Police Unions, Labor Law, and Reform: Collectively Bargaining Away Public Policy Decisions and Individual Constitutional Rights

*Patrick Brooks

Police unions are the single greatest obstacle to long overdue policing reform in the United States, which has been vehemently demanded in recent months.[1]  Roughly thirty-three states provide collective bargaining rights to law enforcement through statutes informed by the National Labor Relations Act (NLRA).[2]  Under the NLRA, and most state statutes, collective bargaining rights include the power to negotiate not only wages and hours, but also the excessively broad scope of contractual language considered “other terms and conditions of employment.”[3]  An expansive read of these vague statutes allows police unions to negotiate troubling provisions into their collective bargaining agreements (CBAs), which in turn impede transparency, accountability, and reform.[4]

While the intersection of powerful police unions and attempts at meaningful reform is multifaceted, there are specific ways these unions use labor law to resist change at all levels.[5]  Increased collective bargaining capacity for police unions correlates with an alarming increase in civilian deaths stemming from police conduct.[6]  When Florida deputies gained collective bargaining rights, incidents of violent misconduct increased by about forty percent.[7]  The power of police unions to collectively negotiate extraconstitutional protections for officers must be considered in attempts to create meaningful policing reform.[8]

I. Collective Bargaining Agreements as Blockades to Transparency, Accountability, and Reform.

Stephen Rushin, Assistant Professor at the University of Alabama School of Law, provides a thorough analysis of 178 police CBAs, which shows that eighty-eight percent of them contain provisions that thwart transparency and accountability.[9]  Rushin’s analysis uncovers seven types of problematic terms: (1) delaying officer interrogation after suspected misconduct; (2) providing officers access to evidence prior to interrogation; (3) limiting access to officers’ disciplinary history; (4) limiting length of interrogation or establishing statutes of limitations; (5) limiting the investigation of complaints filed against officers anonymously; (6) limiting civilian involvement; and (7) allowing or requiring arbitration for disciplinary sanctions.[10]  These provisions limit the ability of municipalities, police chiefs, and police commissioners to uncover and manage the misconduct of officers in a manner that exceeds the scope of ensuring fair disciplinary processes remain intact.[11]

Police union contracts are a core cause of the incidents that sparked current demands for reform.[12]  For example, the officer who was fired, arrested, and charged with the murder of George Floyd was a member of the Minnesota Police and Peace Officers Association.[13]  The Louisville officer terminated for killing Breonna Taylor belonged to the River City Fraternal Order of Police.[14]  Both officers faced prior allegations of misconduct, and yet continued to serve until their involvement with these tragic events.[15]  George Floyd and Breonna Taylor are just two names that protestors display on signs calling for justice in the wake of their deaths.[16]  Since 2015, at least 10,397 individuals in the United States were killed during interactions with law enforcement.[17]

Many unionized police officers appear to have no fear of consequences from brutalizing reactive protestors because they know how difficult their contracts make investigations, let alone discipline.[18]  Even the voices of sympathetic fellow officers and supervisors are suppressed.[19]  CBAs “have essentially turned the code of silence into official policy.”[20]  While there may only be a few “bad apples” on the police force, the majority of law enforcement officers––who inevitably know of their misconduct––are made to be complicit.[21]  The “Blue Wall of Silence,” mortar to police CBA bricks, inhibits investigations and corrections within departments as a tight-lipped culture intensifies the effects of protective contractual terms.[22]

The federal government has authority to bring civil suits against any government entity, with hopes of remedying unconstitutional policing and mandating reform through consent decrees.[23]  In these suits, police unions commonly file motions to intervene and labor-related grievances “in an effort to assert their collective bargaining rights or simply obstruct the process” and in doing so, “have delayed reform implementation efforts.”[24]  “Those communities on the brink of receiving relief should not be waylaid for the sake of purported collective bargaining rights.”[25]  Police CBA terms also limit which reforms can be required by federal consent decrees, acting as a layered “roadblock to federal reform efforts.”[26]

II. Labor Law Should Not Impede Progress.

There are existing, legitimate legal reasons why police unions should not be able to collectively bargain such effective impediments to reform.[27]  Ayesha Hardaway, Assistant Professor at the Case Western University School of Law, astutely advances the “managerial-function standard” as a mechanism for courts to limit the scope of negotiable issues in police CBAs.[28]  “[M]anagerial prerogative and public policy limitations render certain subjects not suitable for negotiations.”[29]  All seven categories of problematic CBA terms identified by Rushin are likely managerial policy decisions and, as such, should not be negotiated under the guise of “other terms and conditions of employment.”[30]  

In 1964, the Supreme Court explained that management decisions are not “conditions of employment” subject to negotiations with unions in the private sector.[31]  Hardaway shows that analogous unions in the public sector have an even stronger reason to be excluded from negotiating terms related to management decisions.[32]  Police unions should not even consider the negotiations on Rushin’s seven categories, because “[i]t is a managerial function of government to set the policies and procedures of their police departments.”[33]  At least one court already took this step and found that policies related to discipline are non-negotiable terms for police unions.[34]

Municipalities negotiating with police unions are obligated to uphold the constitutional rights of their constituents, but instead, they allow these rights to “be forsaken because of collective bargaining provisions.”[35]  The George Floyds and Breonna Taylors of the United States should be protected by the Fourth Amendment, entitled to equal protection, and afforded due process of law.[36]  Unionized officers should fear the consequences of brutalizing any American exercising First Amendment rights.[37]  “This nation is devoted to freedom, to combating racial discrimination, and to making government accountable to the people.”[38]

III. Legislative Action Required for Policing Reform.

With intensified and wide-spread demands for reform, now is the time for legislators to intervene and prohibit police unions that collectively bargain from creating significant barriers to change.[39]  States should amend public sector labor laws to increase police transparency, accountability, and receptivity to reform while relying on existing due process assurances to protect officer interests.[40]  States should mandate parameters for the imprecise “other terms and conditions of employment” by implementing or strengthening statutory delegation of management decisions outside the scope of topics to be negotiated with police unions.[41]

Professors Catherine L. Fisk and L. Song Richardson of the Irvine School of Law wisely state that “simply taking some issues off the negotiating table is not a solution to the problem of police misconduct” and call for marshalling support of the labor force while implementing change.[42]  They advocate minority union bargaining to garner support from sympathetic officers for changes striving to achieve “transparency, accountability, and constitutional policing practices.”[43]  Traditionally, only one union chosen by a majority of the officers negotiates the CBA for all the officers represented and that union might not account for the interests and viewpoints of those in the minority.[44]  Allowing these unrepresented voices to be heard would also require amending state labor laws.[45]  Fisk and Richardson advocate “proportional representation” and an incorporation of identity-based groups to ensure that “the majority union does not systematically overlook the interests of minorities.”[46]

IV. Conclusion

Police unions should not be abolished but amendments to public sector labor laws are an essential step in the march of social progress, as police union negotiations “necessarily include, at least morally, a third party ––the public, the taxpayer.”[47]  State labor laws must clarify negotiable “other terms and conditions of employment” to keep managerial policy decisions off the table and protect the constitutional rights of every American citizen.[48]  It is painfully clear that change needs to occur within the system, and these recommendations are just one vital bullet on a long list of reforms necessary to create a workable solution.

*Patrick Brooks is a second-year day student at the University of Baltimore School of Law, where he is a staff editor for Law Review.  Patrick is a legal intern with the Solicitor’s Office at the Federal Labor Relations Authority in Washington, D.C., and a law scholar for Professor Jamie Abrams’ torts course.  Last summer, Patrick also worked as a research assistant for Professors Nancy Modesitt and Daniel Hatcher.  Labor & employment law is a practice area he is passionate about, but Patrick is open to other interesting and challenging legal work as well.  

[1]           Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 712, 748 (2017).

[2]           Ayesha Bell Hardaway, Time Is Not on Our Side: Why Specious Claims of Collective Bargaining Rights Should Not Be Allowed to Delay Police Reform Efforts,15 Stan. J. C.R. & C.L. 137, 172 (2019).

[3]           See id.; 29 U.S.C. § 158(d).

[4]           See Stephen Rushin, Police Union Contracts, 66 Duke L.J. 1191, 1239–40 (2017).

[5]           Id. at 1241.

[6]           See William Finnegan, How Police Unions Fight Reform, The New Yorker (July 27, 2020), https://www.newyorker.com/magazine/2020/08/03/how-police-unions-fight-reform.

[7]           See Noam Scheiber et al., How Police Unions Became Such Powerful Opponents to Reform Efforts,N.Y. Times, https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html (June 20, 2020).

[8]           See Fisk & Richardson, supra note 1, at 750.

[9]           See Rushin, supra note 4, at 1224.

[10]         Id. at 1220, fig.1.

[11]         See Hardaway, supra note 2, at 173.

[12]         See Scheiber et al., supra note 7.

[13]         See Sam Blum, Police Unions Wield Massive Power in American Politics — For Now, Rolling Stone(July 7, 2020, 2:45 PM), https://www.rollingstone.com/politics/politics-features/police-unions-politics-george-floyd-breonna-taylor-1024473/.

[14]         See id.

[15]         See id.

[16]         See id.

[17]         See Fatal Encounters, Database & Name Check, https://fatalencounters.org/people-search/#namesearch (last visited Nov. 16, 2020) (searched each year, 2015–2020, and compiled nationwide data).

[18]         See Blum, supra note 13.

[19]         See Fisk & Richardson, supra note 1, at 757–58.

[20]         Id. at 748 (quoting Police Accountability Task Force, Recommendations for Reform: Restoring Trust Between the Chicago Police and the Communities They Serve 14 (2016), https://chicagopatf.org/wp-content/uploads/2016/04/PATF_Final_Report_4_13_16-1.pdf).

[21]         See Finnegan, supra note 6.

[22]         See id.

[23]         See 34 U.S.C. § 12601 (original codified as 42 U.S.C. § 14141).

[24]         Hardaway, supra note 2, at 162.

[25]         Id. at 198.

[26]         See Rushin, supra note 4, at 1242–43.

[27]         See Hardaway, supra note 2, at 138.

[28]         See id.

[29]         Id. at 144.

[30]         See Rushin, supra note4,at 1220, fig.1.

[31]         See Hardaway, supra note2,at 179; Fibreboard Paper Prods. v. NLRB, 379 U.S. 203, 221–22 (1964) (Stewart, J.,concurring).

[32]         See Hardaway supra note 2, at 178.

[33]         See id.

[34]         See id. at 180; Patrolmen’s Benevolent Ass’n v. N.Y. Pub. Emp. Rels. Bd., 848 N.E.2d 448, 449, 451–53 (N.Y. 2006).

[35]         See Hardaway, supra note 2,at 195–99.

[36]         See Tomiko Brown-Nagin, Equal Justice Requires Lawmakers Reform Qualified Immunity for Police, Bos. Globe, https://www.bostonglobe.com/2020/08/13/opinion/equal-justice-requires-lawmakers-reform-qualified-immunity-police/ (Aug. 13, 2020, 3:00 AM).

[37]         See id.

[38]         Id.

[39]         See Scheiber et al., supra note 7.

[40]         See Rushin, supra note 4, at 1244.

[41]         See Hardaway, supra note 2, at 178–80.

[42]         See Fisk & Richardson, supra note 1, at 782.

[43]         See id. at 721.

[44]         See id. at 783.

[45]         See id. at 721.

[46]         Id. at 784, 788.

[47]         See Finnegan, supra note 6.

[48]         See Hardaway, supra note 2, at 195.

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