Employment arbitrations: Too many wins — or too few?

As the nation celebrates Labor Day, a recent compilation showing that discharged police officers in Minnesota regain their jobs nearly half the time in arbitrations brought through their unions has stirred discontent.

The revelation, reported this summer in the St. Paul Pioneer Press and debated in the Opinion pages of the Star Tribune, was derived from review of the past five years of decisions of arbitrators associated with the well-regarded state Bureau of Mediation Services (BMS). It reflected that 17 of the 37 hearings, about 46%, overturned terminations of police and sheriff's personnel.

That figure has generated apoplectic reactions from some quarters. There should, to be sure, be consternation that close to 50% of discharges of law enforcement personnel, primarily police, are overturned. But that dismay is misdirected. Rather than lamenting the high rate of disciplinary reversals, observers ought to be chagrined that roughly half of all terminations of cops are wrongful. That's the real lesson to be learned from these statistics.

There are, as a threshold matters, some flaws in the reported figures. First, they are incomplete. Because it reflects only BMS arbitration rulings, the count does not encompass a large number of police firings or other substantial disciplinary actions, such as long-term suspensions, that take place outside of labor union bargaining agreements or that unions (or their members) chose not to contest, for whatever reasons.

The statistical survey also does not take into account threatened or actual discharges that lead to resignations, medical-based retirements or similar departures of the particular personnel.

Inclusion of these figures, which are not readily available, would lower the nearly 50/50 rate of reinstatements that some critics find so loathsome.

Moreover, the cop-reinstatement rulings are not far out of line with other arbitral results. About the same percentage, 48%, of BMS arbitration decisions in nonlaw-enforcement cases favor unions and their members. This accords with generally accepted figures for private-sector arbitration proceedings, which yield close to a 50/50 split between management and employees.

The arbitrators who render these reinstatement rulings, or uphold the firings, are experienced, trained, neutral parties mutually selected by the parties — unions and management alike — and have no vested stake in the outcomes.

They generally are akin to baseball umpires, calling them as they see them, as the saying goes. Lambasting the outcomes is like losing baseball teams blaming the defeats on the umpire; it might be true in particular cases, but overall it's a pretty lame excuse.

But those who bemoan the arbitration process really have more in mind. They would like to see unions with diminished power — and presence — in the workplace in Minnesota and elsewhere. This dilution of authority extends beyond police circles to the private sector as well, where the arbitral process for those in unions, about 15% of the workforce, also exists and yields comparable results.

That, incidentally, is what is occurring at the federal level, where the majority conservative wing of the Supreme Court last year ruled that public-sector union members need not pay dues to their unions. That ruling, in Janus v. AFSCME, could severely impair unions in obtaining the resources and clout to do their jobs effectively.

To compound the calumny, the two main federal administrative agencies that deal with labor matters, the Department of Labor and the National Labor Relations Board, have negated or revised existing rules and regulations as well as devising new ones that crimp the ability of unions to organize, gain footholds in the workplace and provide guidance and protection to workers.

Instead of bemoaning the darkness, here are some recommendations to repair a system that perpetrates and perpetuates such a high rate of injustice:

• Creating internal-review boards with businesses or governmental entities comprising management and employees, who often are as tough or more so than managers on fellow miscreants, would minimize the large number of wrongful terminations that seem to plague both public- and private-sector workplaces. It could be coupled with streamlined appeal procedures.

• Encouraging more and better training programs and warnings for personnel would also help.

• Enacting laws giving employees, particularly the 85% who are not unionized, more rights could also curb abusive terminations.

Sure, the high rate of arbitral reversals of discharges is a matter of concern and warrants reforms. Yet, it's not because it reflects that too many employees are being inappropriately reinstated to their jobs; it's that too many of them are being improperly removed from them.

Marshall Tanick is a constitutional and employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.