Monday, July 27, 2020

The Arbitration of Police Officer Discipline

Police unions and their contracts should be considered in discussions of social justice and policing. But we shouldn’t ignore the details of the arbitration procedure for deciding police discipline. It’s common for U.S. union contracts across all occupations and industries to set standards for discipline and discharge (especially just or good cause), and to specify a grievance procedure. Typically, the final step of this procedure allows for arbitration by a neutral arbitrator who determines whether these standards have been fulfilled and if so, the appropriate discipline.

Unionized grievance procedures are important, especially when workers face discipline or termination. Rather than having one’s livelihood threatened by arbitrary or unjust managerial actions, unionized grievance procedures give workers due process so that discipline or terminations only occurs when it is done properly, supported by evidence, and just. The ability to appeal to an arbitrator is the linchpin for delivering due process because a neutral, third party can override unjust actions rather than leaving the grievant at the mercy of organizational leaders. Arbitrators take this role seriously, and there is now a rich body of accepted standards relating to due process, progressive discipline, and just cause.

Turning to police officers specifically, if we see them as workers, then they should be entitled to due process protections so that any disciplinary actions are just. As such, many police union contracts have grievance procedures ending in arbitration just like those found across the U.S. private and public sectors. But unlike most workers, police officers are allowed to use force against others, and police misconduct can severely injure or kill others. This magnifies the importance of disciplinary procedures when applied to police officers, and it is important to ask whether such procedures make it difficult to hold police officers accountable for misconduct (or whether it would make it difficult to hold public safety workers accountable in a drastically-changed system of public safety in which they are not class collaborators).  

One study found that around 25 percent of terminated police officers who appealed their firing to arbitration were reinstated by arbitrators. Police chiefs argue that this undermines their authority and makes it difficult to hold police officers accountable for misconduct. By itself, however, that some cases are overturned does not mean that there is a problem with arbitration. Indeed, arbitration only serves its purpose of providing due process throughout the grievance process if unjust terminations are overturned. For example, a patrol sheriff was fired for escorting his girlfriend home during his shift so they could spend his lunch break together, but this was overturned by an arbitrator who found that the investigation of this incident was incomplete, unreliable, and incorrect.

But legal scholar Stephen Rushin’s in-depth consideration of police disciplinary appeal procedures reveals specific features that could undermine accountability. One, when police chiefs and unions play an active role in selecting the specific arbitrator who will hear the case (e.g., by alternating striking names from a roster of choices), arbitrators have an incentive to make both sides happy in order to be selected again in the future. Reducing a termination to a suspension might be a way to split the difference between the two sides. Alternative selection procedures could weaken this incentive while preserving arbitration as a check on due process. For example, starting in September 2020, in Minnesota a roster of arbitrators will be assembled by the state’s Bureau of Mediation Services, and after they undergo training on racism and policing, arbitrators will be assigned to cases alphabetically rather than selected by the parties. [Relatedly, most arbitrators are probably older white men so the impact of reforming the selection process could perhaps be magnified by diversifying the arbitration profession.]

Two, arbitrators typically have broad authority to hear a case without deferring to previous decisions in that case—in legal parlance, they can arbitrate a case de novo (“from the new”). So all evidence can be reconsidered, new factual determinations can be made, and decisions by, for example, civilian review boards, can be ignored. Police officers accused of misconduct have a strong incentive to appeal to arbitration because they will get a new hearing. But perhaps more significantly, the authorities that are democratically accountable to the community—such as police chiefs, city officials, or civilian review boards—are subordinate to the arbitrator who can craft his or her opinion from scratch. An alternative approach would be to make arbitration more of an appellate-type review with a deferential standard. In this way, rather than an arbitrator being able to substitute their judgement for that of the police chief, the arbitrator would need strong procedural reasons or evidence of significant factual errors to overturn a disciplinary decision. In other words, this could shift the mindset from “what would I (the arbitrator) do?” to “is what was done reasonable?” This could still provide a check on due process violations, but would give more deference to the decisions of democratically accountable officials.  

Another area to consider is past practice. An important aspect of just cause is whether discipline is being evenly applied—that is, is the worker being treated the same as other workers who previously did similar things? So arbitrators place a lot of weight on past practice, and when seen through a lens of fairness, this seems appropriate. But if police departments have been lax in holding police officers accountable for misconduct, then the importance of past practice for arbitrators can make it difficult for new leaders to enforce misconduct standards because others have not been punished for the same offenses in the past. Communities United Against Police Brutality therefore advocates for a mandatory “disciplinary reset mechanism.” This consists of a thorough revision of a police department’s use of force policy that includes clear penalties for violations and a statement that this replaces past practices. This should also include training for officers on the new policy, and training for supervisors on how to correctly document violations while also administering consistent and progressive discipline. If done properly, this will fulfill the arbitral standards for just cause discipline and discharge.

In closing, design choices for organizational dispute resolution procedures importantly affect worker justice and organizational efficiency. In the case of police officers (or potentially some workers in a reformed system of public safety), it may also influence public accountability for police brutality, with very important and sometimes tragic consequences for victims and communities. This makes these issues too important to uncritically accept the status quo without considering avenues for improvement, even if this is just a small piece of a larger, complex puzzle of public safety reform.

Discussion / Reflection Question

What are some limitations of these proposals for changing arbitrator selection, limiting de novo authority, and enacting a disciplinary reset? Be sure to separately consider this from the perspective of (a) police or public safety workers, (b) police department and city officials, and  (c) the public.


Police Unions, Contracts, and Misconduct

Systemic problems with police brutality raise important issues for labor relations. As with other public sector workers, police officers have pushed for collective bargaining rights when they have been frustrated with their pay and employment conditions, and they started winning these rights in the 1960s as states began authorizing public sector collective bargaining. Today, police officers are among the most highly-unionized occupations in the United States, and police unions have used collective bargaining to advocate for officers’ interests. In many respects, this is no different from what unions do for any kind of worker, and police union contracts are like many other collective bargaining agreements in that they include provisions pertaining to salaries, overtime, leaves, health and retirement benefits, retirement, hours, sickness and vacation leave, pensions, just cause requirements, and a grievance procedure. But there are also important ways in which police unions are unique, and these cannot be separated from issues of race.

Police officers are a very special type of worker because they are allowed to use physical force to  enforce laws and rulings. As such, the police, along with the military and prison system, are the coercive force of the government, and by extension, the economically and politically powerful. The extent to which this serves elite interests is clearly seen in the origins of policing, such as slave patrols in the southern U.S. that violently controlled and terrorized African Americans, and the use of police in the north to physically repress striking workers through mass arrests and violent crowd dispersal, as highlighted in this 1934 rally against police brutality organized by striking longshore workers. Today, police are still used in strikes, often on the side of business (e.g., making sure strikebreakers can enter and leave work sites), and to maintain by force what elites characterize as “social order.” Note carefully that this involves race when elites are largely white and their perceived threats to social order are people of color. More generally, when laws, public policies, and state-supported institutions perpetuate racial inequality, then policing is inextricably linked to structural racism because of policing’s role in enforcing these instruments of the state, even in the absence of racial prejudice among individual police officers.

Among unions, then, police unions can have unique relationships with the ruling state apparatus. Indeed, connections with conservative, law-and-order politicians have made police unions particularly powerful in the political arena at a time when most other unions are under attack by conservative politicians and right-wing groups. This has allowed police unions to be exceptionally successful in shielding police officers from discipline for police brutality and misconduct. Campaign Zero highlights various ways in which police contracts make it difficult to hold police officers accountable for misconduct:

  1. Misconduct complaints are invalid when submitted too many days after an incident occurs or are dismissed if an investigation takes too long (sometimes as short as 60 days).
  2. Limitations are placed on how, when, and where police officers can be interrogated, including prohibitions on interviews immediately following an incident.
  3. Accused officers are given unique access to information get prior to being interrogated (e.g., names of accusers and all evidence before even being interviewed).
  4. Officers are given paid leave while under investigation, and cities are required to pay other costs like legal fees and settlements with victims.
  5. Civilian oversight structures and/or the media are prevented from holding police accountable by limiting what can be released to the media and by allowing appeals to arbitration.
  6. Past misconduct is erased from an officer’s record after a period of time (sometimes as short as 2 years) and/or cannot affect punishment in a subsequent case.

Even in the absence of contractual provisions, at least 16 states include some of the these provisions in Law Enforcement Officers Bills of Rights (“LEOBORs”), so these types of inhibiting provisions are not limited to police officers who are unionized.

Police unions, then, have pursued a “business unionism” philosophy that focuses on protecting their members’ interests. In principle, this is not unusual as all unions advocate for their members. But given the unique roles of police officers in society, has this gone too far? Indeed, whether achieved via collective bargaining or legislation, research shows that these barriers to police accountability are associated with greater levels of police abuse. And yet police unions oppose reform, sponsor warrior training (even against the order of their own city, as was the case in Minneapolis), and target officers who speak up about police misconduct. So unlike some other unions that have become more community oriented, police unions see their interests in opposition to the community. This reflects a “thin blue line” mentality that assumes the police are the only thing preventing society from descending into disorder. When combined with the militarization of the police, this results in an us versus them mindset in which everyone represents a threat.

These issues are inseparable from race as police officers are mainly white as are their union leaders, even when the community is not, and they are part of a criminal justice system that systemically produces racially disparate outcomes. This is not to say that all police officers are prejudiced, but it should raise questions about the overall nature of the system, the roles of police unions within it, and changes to police unionism that could better strike a balance between collective bargaining rights for police officers and social justice for people of color and others. In terms of police unions, such changes could include greater public oversight, ending exclusive jurisdiction so that reform-minded officers could form their own associations that might be more reform-minded and community-oriented, and excluding issues of force, misconduct, and discipline from collective bargaining. 

Discussion / Reflection Questions

1. What elements of police work justify extra protections against discipline and discharge? What elements of police work justify the opposite?

2. What are some ways to strike a better balance between police officer safety and the safety of the public?

3. Should police unions be expelled from labor federations like the AFL-CIO?

4. What elements of police accountability should be handled in the employment relationship and what elements should be handled in the criminal justice system? How should these processes relate to each other? What features of policing create unique barriers to relying on the criminal justice system for handling police accountability? What are the implications of these unique barriers for how the police officer employment relationship should be governed? In other words, how are police officers different from other workers, and what does this imply for police officer unionization and contracts?

Monday, June 29, 2020

Using Employment Relations Frames of Reference to Think about Discrimination and (Institutional) Racism

Central to my approach for labor relations teaching is the explicit recognition of schools of thought (equivalently, “frames of reference”) on the employment relationship. Four schools of thought, in particular, illustrate sharply contrasting perspectives on labor unions, and it’s important to understand how these views are rooted in different models of the employment relationship that embrace differing assumptions. In brief, the four key models are:

1. Neoliberal egoist: Dispassionately rational employers and employees freely pursue their own self-interest in competitive labor markets; when these interests align, they transact with each other, when they do not align, they keep searching for mutually-beneficial exchanges.

2. Unitarist: Although labor markets might not be perfect, employers and employees share a unity of interests (hence “unitarist”), especially in that treating employees well improves the company’s bottom line and vice versa.

3. Pluralist: Employers and employees interact as unequals with some shared and some conflicting interests that are accepted by the other as legitimate (hence, “pluralist”), but these conflicts are economic in nature and limited to the employment relationship.

4. Critical: Employers and employees interact as unequals with key conflicting interests and significant power differentials that are embedded in societal institutions.

In this post I hope to illustrate the usefulness of explicitly considering these alternative frames of reference as a way for thinking about discrimination and (institutional) racism, especially with respect to the limitations of some perspectives.

In the neoliberal egoist employment relationship with perfectly-competitive markets and self-interested agents, discrimination on any basis except economic value should not exist because those who discriminate would face a competitive disadvantage, and market competition would force them to change or go out of business. But perfectly-competitive markets only exist in economics textbooks, and discrimination obviously exists. However, consider what happens if we make this model more realistic by recognizing that employers do not perfectly know an individual worker’s true qualities. In this case, for employers to generalize on the basis of demographic characteristics (for example, by assuming that parents of young children will be absent more frequently) can be rational behavior driven by profit-maximization (self-interest) rather than prejudice. This is called statistical discrimination.

As a concept, statistical discrimination is useful for thinking about how seemingly-benign self-interest can lead to racial and other forms of discrimination. But in reality, attempts to explain broad-based racial discrimination as statistical discrimination ignore the racism that leads to race being seen as a meaningful indicator in the first place, and overlook the inherent racism that causes the believed attributes to always be negative. In other words, when it comes to race, we should not see statistical discrimination as a benign explanation of patterns of inequality, but rather as ultimately rooted in racism.

In the unitarist school of thought, discrimination is largely ascribed to individual or organizational failings that can be addressed through improved organizational policies and practices that are voluntarily adopted. Unitarism rests on the assumption that workers and organizations have common interests that can be aligned. As such, conflicts in the workplace, including those pertaining to discrimination, are seen as resulting from the aberrant attitudes and behaviors (e.g., prejudice) of specific individuals, and that this can be improved through interventions like training. At an organizational level, high-functioning organizations are seen as those that tap into workers’ interests for mutual benefit, which leads to an emphasis on diversity management as a win-win source of organizational performance and respect for all individuals. Organizations that don’t do this are urged to recognize the so-called business case for diversity.

At its best, the unitarist organization can change individual attitudes and behaviors while giving employment opportunities to people of color. But talking about race is hard (even with the many tools available) and change is hard. Moreover, a unitarist approach places an excessive reliance on organizational self-interest and self-policing. What happens when an organization believes its business case is serving a racist segment of society, or segments its workforce along racial lines to make it easier to manage? Or if it doesn’t back up public relations statements with meaningful action or if its diversity training fails (as is often the case)? And since racism, prejudice, and structural inequalities are social phenomena, even the most well-intentioned organization can only have a limited impact.

In the pluralist employment relationship, discrimination stems from unequal bargaining power. African Americans, for example, might be (1) paid less than whites because they lack the bargaining power to get higher pay, and (2) crowded into certain occupations because they lack the leverage to break into better-paying occupations or because intentionally-constructed racial divisions can lower all workers’ bargaining power. Integration and improved labor market power, not just diversity or non-discrimination are therefore highlighted. Consequently, multi-pronged institutional changes are championed, including legislative action and labor union representation to enhance workers’ power.

Unlike the previous two approaches, the pluralist school of thought recognizes the importance of power differences across racial groups. But there are limitations. Relying on labor unions or other groups to increase the power of African Americans or other racial groups requires union leaders committed to this and able to overcome racist attitudes among the rank and file. But these are not guaranteed, especially when these institutions are embedded in a society marked by racism. In other words, the pluralist approach focuses largely on the labor market, which makes it inadequate to address racism and labor market inequalities that go beyond the labor market. For example, even though many aspects of the 1930s New Deal were worker-friendly, the New Deal’s Federal Housing Administration created racially-segregated neighborhoods by making restrictive racial covenants a condition of receiving subsidized mortgages. The result of this segregation often persists today, and continues to make it more difficult for non-whites to access good jobs in the predominantly white suburbs. So a pluralist focus on the labor market doesn’t do enough to uncover why there are power differences between whites and people of color, and fails to redress systemic racism. As with the unitarist perspective, important initiatives can emerge, but they are inadequate by themselves for combating institutionalized racism.   

Which brings us to critical schools of thought on the employment relationship in which inequalities between a dominant elite and others are rooted in a number of social inequalities, such as education, housing, banking and loans, health care, media, and political and judicial influence. The dominant elite, therefore can use these material and normative advantages to maintain its dominance, which includes controlling access to good-paying jobs. This way of thinking can be applied to various fault lines such as class and gender, but of particular relevance to racism is critical race theory which focuses on racial divisions and the ways in which whites have systemic advantages that go beyond the labor market.

Of the four conventional schools of thought on the employment relationship, the critical race theory wing of the critical school is the most powerful lens for considering institutional racism because it prompts us to consider the ways in which labor market discrimination is deeply connected to other key aspects of society that are material as well as normative. Consequently, redressing racial inequalities requires deep structural reforms that move beyond formal equality or corporate diversity programs. Genuine equality and inclusion requires re-defining society’s values and aggressively opening up good-paying jobs to traditionally disadvantaged workers. And this perspective deepens the traditional pluralist thinking on labor market segmentation by revealing the complex roots of segmentation that reside outside of the usual employment relations actors, such as racialized patterns of education, housing, and health care. So opening up good paying jobs requires addressing these underlying inequalities which means confronting the racist origins of these differences.

In closing, as part of broader personal reflections and conversations about race, I hope that these perspectives are useful for thinking about discrimination and racism at an individual as well as societal level. From an individual level, for example, whites can ask themselves whether they are trying to justify decisions on the basis of statistical discrimination and what not-so-apparent advantages they’ve benefited from. At a societal level, we can ask what are the roots of racial inequalities and what’s needed to redress them.