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Police Unions Face Reckoning Over Misconduct Shields (Corrected)

June 10, 2020, 10:07 AMUpdated: June 25, 2020, 6:26 PM

Democrats’ sweeping proposal this week to curb police violence against minorities doesn’t address what’s drawn criticism from Black Lives Matter activists and management-side attorneys: union contracts that shield officers who use lethal force.

Activists have begun to focus on collective bargaining agreements that allow accused officers to resolve their complaints through arbitration behind closed doors; wait 48 hours after a lethal incident before being questioned by police, often with an attorney and a union representative present; and access information on evidence and witnesses that wouldn’t be available to civilians.

The calls for reform follow days of global protests over the death of George Floyd, an unarmed, restrained black man, after a Minneapolis officer knelt on his neck for almost nine minutes. Other videos of police violence—including an incident in Buffalo, N.Y., in which a protester was injured after being pushed to the ground—are going viral.

“None of our contracts should shield misconduct,” Randi Weingarten, president of the American Federation of Teachers, said in a phone interview. AFT represents probation officers and corrections officers in addition to teachers; Weingarten is a member of the AFL-CIO executive council, the nation’s largest labor federation that includes police unions.

“Of course we have to protect against false allegations,” Weingarten added. “But those videos in Minneapolis and in Buffalo were pretty clear. It’s hard to contravene what the naked eye could see.”

The AFL-CIO General Board Tuesday said it would maintain ties with International Union of Police Associations, resisting calls to expel the union. In a statement, the federation pledged to meet with police unions to write a “code of excellence” for officers, but made no specific mention of altering changing collective bargaining agreements

“It would be quick and easy to cut ties with police unions,” the federation said in statement. “But disengagement breeds division, not unity. This is a moment to do what is hard and meaningful and uncomfortable. And that requires building a better labor movement from within.”

Police bargaining agreements began in the 1950s, when a wave of public-sector organizing took hold in police departments. Soon after, as many as 70 more Americans a year were being killed by police—almost all of them nonwhite, said Rob Gillezeau, a professor at the University of Victoria in British Columbia who researches the effects of police unions.

“We’re not finding any increase in whites being killed by police,” Gillezeau said. “It looks like there is a discriminatory view among that population of workers, and they are bargaining for the ability to shoot nonwhite civilians without prosecution, which was a really horrible result to find.”

The Fraternal Order of Police and International Union of Police Associations didn’t respond to requests for comment.

Arbitration’s Role

Historically, local governments agreed to terms protecting officers accused of wrongdoing, largely because they had no bearing on the city budget, Gillezeau said.

As a result, some of the measures that he argues fueled police killings in minority communities became commonplace. A 2017 Duke Law Journal study also found that nearly two-thirds of the collective bargaining agreements permitted or required police departments to use arbitration to adjudicate officers’ appeals of disciplinary measures. The same study found that arbitration “almost exclusively results in reductions in disciplinary penalties handed down against officers found guilty of professional misconduct,” a conclusion borne out in multiple news-media investigations following the 2014 killing of Michael Brown, an unarmed black teenager in Ferguson, Mo.

The language of collective bargaining agreements can, in some cases, prevent police chiefs and even federal officials from moving swiftly against bad actors. In Portland, Ore., an arbitrator’s decision is “final and binding.” Activists in Minneapolis, which has similar language in its police union contract, are now demanding community participation in collective bargaining for police.

“When you have years and years of bad decisions of people not being held accountable, the precedent set by one arbitrator might then be used as an argument in a subsequent arbitration,” said Javier Morillo, former president of SEIU Local 26 in Minneapolis. “And so we are at a point that when it comes to police disciplines, my opinion is we need to hit reset. … We will never see these things stop if we don’t stop the practice of allowing cops to use excessive force and then have arbitrators decide they won’t be held accountable for it.”

Arbitration constraints also have been an issue for management-side attorneys.

“It takes an edict from the king to fire a bad cop, many times because of the union,” said Ondray Harris, special counsel with Hunton Andrews Kurth who served as director of the Labor Department’s Office of Federal Contract Compliance Programs. Harris was also deputy chief of the Employment Litigation Section at the Department of Justice Civil Rights Division during the George W. Bush administration.

During his time at DOJ, Harris said, he and other officials had a hard time taking legal action against police departments for following collective bargaining agreements, even if those agreements appeared to violate civil rights. Under federal law, courts can’t take up union matters unless they’ve first been addressed by the National Labor Relations Board, the Federal Labor Relations Authority, or, in the case of police unions, state and local public employee relations boards. The collective bargaining agreements made it difficult for police chiefs to pursue reform, even under DOJ direction.

Harris said some police departments’ hiring practices also discouraged workplace diversity by requiring physical and written tests where women and minorities scored disproportionately lower.

“How are you going to hire more women and more minorities if the union has pushed for testing requirements that have an adverse impact on women and minorities?” Harris said.

Waiting Period After Incident

It’s not uncommon for union contracts to require a waiting period, typically 24 or 48 hours, between an incident and the time an officer is interviewed. This allows officers to meet with an attorney and union representatives, who are usually present during questioning, said Benjamin Sachs, the faculty codirector of the Labor and Worklife Program at Harvard Law School.

“It allows officers time to develop a strategy to avoid accountability,” Sachs said.

Minnesota is among more than a dozen states that have codified these and other measures into law, known as an officer’s “bill of rights.” The Minnesota law gives officers the ability to access testimony from witnesses and even makes it illegal for police departments to release officer photos to the public without their consent.

But there may be a practical reason for some of these measures. Vincent Del Castillo, former chief of New York transit police and a law professor at City University of New York, said that the waiting periods are sometimes viewed as a compromise between the union and management. Without them, an officer could assert his or her Fifth Amendment right against self-incrimination to avoid being questioned at all.

“The police officer who is under suspicion of a serious offense or a crime is also a civil citizen and is entitled to the Miranda warnings,” Del Castillo said. The time limit was seen as a compromise, he added, “so that after a period of time the police officer would have to make a statement.”

“Otherwise they could just say, ‘I don’t want to talk about it,’” he said.

Last week, leaders of the AFL-CIO held a virtual press conference on policing reforms. The International Union of Police Associations didn’t attend, and union leaders were reluctant to discuss specific changes to collective bargaining agreements.

“Look, unions have black members, brown members, female members, male members, they have gay and straight members in [a] police force. Now is the time for us to engage with them more than ever,” AFL-CIO President Richard Trumka said in response to a reporter’s question. “We would like to work with those unions to create a code of excellence so that we can exemplify the best conduct that’s out there.”

So far, leaders of the union federation say they’ve had minimal contact with police unions directly, at the AFL-CIO declined to disclose whether IUPA voted in favor of the reform plan Tuesday

“There’s been some reach out,” said Weingarten, the AFT president. “But I think we’re—we’re trying to figure out a way to schedule something that’s more intentional.”

(Updated in 17th graph to reflect the NLRB doesn't have jurisdiction over public-sector unions. Story originally published June 10. )

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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