Floyd killing shows police unions abuse power. We need radical reform: Former union lawyer
Unions have used collective bargaining to protect police from accountability for racist killing. Such killings are more likely and frequent as a result.
Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union.
Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability.
Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time.
Under the Minneapolis police contract, any disciplinary action that does not result in punishment must be removed from an officer’s record. Even in cases where an officer is fired for misconduct, the agreement requires an appeals process that frequently leads to reinstatement, especially if the investigating agency has committed procedural errors. Police collective bargaining agreements, in short, insulate cops from discipline.
Unaccountable for racist killings
I have spent my career working in and around the labor movement, first as a lawyer for a community-based workers center, then in the general counsel’s office of a major labor union, and for the past dozen years researching and teaching labor law at Harvard. I am of the firm belief that unions are the single most important and effective voice for working people we have ever known and the best chance we have for building a more equitable economy and politics. In recent years, collective bargaining has enabled teachers to win funding for their classrooms, fast-food workers to increase the minimum wage, and nurses to negotiate staffing ratios that have helped ensure adequate care for COVID-19 patients. Collective bargaining is, in my view, a treasure that deserves fierce protection.
Nonetheless, collective bargaining is, at bottom, just a tool. And like all such tools, it can be abused. When unions use the power of collective bargaining for ends that we, as a democratic society, deem unacceptable it becomes our responsibility — including the responsibility of the labor movement itself — to deny unions the ability to use collective bargaining for these purposes.
We have done this before. When unions bargained contracts that excluded black workers from employment or that relegated black workers to inferior jobs, the law stepped in and stripped unions of the right to use collective bargaining in these ways.
The killing of George Floyd and the events of the past week require us to recognize that police unions have abused the power of collective bargaining in indefensible ways. These unions have used collective bargaining to protect their members from accountability for racist killing. And, in doing so, they have made such killings more likely and more frequent.
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We now know that the extension of collective bargaining rights to Florida sheriffs’ offices led to an estimated 40% increase in violent incidents among sheriffs’ offices that elected to unionize. A study using data from America’s 100 largest cities found that police protections created via union contract were significantly and positively correlated with the killing of unarmed members of the community.
A forthcoming paper finds that the introduction of collective bargaining rights for police officers between the 1950s and 1980s led to substantial increases in police killings of civilians with disproportionate impact on racial minorities.
Ban police bargaining over discipline
If we are committed to building a more equitable economy and society, now is the time to demand that the power of collective action not be available to unions who would abuse it in this way. One way to do this would involve amending public sector bargaining laws to strictly curtail the range of subjects over which police unions have the right to bargain. The law, in brief, would permit collective bargaining by police only with respect to matters related to wages and benefits. Collective bargaining over any subject that implicates the use of force, including collective bargaining over disciplinary matters, would be prohibited.
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Figuring out the right approach to fixing the law of police unions demands immediate attention, and will be a focus of research at Harvard’s Labor and Worklife Program. This work, moreover, must take place alongside broader ongoing discussions about the future of police and policing. Whatever approach we take to the police union question, however, reforms must be focused on the problem to be addressed — namely, police misconduct and violence.
Police union reform cannot become a stalking horse for those with a political agenda to attack public sector unions generally. It cannot become a means to undermine the incredibly valuable work these other unions do to advance the interests of teachers, nurses, sanitation workers and public servants of all kinds. Even so, changes to the law governing police unions are absolutely necessary, and they must be robust enough to enable radical reform of police practice.
Benjamin Sachs, a former assistant general counsel of the Service Employees International Union, is the Kestnbaum Professor of Labor and Industry at Harvard Law School. Follow him on Twitter: @bsachs. This column was adapted in part from a blog post at onlabor.org.
