz made little or no attempt to increase his

enforcement of traffic regulations. In October of 1976 he issued

only 33% of the average number of citations per day. In November,

this figure dropped to 31% of the average. Although in December,

his rate of issuing tickets rose to 63% of the average, in January it

again dropped to below one-half (47%) of the average number of

citations per day.

The notice given Officer Schultz was also substantially different in

regard to his failure to perform adequately. As noted in the case of

Officer Zakrzewski, City Exhibits Numbers 4, 5 and 6 were never

posted, and Officer Schultz...could not know the exact level of

performance which was expected of him. On the other hand, his

total number and average number of citations were so low that he

must have been aware that he was performing at an unacceptable

level and the evidence indicates he made little or no effort to increase

his performance to a minimally acceptable level. From this action

one can impute knowledge on the part of Officer Schultz that he was

not performing anywhere near the level he should in regard to traffic

enforcement. 70 L.A. at 222.

In a case upholding a one day suspension of a police officer for failure to meet minimal

monthly performance quota of one ticket per day, arbitrator Bard, City in Richfield, 89 L.A. 1040

(1987) carefully scrutinized the application of the seven tests of just cause to a the suspension for

failure to meet a ticket production level based on the following statistics:

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1. The average number of enforcement activities in the City of Richfield averaged

about 2.4 per shift based on a one year study, and the requirement of the officers is

only 1 per shift;

2. The grievant did not meet that requirement on four different occasions;

3. Only two other incidents of failure to meet the requirements by other officers have

occurred, and they were not repeated since the program was put into affect;

4. In August, the grievant had 3.7 hours per shift of time not described in his daily

activity reports compared to 2.6 hours for another officer who was able to achieve

his quota;

5. The total departmental percentage of time used on tag/bookings, i.e., enforcement

activities, was 22.07% as opposed to the grievant’s average of 13% for the month of

August. Officer Gabrysh’s August percentage was 24.79% and Team Three’s

average, on which both officers work, was 21.7%.

The arbitrator concluded that the employer had established the statistical evidence that the

grievant’s performance was below par, both the average and the median performance, and that

ample time existed for him to improve the level of his performance. 89 L.A. 1046.

Arbitrator Bard considered this case compelling:

“Not because the arbitrator believes that the established standard in

all instances is valid, or valid at all, but because of the number of

times the grievant failed to meet an apparently reasonable standard

as opposed to the other officers on his shift. The arbitrator can

therefore infer not only a persistent failure to meet a “quota”, but

substandard performance based on a failure to achieve a median or

mean performance level based on established criteria. This,

combined with the unaccounted for free time, entitled the arbitrator

to infer nonfeasance on the part of the grievant regardless of the

existence of a so-called “quota.”

Cases of non-feasance are...extremely difficult for arbitrators to

resolve. Unlike cases of specific misconduct, they are always

subject to the argument that there is no one present to allege that the

grievant has affirmatively done anything wrong. On the other hand,

an arbitrator cannot simply ignore such allegations by an employer.

If he were to do so, the entire system, the ability of an employer to

ensure itself of having a competent and aggressive workforce, would

collapse. 89 L.A. at 1047.

In concluding that a one day suspension was an appropriate penalty, arbitrator Bard stated:

It is clear that the right of the employer to direct the attention of its

workforce in any particular direction is within its own purview. It is

not a proper function of the Union to suggest that employees cannot

perform under that program because they are busy elsewhere. The

determination as to whether they ought to busy elsewhere is that of

the employer which, within the restrictions placed upon it by its

ministerial obligation to the State of Minnesota and to the citizens of

the state and the City of Richfield, it is free to choose its own

methods of operation and law enforcement. 89 L.A. 1049.

In sum, arbitrators are reluctant to upset the determinations of management with regard to

the level of production for police officers. While it may be difficult to monitor the moment to

moment activities of police officers, arbitrators are willing to hold them to standards established by

an employer which are based on averages achieved by similarly situated co-workers. Therefore,

absent unique or extenuating circumstances which would limit a police officer’s attainment of

average production, progressive discipline for consistently failing to be near the average established

by an employer is a lawful and appropriate basis for discipline.