Less than a month ago, police unions sat, with comfort and arrogance, atop the power pyramid of this country’s labor movement. Through campaign contributions and endorsements, they curried favor with the politicians who legislate and negotiate their working conditions. They won job protections most private sector union members could only dream of.
Then, in the eight minutes and 46 seconds it took Minneapolis police to kill George Floyd, all that leverage and power went poof. It may have been the quickest power reversal in labor history.
Calling for profound structural changes in policing, Minneapolis Mayor Jacob Frey said the first step is to deny police officers the right to bargain collectively. Black Lives Matter and at least one national labor union have called on the AFL-CIO to kick all police unions out of the country’s labor federation. Scores of progressive commentators have jumped on this binary bandwagon, insisting on the elimination of cop unions (here, here and here).
I will argue here that the choice is not binary, and that there are far better fixes for this mess than to deny collective bargaining rights to the 800,000 workers – including 175,000 people of color – who police the streets of this country.
Negotiating over employment terms – things like pay, vacation, insurance, discipline and a grievance procedure – is hardly the source of our policing problem. Collective bargaining is content neutral; it is a process, not a result. The content of the agreement produced by that process is largely determined by how much power each side has.
Mayor Frey’s frustrations are understandable. Minneapolis’ police union is led by a macho, right wing zealot whose resignation has been demanded by state and national labor leaders. (Unfortunately, democracy – in a union or a country – is no guarantee that the elected leader won’t be an idiot.) Yet, Frey was being irresponsible and disingenuous when he said collective bargaining had to be abolished in order to achieve meaningful police reform. He, or someone on the city’s behalf, agreed to accept a contract he now says was a bad deal.
So Mr. Mayor, instead of burning down the union hall, negotiate a better contract. The power dynamics couldn’t be better for him, and for other cities that want to make it easier to rein in errant cops. A month ago, that wasn’t the case. The power of police unions flowed from law enforcement’s generally high police favorability ratings. That, in turn, placed a high value on police union endorsements from public officials involved in negotiating contracts and writing laws. That meant powerful leverage for police unions.
And they used that power well. Discipline language in police contracts (here and here) goes far beyond the basic standard of fairness and due process used in most private sector labor agreements. For example, many police contracts purge prior discipline from an officer’s record. That means an arbitrator deciding whether to uphold discipline for excessive force will be barred from giving any weight to prior acts of brutality. Other provisions require cops accused of misconduct to be given days or weeks to prepare for an internal investigative interview. Some contracts prohibit a civilian review board from meting out punishment, and others require police management to complete an officer’s investigation within a defined time period. Since an arbitrator’s job is to enforce the contract, many have overturned discharges on the basis that contractual disciplinary procedures were not followed.
In the three weeks since George Floyd’s murder, the pendulum has swung far and wide, from police union power, to a national consensus favoring massive structural changes in policing. Polling shows that a substantial majority of Americans support recent protests and want meaningful police reform. This overwhelming change in public opinion has pulled even Senate Republicans out of their comfort zone. Almost overnight, they developed a sudden dim view of the choke hold and no-knock warrants.
Police union leaders are going through a similar death bed conversion by realigning their goals to comport with the diminution of their bargaining power. The three largest PD unions in California took out full-page newspaper ads this week calling for reducing the use of the force, more officer accountability and a rooting out of racist cops. Washington, DC police union leaders signaled an interest in loosening some of the contractual restraints on management’s ability to discipline. The national president of the Fraternal Order of Police (FOP), the country’s largest police union, also expressed support for revising disciplinary rules.
The Supreme Court once referred to labor union contracts as “living documents,” meaning the parties can and should modify their agreements as conditions and circumstances change. There is no problem created by collective bargaining that can’t be fixed by more bargaining. Calling for the abolition of police unions is a grotesque overreach. More than 90 percent of most police contracts have nothing to do with the issues triggered by the murder of George Floyd. They cover such matters as pay, clothing and equipment allowance, work schedules, vacations, holidays, sick leave, insurance benefits and drug and alcohol testing.
The policing problem now before the country, of course, goes far beyond a few incorrigibly abusive officers. The “defund the police” rhetoric of Black Lives Matter, and others, speaks wisely to a need to completely reimagine the role of dealing with public safety. Why would we want to break all of the police unions before doing the reimagining? Wouldn’t it be better to involve them in helping to alter the paradigm so that whatever we call them – cops, public safety specialists, social workers, facilitators – they will have an ownership stake in the change?
There has never been a better time to rewrite police disciplinary rules. The old ones were products of a different era, if only weeks in the past. The union power propelling those lopsided agreements has turned into a public mandate for deep structural police reform.
As a retired union negotiator, I remember what it feels like to go to the bargaining table with less power than you’d like. I also know that the choice in those circumstances is clear: Sacrifice the merely nice in order to hang on to the essential. In this case, that means union concessions on disciplinary rules in exchange for the right to continue bargaining collectively.
That would be a win for both sides, and for the rest of the country.
Thanks for your many insights, Bruce.
In the end, it is always about leadership.