Public Sector Unions – Part 3

Public sector police unions.

In this third essay in a series on public sector unions we’ll explore how the dynamics of collective bargaining among police departments has led to lenient rules on police misconduct.

As Philip Howard writes in his book Not Accountable: Rethinking the Constitutionality of Public Employee Unions:

Derek Chauvin, the policeman who killed George Floyd in Minneapolis in 2020, had a history of citizen complaints and was thought to be “tightly wound,” not a trait ideal for someone patrolling the streets with a deadly weapon. But under the police union’s collective bargaining agreement, the police commissioner lacked the authority to dismiss Derek Chauvin, or even to reassign him … [Chauvin] had been the subject of more than a dozen complaints about his conduct.  In two previous incidents, Derek Chauvin had been disciplined with letters of reprimand.  Public-sector unions, including police unions, protect their members in ways that create a culture of impunity, and even police officers who are terminated can be reinstated, “often via secretive appeals geared to protect labor rights rather than public safety” according to a 2014 piece in the Atlantic.

As described in an article published by the Center for Public Integrity, unions generally have been unwilling to address the problems caused by police union collective bargaining agreements:

Police unions have written labor contracts that bar law enforcement agencies across the country from immediately interrogating or firing officers after egregious acts of misconduct. Leaders of the country’s other labor unions are tiptoeing around the subject as their members join protests in hundreds of U.S. cities this week over the killing of George Floyd. Labor leaders have strongly denounced police officers’ actions in that case and called on lawmakers to address systemic racism. But they’re suggesting that collective bargaining agreements shouldn’t be on the table ... Public Integrity reached out to leaders of 10 major unions and labor groups. None were willing to talk about police unions. Trumka, of the AFL-CIO, was too busy to chat. The president of the United Food and Commercial Workers Union couldn’t fit a call into his schedule. Teamsters President James Hoffa declined to comment. Silence from the Service Employees International Union, the American Federation of State, County and Municipal Employees, United Auto Workers, Communication Workers of America, Unite Here and the American Federation of Teachers ... Randi Weingarten, president of the American Federation of Teachers, said no union contracts should shield employee misconduct, but that focusing on collective bargaining is a “false choice.” ... [T]he AFL-CIO created the Commission on Racial and Economic Justice, to address what the federation called “police-on-black crime,” among other problems facing Black communities. In 2017, the commission published a report with a long list of recommendations for unions, such as urging lawmakers to mandate racial bias training for cops and to abolish the for-profit prison system. Yet the report barely mentioned the role of police unions in the racial justice movement … Nowhere did the report mention how police union contracts typically include language to hide complaints against police officers from the public. It didn’t describe the arbitration clauses that often force police departments to rehire misbehaving cops. Or how police unions have successfully lobbied for state laws granting police officers far more job security than the average U.S. worker.

As the Wall Street Journal has explained:

Minneapolis Mayor Jacob Frey … said police collective bargaining and arbitration have prevented the city from holding officers accountable for misconduct. [Chauvin] had at least 17 misconduct complaints against him in 18 years. His personnel file provides little detail about how these complaints were handled. But it appears he was disciplined only once—after a woman said he pulled her from a car and frisked her for exceeding the speed limit by 10 miles per hour. He received a letter of reprimand. Minneapolis’s Office of Police Conduct Review has received 2,600 misconduct complaints since 2012. Only 12 have resulted in discipline, and the most severe punishment was a 40-hour suspension. “Unless we are willing to tackle the elephant in the room—which is the police union—there won’t be a culture shift in the department,” Mr. Frey said. Jason Van Dyke, the Chicago officer convicted of murdering 17-year-old Laquan McDonald in 2014, had been the subject of 20 complaints—ranking in the top 4% of Chicago’s police department—including 10 that alleged excessive use of force. A jury awarded a man $350,000 after finding Mr. Van Dyke employed excessive force during a traffic stop. Yet Mr. Van Dyke was never disciplined. A task force on police reform after the McDonald murder found that “collective bargaining agreements create unnecessary barriers to identifying and addressing police misconduct” and “essentially turned the code of silence into official policy.” Police have a point that complaints against them are often dubious and they need an advocate to defend them. But collective-bargaining agreements go beyond due process and insulate officers from accountability for egregious and serial misconduct. Some 40 states require or permit collective bargaining for police. A Duke Law Journal study in 2017 that analyzed 178 police union contracts concluded that a “lack of corrective action in cases of systemic officer misconduct is, in part, a consequence of public-employee labor law” that in most states permits unions “‘to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment.’” The authors found that about half of cities had collective-bargaining agreements that required the removal of police disciplinary records after a certain period of time. Cleveland’s contract mandated expunging disciplinary records from department databases after two years. This makes it difficult for supervisors to assess whether officer misconduct is habitual. About two-thirds of police union contracts also allow or require the use of arbitration in disciplinary cases. Private employers often use arbitration to resolve complaints by and against employees, but cities such as Chicago, Detroit and Minneapolis allow police unions essentially to select the arbitrator. A University of Pennsylvania Law Review paper last year found that about half of all union contracts give officers or unions “significant power to select the identity of the arbitrator” as well as “provide this arbitrator with significant power to override earlier factual or legal decisions” and “make the arbitrator’s decision final and binding on the police department.” The average police department, the paper notes, offers officers up to four layers of appellate review. A quarter of officers fired for misconduct between 2006 and 2017 were reinstated, usually by arbitrators. An Oakland police officer shot and killed two unarmed men within the span of six months, one of whom was fleeing. Oakland paid $650,000 to one of the deceased’s family and fired the officer, but an arbitrator ordered him reinstated a few years later with back pay. This lack of accountability is endemic to government collective bargaining. The AFL-CIO’s legendary chief George Meany once said “it is impossible to bargain collectively with the government.” Collective bargaining in business is adversarial. But public unions sit on both sides of the bargaining table since they help elect the politicians with whom they negotiate.

The Duke Law Journal study cited further found that “a substantial number [of collective bargaining agreements] unreasonably interfere with or otherwise limit the effectiveness of mechanisms designed to hold police officers accountable for their actions.” The contracts often “limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations.” And another study found that “collective bargaining rights led to a substantial increase in violent incidents of misconduct.”

Police union and collective bargaining reform look to be the best options for police reform, all things considered.  As explained by Rafael Mangual:

In some cases the police use force negligently or malevolently. But the infrequency with which they use force at all suggests less room for improvement than many police critics imagine. Nationally, police discharged their firearms an estimated 3,043 times in 2018, resulting in 992 deaths. The same year, nearly 700,000 full-time officers made more than 10 million arrests. A 2018 study, published in the Journal of Trauma and Acute Care Surgery, analyzed more than 100,000 arrests. It found that more than 99% were carried out without the use of physical force. In the cases when force was used, 98% of subjects sustained mild or no injury. Police aren’t perfect, and even their staunchest defenders must acknowledge that some officers have taken one too many sips from the fountain of power that is a government-issued badge and gun. The question is what to do about it. A look at some of the available research suggests the impact of many popular reform proposals may be marginal. They may still be worth implementing, but these problems have no easy answers. Take qualified immunity. This is the controversial doctrine that protects officers (and other government employees) from civil liability when their actions violate a right that was not at the time “clearly established”—say, by another case with similar facts. Many have argued that the doctrine undermines police accountability and encourages bad behavior. But it isn’t successfully invoked that often. A 2017 study published in the Yale Law Journal analyzed nearly 1,000 cases in which the defense could be asserted. Only 3.9% of them were dismissed on immunity grounds. A database of lawsuits filed against police in New York City shows that of 2,387 documented cases, only 74 were resolved in favor of the defendants. Also popular are calls to “demilitarize” police and prioritize de-escalation tactics. Here again, the research doesn’t support high expectations. Rigorous empirical assessments, including a 2017 study by University of Tennessee researchers published in the American Economic Journal, of the effects of acquiring military surplus equipment have found that the impact of such acquisitions on deadly force is null. Further, it tends to reduce citizen complaints and deter crime. A substantial literature on the effects of de-escalation and crisis-interventiontraining also shows little effect. As for the more radical proposals like defunding police, consider that between May 29 and 31, while police were occupied with quelling violent protests, Chicago saw its most violent weekend of the year, with 84 people shot and 23 murdered. That Sunday was the city’s most violent day since 1961. Betting that this is mere coincidence strains credulity and runs counter to a body of literature showing that when police activity is curtailed, crime goes up. Other research shows that the mere presence of police can reduce crime, and that quicker response times can increase clearance rates. Cutting police resources would only diminish the ability of police to have these effects. A more promising idea is to limit the power of police unions, whose contracts make it difficult to fire bad officers. It’s a reasonable conjecture that removing bad cops from the force would prevent their bad behavior from escalating, and making it easier to meet clear misconduct with discipline would improve public perception.

Yet despite obvious flaws in police discipline procedures required by collective bargaining agreements, many politicians continue to make false allegations of racism to explain police misconduct and avoid discussing collective bargaining reform.

In the next essay in this series, we’ll explore how public sector unions came to be, despite opposition from prominent liberal politicians of the day.