D.J. Tice is upset that the Minnesota Supreme Court upheld an arbitrator’s decision reducing a Richfield police officer’s dismissal to a three-day suspension for using and failing to report physical force in a traffic stop (“Arbitrators can’t be wrong, can they?” Feb. 24).

The city argued for overturning the decision because it interfered with the city’s “legal obligation” to enforce conduct standards for its police officers. Tice would like the governor and Legislature to “take notice” of this decision and “do something about it.” He complains the public is ill-served by not requiring deference to policymaking directives of elected public officials.

But that would require subordinating the rule of law to the dictates of the executive, something I expect Mr. Tice would normally caution us against.

A little history is important, first regarding the case, and second regarding the statute and process that led ultimately to the decision to which Tice objects. The city of Richfield did fire Officer Nathan Kinsey. Police officers in Richfield are unionized. Their bargaining agent, Law Enforcement Labor Services (LELS), negotiates on their behalf with the city to reach a written contract that lays out the rights and responsibilities of both the city and the police, vis-à-vis their employment relationship. LELS also advocates for its police officer members whom the city seeks to discipline for alleged rule violations.

In dealing with any of its unionized employees, Richfield must abide by Chapter 179A of the Minnesota Statutes, which governs public employment labor relations. Section 20 of the act requires a written contract that must include a grievance procedure providing for compulsory binding arbitration of all disciplinary matters.

Thus, the state has obligated itself and its subordinate governing units to this process for settling disputes about disciplinary penalties a public employer imposes. Since Richfield and LELS could not agree on whether discipline was necessary or of what it should consist, arbitration was the ultimate destination, and they chose the arbitrator.

Why do these obligations exist for public employers, and how did the structure of the obligation to arbitrate occur? Because they were adopted wholesale from the already established practice of collective bargaining and contract administration in the private sector. The laws establishing the framework for private-sector collective bargaining were written in the 1920s and ’30s and modified in the 1940s and ’50s. Nothing in these laws required the arbitration of grievances. Until World War II, raw bargaining power was used to sustain or overturn an employer’s actions thought to be in violation of a contract.

Unions occasionally struck to enforce their position. During World War II, strikes were outlawed to sustain industrial output to support our military forces, but arbitration of unresolved contract disputes was required as a quid pro quo to provide a forum for finally resolving conflicts. This practice was found by both labor and management to be beneficial, and the practice was written into virtually all labor agreements negotiated since. Private-sector voluntary practice was codified into mandatory public-sector practice in Minnesota (and many other states).

Many complex private contracts provide that if the parties cannot agree on how it is to be interpreted, an arbitrator will be chosen to hear the positions of each, study the contract and rule on what the parties are entitled to under the agreement. The rules under which arbitrators operate are codified in the Federal Arbitration Act of 1926.

Courts at every level virtually uniformly defer to the awards of arbitrators given their expertise and knowledge of the cases they decide. In the Richfield case, the arbitrator heard five days of testimony presented by the city and union to analyze before writing a 40-page decision detailing the reasoning behind the award.

Arbitral decisions are overturned by courts only when there is an explicit conflict with laws and precedents — i.e., virtually never because arbitrators are aware of the laws governing the relationships and behaviors of the parties to the contract.

I doubt seriously, given the upheaval that took place in our eastern neighbor’s capital just eight years ago, whether Tice thinks the governor and Legislature will follow his suggestion to tinker with any part of Chapter 179. And, even in Wisconsin, the seismic changes in public-sector labor relations did not include any significant changes in statutory rules for handling disciplinary grievances.

The time for codifying how police discipline should be handled was 1971 when public employee labor law was enacted. The rule of law and the jurisprudence supporting it made the Supreme Court’s decision in Richfield’s case easy — even though the result was not what Tice thought appropriate.

It was, however, an example of how the established employment relations system operates in a codified and precedent-following manner to resolve conflicts without the need for disruptive actions and for the most part to enable parties to understand why their conduct was or was not permitted under the agreement they had negotiated.

 

John A. Fossum, of Edina, is a retired professor of human resources and industrial relations.