Police unions are a contentious topic. Labor academics have debated whether limiting unions’ collective bargaining rights would reduce police misconduct, especially excessive force and racial discrimination. For example, compare Benjamin Sachs, Police Unions: It’s Time to Change the Law and End the Abuse, On Labor (June 4, 2020) with Martin Malin and Joseph Slater, In Defense of Police Collective Bargaining, Chicago Sun-Times (Aug. 12, 2020). Relevant here, a New York Times editorial called for abolishing labor arbitration in police discipline cases. To Hold Police Accountable, Ax the Arbitrators, N.Y. Times (Oct. 3, 2020).
These debates and the events that gave rise to them have already led to limits on police collective bargaining. For example, in 2020, the District of Columbia made discipline of police officers a management right not subject to negotiation. See Fraternal Order of Police, Metropolitan Police Dept. Labor Committee v. District of Columbia, 502 F. Supp. 3d 45 (D.D.C. 2020). Other states restricted who could act as an arbitrator in police discipline cases. See Washington State statute SB 5055 and Minnesota statute 626.892.
In this context, Michael Green’s article Black and Blue Police Arbitration Reforms makes a valuable and persuasive contribution. The article rebuts various attacks on labor arbitrators and police union arbitrations. It also offers reforms designed to give Black police officers a voice in a more transparent process. It suggests that police employers and unions negotiate agreements to consider public values in defining “just cause” disciplinary actions in which race matters.
The article begins with the tragic story of Derek Chauvin killing George Floyd. Notably, the local police union president, after Floyd’s death, suggested that Chauvin and other officers involved could see their discharges reversed by a labor arbitrator. Green cites a study that found that arbitrators sided with police officers in about half of all discharge cases in Minnesota. He asks whether this number seems intuitively wrong, especially given that unions tend to only arbitrate cases in which they think their side has a decent chance of winning.
Still, much scholarship and popular writing on this topic have argued that labor arbitration and labor arbitrators are a serious problem in this area. Throughout, Green makes powerful and nuanced arguments about what is, frankly, a problem with no easy and obvious solutions.
For example, he stresses the political power of police, which exists even where police unions lack collective bargaining rights. He notes that politicians have incentives to blame arbitrators. He emphasizes the important role of police employers: for example, their frequent inability or unwillingness to correctly discipline officers who engage in bad acts. He rebuts suggestions that professional arbitrators attempt to “curry favor with both sides.” He analyzes why arbitrators, using standard “just cause” analysis, reverse some employer discipline in cases involving police and other types of employees and finds no significant differences based on occupation. He explains that police receive protections in discipline from “Police Officer Bill of Rights” and civil service statutes independent from collective bargaining rules. He stresses the role of arbitrators in enforcing the rules to which the employer and union have agreed.
Green also offers positive proposals. He calls for more input from Black police officer groups and individuals (e.g., those affiliated with the National Black Police Association) in developing reforms, along with a greater focus on hiring Black officers from the communities they serve. He calls for promoting community policing and diversity. He gives examples of Black police officers and some police departments taking these approaches in various contexts. While these do not involve labor arbitrations, Green argues that the perspective of Black officers regarding arbitrations “would, at minimum, represent a nice next step to seeking some sustaining changes.” (P. 49.) He does not underestimate resistance to reform among many police union leaders, but he predicts that recent changes limiting police union disciplinary arbitrations may create incentives to compromise.
Green also praises negotiations in Philadelphia that created a Police Arbitration Board to ensure arbitrators are trained on implicit bias and that its arbitration roster consists of forty percent women and people of color. This contract also put a civilian on the police department’s disciplinary panel for the first time and provides for civilian participation in all aspects of discipline. He describes the pros and cons of making prior police disciplinary records open to the public. He also positively cites calls for more union-management partnerships in this area. The bottom line is that unions, police departments, and politicians need to work out solutions. The problem is not labor arbitrators.
I have some reservations about one suggested reform: making police labor negotiations and/or arbitrations open to the public to further transparency. While this proposal has been made elsewhere as well, in my view, the history of public-sector laws that required bargaining to be done in public meetings does not suggest that this will be useful. Nor do I think that making police discipline arbitrations public would be an effective mechanism for change. In neither situation would members of the public have any power to affect decisions (although Green does cite an example in Austin in which an advocacy group was able to encourage some reforms). While we have public trials, I wonder whether there would be pressure to make public negotiations and arbitrations for other types of employees, with the inherent additional costs and inefficiencies of doing so.
That aside, I have nothing but praise for this article. Too often, those debating these issues lack a sophisticated understanding of how labor arbitrations in general and in the police context actually work. Professor Green understands the law, the process, the problems, and the politics, and does an excellent job analyzing an extremely important issue. I liked this a lot.
