Much criticism has been directed at labor arbitration over the past few weeks. Some public officials and opinion columnists contend that labor arbitration represents a serious obstacle to police chiefs who want to fire bad cops. A recent commentary stated that the role of labor arbitrators in police disciplinary matters makes it “nearly impossible for law enforcement leaders to rid their departments of violent, lawbreaking officers” (“End collective bargaining, arbitration, indemnity,” June 10). Some have called for the abolition of arbitration in police cases, and a few have even urged a ban on all public sector arbitration.
But is this criticism accurate? Here are the salient facts about labor arbitration.
What is labor arbitration? Labor arbitration in this context constitutes a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decisionmaker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.
Who are labor arbitrators? Labor arbitrators are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.
Do arbitrators make it nearly impossible to fire bad cops? In 2015, two faculty colleagues and I published a book reporting on the largest empirical study of arbitration outcomes ever undertaken. The empirical study examined more than 2,000 discipline and discharge decisions issued by Minnesota arbitrators over a 20-year period. The study found that arbitrators upheld discharge decisions in more than half (52%) of all cases. Unions, meanwhile, won reinstatement and full back pay in 20% of the cases. The remaining 28% of cases resulted in “split” decisions in which discharges were reduced to some lesser form of discipline such as a suspension with loss of pay.
But what about police arbitrations? One of our students published a 2016 article in the American Bar Association Journal of Labor and Employment Law in which he reported on an empirical analysis of police arbitration outcomes over a four-year period. His findings for police cases were remarkably similar to our findings for discipline and discharge cases in general. He found that arbitrators sided with police chiefs in upholding terminations in 53% of all cases. He found that unions fully prevailed in 23% of cases and that split outcomes constituted 24% of all cases.
Why do arbitrators modify some discharge decisions? Our empirical study also examined arbitration decisions in order to ascertain an arbitrator’s rationale for modifying some discharge decisions. We found that arbitrators were primarily motivated to modify a decision by three factors: 1) finding that the alleged misconduct committed by a fired employee was nonexistent or not as severe as alleged; 2) mitigating factors such as a long and good work record and 3) due process concerns such as a faulty investigation or imposing punishment that is inconsistent with prior similar cases.
What is the alternative to arbitration? Arbitration generally is viewed as an alternative to litigation and labor strife. If labor arbitration is abolished, the two principal alternative ways to deal with discharge decisions are to permit court-based challenges to such decisions or to make such decisions unreviewable. Each comes with some societal costs.
Court-based litigation is slower and more expensive than arbitration. Allowing a chief’s behavior to go unchecked may mask outcomes that are unfair or discriminatory and could potentially engender walkouts or other disturbances.
By laying out these facts, I do not mean to urge a particular political outcome in the current debate. But, I think that real facts should inform that debate. Among those are the fact that arbitration does not preclude the termination of a bad cop. And that the elimination of labor arbitration would not be cost-free.
Stephen F. Befort is a professor of law at the University of Minnesota Law School and a part-time labor arbitrator.