Police Unions vs. Police Administration
By Lou Reiter, LLRMI Co-Director and Director of the Public Safety Internal Affairs Institute
In the wake of the public protests following the George Floyd incident in Minneapolis there is a lot of venom being hurled at police unions, collective bargaining and binding arbitration. Much of this is warranted, but police administration and local government also have to share some of the blame. Let’s look at just two aspects of this issue: collective bargaining and binding arbitration.
Police collective bargaining began in the early 1970s. But there were police unions before that usually called anything but a union. They were looking out for the safety, wellbeing and working conditions of street cops. They objected to using recapped tires on police cars. They felt the employers should pay for safety issues such as guns, uniforms and vests. The unions objected to unpaid overtime. All of us who were street cops benefitted from this early work.
Collective bargaining, where allowed, brought some order to the process. Management was a part of this. Unfortunately, some police administrators were not an active part of the bargaining process. This was either by abdication or a choice of the governmental unit. Lawyers, labor relations units and bean counters most often represented management. The problem was they weren’t so much concerned with running a police agency as they were in holding down the costs to the budget. Unions saw an opening that wouldn’t cost the city/county any money ‘up front,’ but would cost plenty down the road. Discipline was one of those issues that the union began to excel at. Things like ‘no embarrassment clause’ or ‘no discipline’ if the officer came to work with an alcohol reading as high as even .08BA and shredding or hiding of discipline files. Management agreed to all of these!
Binding arbitration of discipline matters has been perplexing for law enforcement. But, again, management agreed to it! Some of the union issues have been that it’s necessary to overcome abusive police managers who use IA/OPS to punish good cops who buck the system or supervisory control. Unions make sure the agency complies with the provisions of the CBA and any other due process rights given locally or at the state level and know they’ll win in arbitration if the local jurisdiction doesn’t. Unions also know that most arbitrators probably favor labor in any dispute.
Now police management and the local government have to share in some of the blame. Many arbitration cases are lost because the agency failed to conduct a reasonable investigation and overlooked the essential aspect of qualifying the discipline by articulating the rational reasoning for the discipline. Recently Baltimore lost nearly 100 discipline cases because it failed to adjudicate them within the statute of limitations imposed by the State. But well-prepared discipline cases can be won by management in the arbitration process. Courts are reluctant to overturn an arbitration award but will under certain conditions. One is if the arbitrator exceeded his/her authority which is difficult to prove. Another is if it is demonstrated the arbitrator had some undue bias. A more common one is if the arbitrator’s award is contrary to the ‘public interest or policy.’ The problem is that too many local jurisdictions will just roll over and not challenge an inappropriate award. Yes, it costs money but keeping a malignant cop on the job will eventually cost even more.
Binding arbitration in disciplinary matters should be eliminated. The only reasonable way to do that is to bargain it away with the union. What you’ll have to give up depends on what the union has to lose. Another method might be to disband the police agency and create a new one like what happened to Camden NJ Police Department. That’s a rash method with downsides and will also cost the local jurisdiction money.
In the end a police agency can reasonably hold its employees accountable if it follows proper IA/OPS procedures. These are not new! Unfortunately too many agencies elect to not follow these safeguards.