On December 22, the New York Times published an article entitled, “How Cities Lost Control of Police Discipline.” To someone reading the story without an understanding of labor relations and the arbitration process, the message was clear: the ability of police unions to access labor arbitrators allows brutal police officers to remain on the streets. The article, either intentionally, or, more likely, due to preconceived notions, creates a false picture of how labor arbitration works under police contracts.
The article quotes, albeit briefly, union labor attorney Will Aitchison. Aitchison not only practices law, but he also publishes excellent articles, runs seminars, and puts out a monthly podcast – all covering public safety labor law. For those who do not subscribe, I heartily recommend his web site, through which you can access the excellent materials he produces. A number of my colleagues at Sandulli Grace have presented at his seminars.
But, back to Aitchison and the Times article. In his most recent podcast, Atty. Aitchison explains the real story behind his interviews with the reporters who wrote this story. He spent hours with them, trying to explain, from the perspective of a union lawyer with decades of experience representing police unions, that arbitration is hardly the panacea for unions as it is portrayed. He explains in the beginning of this podcast that he told them, yes, unions win about half of the police arbitration cases; just as unions win about half of the firefighter, teacher, or sanitation worker arbitrations. But what that statistic ignores is the 95% of discipline cases that never get to arbitration, either because they are settled or because the union agrees with management that the assessed punishment was fair and with “just cause,” the contractual standard for most discipline arbitration cases. Yet, much to his frustration, this fundament point he conveyed to the reporters never made it into the story. Even a follow up letter to the editor has yet to see publication.
I, too, have been representing unions, many of them police, but also teachers, firefighters, security guards, and many others, for over 35 years. In general, there’s nothing magical about police contracts. They differ little, in their essentials, from other public sector union contracts. They all require employers to have “just cause” to suspend, demote, or discharge employees. If the union believes the punishment imposed lacks that just cause, they have a right to present their case to a neutral labor arbitrator. These arbitrators are mutually selected by the employer and the union. They are neutral people, usually lawyers, with expertise in interpreting labor contracts. After hearing both sides, they decide whether management fulfilled its responsibility to show that it had the requisite just cause to take away someone’s job. The process is the same whether the employee is a teacher, a firefighter, or a police officer. As Aitchison explains, the vast majority of the discipline of police officers never gets to an arbitrator: it is either resolved through the grievance process or the union does not contest that the “punishment fits the crime.”
The Times article, along with virtually all of the ones I’ve seen on this topic, is based on a fundamentally flawed assumption: police management is always right, or at least trying to “do the right thing.” This is a fallacy. There are good police administrators who really do try to manage their workforce fairly, but there are many who are motivated by various biases. These include political favoritism, racial and gender bias, and a general view separating employees into “good guys” and “bad guys.” The misdeeds of the “good guys” are overlooked, while those of the “bad guys” are punished. This is why we have arbitration: to bring an outside, neutral force to act as a check on management. This works the same way for police unions as it is does for all unions.
As labor attorneys and others in this field know, without a union contract, a worker has few rights. They can be fired for any reason except an illegal one, such as for their race, age, sex, or some other category given legal protection. But these laws only protect a very small number of cases. Unions exist not just to fight for higher wages and benefits, but also to fight for contracts that give members at least some modicum of job security. As central to religion as is the concept of loving one’s “neighbor as thyself” so in union contracts is the paramount principle that just cause protects employees from unjustified loss of their job. But, as if often said, never let the truth get in the way of a good story.