Black and Blue Police Arbitration Reforms

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on addressing workplace discipline for police officers. Instead, after Floyd’s death, several politicians and public employers, including many of the police leaders in Minnesota, complained that their police disciplinary actions prove ineffective when police unions appeal to labor arbitrators who reverse disciplinary actions approximately fifty percent of the time. This attack on labor arbitrators proceeded at a breakneck pace as Minnesota passed legislation and other states have considered similar actions to prevent the parties from selecting arbitrators. The assumption guiding these changes reflects an unsubstantiated claim that police labor arbitrators decide in favor of officers approximately half the time so they can continue to be selected by the parties. The acceptance of this attack on police arbitrators reached a crescendo with an October 3, 2020 call for reform by the editorial board of the New York Times arguing that labor arbitration should be abolished in all police disciplinary matters. Empirical studies suggest that police disciplinary actions warrant reversal by arbitrators due to department errors and procedural limits imposed by civil service and union contract provisions. Arbitrators must adhere to these limits in proceedings offering little public transparency based upon parameters set by the parties. After seeing little to no literature defending police arbitrators, this Article embraces police arbitration and offers reforms that give Black police officers a voice in an overall more transparent process. This Article also proposes that the parties negotiate agreements to consider public values to deliver a win-win result to transform what can be understood as just cause for a disciplinary action in a police labor arbitration where race matters