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In defense of police collective bargaining

Unions and arbitrators do not make it impossible to fire bad cops.

Rank-and-file Chicago police officers on Friday ratified a new contract.
The Fraternal Order of Police Chicago Lodge #7 building, at 1412 W Washington Blvd.
Sun-Times Media

Mayor Lori Lightfoot has reason to celebrate the approval of the contract terms imposed by an arbitrator on the city and the Chicago Police Benevolent & Protective Association.

The PBPA represents the Chicago police sergeants and lieutenants. This contract will pressure the Fraternal Order of Police, which represents some 8,000 Chicago police officers, to adopt similar reforms to the discipline and investigation processes. If the FOP contract goes to interest arbitration, an arbitrator could be swayed by the PBPA agreement.

The contract doesn’t satisfy many progressives and activists, who want to restrict or eliminate police collective bargaining. We don’t discount the real problems that exist, but gutting collective bargaining rights will not solve them.

The arguments often made that police unions make it impossible to fire bad officers sound disturbingly like the calls from conservatives to eliminate collective bargaining for all public employees. Conservatives argue that public employee union contracts block needed innovation and reform, and prevent employers from firing bad employees.

Some say police collective bargaining institutionalizes racism. But that same charge is made by conservatives against teacher unions. They claim teacher unions impede reforms that would benefit poor children of color in the worst performing schools, and preserve those schools as places to dump teachers who unions render impossible to fire.

Some procedural protections for police may be overly robust, but others attacked by critics are common. For example, police union contracts provide for removing discipline actions from an officer’s file after, typically, one to three years, if the officer has not had any further discipline. This is common in union contracts and provides incentives for employees to correct their misbehaviors.

Unions and arbitrators do not make it impossible to fire bad cops. A leading study found that the rates at which police terminations were overturned among 36 different law enforcement departments ranged from 0 in several to 70% in San Antonio. All told, of 1,881 officers fired for misconduct, just over 450 were reinstated, about 24%.

In many jurisdictions, terminations are reviewed by police commissions or merit boards whose members are appointed by the mayor or county executive. When terminations are overturned by arbitrators, it is often the result of management errors, such as terminating one officer for misconduct after suspending a different officer for the same misconduct. Management should not be given free rein to play favorites when administering discipline.

Critics of police collective bargaining point to a recent University of Chicago study that found a 40% increase in violent incidents where collective bargaining rights were extended to Florida deputy sheriffs. But the 40% increase was due to the baseline rate of violent incidents being so low. The study estimated that bargaining rights for deputy sheriffs would increase violent incidents per agency-year by 0.2. The baseline was a previous mean of about 0.5, making literally a 40% increase. But that means this study estimated that with collective bargaining rights an additional one officer in an average sheriff’s office of 290 was involved in a violent incident every five years.

Law enforcement can learn a lesson from school districts and teacher unions that have voluntarily partnered to improve education. For example, teacher evaluations need not be bargained, and in most jurisdictions the administration unilaterally imposes evaluation criteria. Principals observe teachers in classrooms, rate them and, after a few unsatisfactory ratings, move to fire them. It’s not surprising that teacher unions pull out all the stops to protect their members from criteria and a process unilaterally imposed by management.

But many school districts have engaged unions in evaluation systems, even without a legal duty to do so. They have jointly developed evaluation criteria and implemented peer evaluation. In many of these districts, the rates of improvement and attrition of poorly performing teachers are higher than in districts employing traditional approaches. The union’s role is transformed from protecting members at all costs from a process unilaterally imposed by management, to protecting the professional standards that the union itself was involved in developing.

The idea of partnering with unions is probably anathema to most police chiefs. And it is easier politically for union officials to play to rank and-file feelings that they are under siege than to engage in meaningful cooperation with management. But with calls to defund police departments and to eliminate police collective bargaining, both labor and management may feel they are facing existential moments and have some incentive to come together to address that.

Such a partnership should include what highly respected law enforcement professionals have advocated: root cause analysis to review deadly force incidents to reduce systematic errors that contribute to tragic loss of life. Instead of city leaders blaming the union and union leaders stoking rank-and-file siege mentality, both might learn from school districts and teacher unions and partner on root cause analysis, involving other experts and community leaders as well.

Doing so will not be easy, but the rewards can be significant for the city, union, police officers and the public.

Martin H. Malin is professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law, Illinois Institute of Technology. Joseph E. Slater is the Eugene N. Balk Professor of Law and Values at the University of Toledo College of Law. They are two of the co-authors of the leading law school textbook on public sector employment.

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