THE PROBLEM WITH POLIE UNIONS

Collective bargaining protects too many bad cops from discipline

 

By The Editorial Board

 

The Wall Street Journal

June 10, 2020

 

Remember the furor in 2011 when Republican governors tried to reform collective bargaining for government workers? Well, what do you know, suddenly Democrats say public-union labor agreements are frustrating police reform. We’re delighted to hear it—if they’re serious.

Minneapolis Mayor Jacob Frey on Sunday said police collective bargaining and arbitration have prevented the city from holding officers accountable for misconduct. Derek Chauvin, the officer charged with killing George Floyd, 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.”

 

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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.

 

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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.

Democratic lawmakers in particular depend on public unions for political support, and disciplinary protections are easy to give away in contract talks. Teachers unions are the most powerful example, as collective bargaining frustrates school reform and protects lousy teachers, relegating low-income and minority kids to failing schools.

If big-city Democrats really want to change police incentives, rather than merely pass reform gestures, they’ll have to address collective bargaining. Let’s see if their social-justice convictions overcome their desire for political backing from public unions.