Monday, July 27, 2020

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?

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