Excerpted From: Michael Z. Green, Black and Blue Police Arbitration Reforms, 84 Ohio State Law Journal 243 (2023) (311 Footnotes) (Full Document)


MichaelZGreenOne of the most high-profile examples of racial unrest in policing occurred on May 25, 2020, when a forty-four-year-old white male Minnesota police officer, Derek Chauvin, and three other officers arrested a forty-six-year-old Black male, George Floyd, for alleged forgery in using a fake twenty dollar bill. Floyd died while on the ground after being handcuffed in Chauvin's police custody and stating to Chauvin and the other officers involved that he could not breathe. A videotape of the senseless death of Floyd sparked an international level of protests for racial justice in policing after Chauvin was shown pressing his knee against the back of Floyd's neck for more than eight minutes until Floyd's subdued and lifeless body eventually expired.

With the existing Black Lives Matter (BLM) movement already highlighting certain killings of Black persons by police officers as a racial concern, massive protests seeking racial justice and police reform surged in many cities within the United States. The protests became a daily occurrence after the video of Floyd's death demonstrated the utter disregard for this Black man's life in a way that was “too timely, vivid and undebatable to ignore.” The raw trauma on the video resonated with Blacks and other races who all protested as part of an overall interest-convergence where the “dominant culture” became invested in rectifying “the disparities Blacks face in [our] country.” Between fifteen and twenty-six million people participated in BLM protests in May 2020, the month Floyd was killed.

The Floyd protests also ignited concerns among labor lawyers and workplace scholars after Lieutenant Bob Kroll, the president of the Minnesota Police Federation, the union representative of the Minnesota police officers involved in the George Floyd death, claimed that all the officers, including Chauvin, “were fired without due process” and suggested their terminations might be reversed by labor arbitrators. Kroll received criticism for these comments. Even after seeing the video, Kroll still claimed a lack of due process for the other officers involved in Floyd's arrest and death while backing off the question of whether Chauvin should have been terminated.

By suggesting the reversal of the police officers' discharges shortly after George Floyd's death, Kroll also shined a light on one specific profession: labor arbitrators. Kroll's arbitration reversal message engendered more criticism when it became clear that Chauvin had eighteen prior complaints filed against him but had only two of those result in a disciplinary action, both a reprimand. A Minnesota news story responded to Kroll's due process and arbitration comments by identifying a couple of arbitration decisions where arbitrators reinstated Minnesota police officers despite prior acts of misconduct. This story also referred to a study of Minnesota arbitration awards where the researcher found that a little “more than half of the time arbitrators side in favor of the employers who fire police officers.”

One might surmise that a mutually agreed upon dispute resolution process where both parties (unions and police departments as repeat players) with relatively equal bargaining power would be pleased to discover the results indicate that either party prevails about fifty percent of the time. But politicians and police department officials, supported by media accounts, rush to blame the arbitrator when the discipline is reversed in a high-profile case such as one involving issues alleging racial misconduct by a police officer. These officials want to shield themselves from the political fallout rather than actually address the department missteps explained by labor arbitrators in carefully crafted decisions.

These politicians and police department officials ignore the arbitrator's reasoning for their loss and focus on a general fifty percent reversal as a source of overall complaints. They also ignore the fact that unions cannot afford to bring every case to arbitration and select only those percentage of cases where they believe they have the best chance of prevailing. According to Minnesota labor lawyer, Jim Michels, “who represents police officers, firefighters and other public employees,” in a lot of instances “the union will look at the case and say, ‘yeah we think this warrants termination”’ and not proceed to arbitration, and “[t]he union only challenges the termination about half the time.”

Labor arbitrations may not have been at the forefront of those matters being targeted by policing reformers before the Floyd death. But as a result of Kroll's comments and in addition to political leaders needing someone to blame while getting the media and policing scholars and even some legislatures to join them, labor arbitrators are now being casted in a very negative light in the midst of the recent racial concerns about policing arising from the George Floyd killing. Nevertheless, those arguing for reform of the police arbitration process do not appear to have listened to the few voices being presented by labor arbitrators and labor law scholars. Nor do these antiarbitration reformers appear to be listening to those who engage in “poring through” the rationales of the arbitrators in those cases including some community activists who have examined the actual labor arbitrator decisions in detail and concluded that “at the end of the day, inconsistent enforcement and unclear policies were to blame.”

Also, those arbitration reformists do not seem to be focusing on the systemic issues leading to Black persons being subjected to police shootings at a disproportionate number that still seem to be a problem even in Minnesota almost two years later. Possibly, these reformists challenge arbitration as a black box to those outside the labor community as it represents a private and confidential process not providing much transparency. The parties' own choices as to what information may be considered by the arbitrator and shared with the public before or after an arbitration decision is rendered contributes to that lack of transparency.

This uncertainty about arbitration begs for more transparency and the allowance for more voices to be heard including those within the Black community. There is also one group of Black voices with a unique view of how to address racial concerns regarding policing: the Black police officers who must navigate roles as members of the Black community and also of the blue community. Their voices should be heard as well. This Article proposes that Black police officers, via their identity caucuses and as committed individual members of the Black communities they serve, should be given a specific voice in the disciplinary process at a publicly transparent hearing where arbitrators have been given the authority to consider community values and concerns.

This Article proceeds as follows. Part II examines the political actors and their veiled reasons for attacking police arbitrators while considering the dearth of empirical studies correlating any negative effects from labor arbitration in pursuing police officer accountability. Part III analyzes the nature and scope of how labor arbitration follows the parties' expectations as to what is just cause to discipline and suggests how the parties can engage to provide racial justice results if they can agree about the way to address it. Part IV of the Article explores the value of having Black police officer voices involved in the arbitration process including Black police identity caucuses and officers directly involved on the beat and within the communities they serve. Part V suggests specific measures the parties may choose to pursue at the bargaining table to amend typical expectations as to what establishes just cause when dealing with high profile policing issues related to race. This approach would provide arbitrators with the tools to consider the impact in the workplace and within society when some form of racial reckoning is expected when police misconduct occurs. Part VI concludes that incorporating Black voices into a transparent arbitration process can provide a system that offers racial justice and accountability while also being fair to police officers facing disciplinary actions.

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In recognizing the potential of working together in addressing matters of race and unions, the parties should look for common ground where they can agree to accountability measures regarding police discipline and improving arbitration. Any sustaining approaches must involve ongoing vigilance in getting police management and politicians working with police unions and their representatives as well as with BLM and other members of the Black community. All these stakeholders must set a goal of adopting measures that bring trust back to the community by reassuring all involved that police misconduct related to the killing of Black people will be addressed in a thorough and responsive manner. Those measures must also recognize the tremendous responsibilities and deadly challenges that the majority of excellent police officers face on a daily basis.

An important objective in that process should be attaining the goal of developing fair and transparent procedures that will protect outstanding officers while providing a prompt, responsive, final, and satisfying disciplinary penalty that will become generally accepted for police misconduct in the community. But unions and politicians, not arbitrators, will have to agree on these transparent procedures as labor arbitrators may not act without the consent of the parties. Once they do agree on these fair procedures, the use of experienced labor arbitrators, who make tough disciplinary calls all the time without being concerned about future work with these parties, would offer a just and neutral resolution.

Only after what critical race founder, Derrick Bell, referred to as “interest-convergence” starts to occur will we see the path forward to sustained change. As mentioned earlier, several commentators see the number of protesters of all races who were on the front line after George Floyd's death as indicative that a form of interest-convergence can be obtained with seeking a racial reckoning with respect to police reforms. This Article concludes that all the stakeholders, including political and municipal leaders and administrators, police chiefs and their leadership teams, municipal lawyers, police union leaders and their members, police union lawyers, civil service commissions, arbitrators, civil rights leaders, civil rights lawyers, civil rights activists, and the Black communities involved must all come together to develop mutual solutions.

If there is any group in our society that has the highest motivation and balance of converging interests, it is those Black police officers who can talk freely through the collective force of their identity caucuses and use their voices to help take the lead in racial reform issues concerning policing. These Black officers' words, deeds and pursuits about practices and discipline can help lead us all out of a regenerating path of gains resulting from hideous situations and subsequent acts of retrenchment that represent a vicious and divisive cycle in our society with no systemic changes being obtained. As the rhythm of these discussions repeats at a level of blues where all too many Black people understand its frequency, the remaining question will be: can lasting reform ever come? In dealing with the frequency of this question, this Article concludes that with the help of Black caucus police officers and with transparent arbitration processes that consider public values, the interests that have converged in response to George Floyd's death may provide a yes as an answer to that question. Then finally we can all win, potentially through a fair arbitration process, without having to keep thinking again and again about racial reforms to address police disciplinary actions.

Professor of Law and Director, Workplace Law Program, Texas A&M University School of Law.