How We Can Reform Police Unions To Address Systemic Racism

Labor law experts are exploring ways to curtail the power of police unions, but any meaningful changes require political will.

The weeks of outrage after a white Minneapolis police officer killed George Floyd have made police reform feel more urgent and achievable than ever. As city and state officials across the country debate how to prevent police brutality, law enforcement unions have emerged as a key impediment to reform.

The political power of police unions has helped them secure strong job protections ― too strong, reform proponents said. Collective bargaining agreements for police often have provisions that erase disciplinary records after a certain period of time, grant police broad access to investigative files in misconduct cases and have an appeals process that can get officers rehired after unjustified shootings.

Other unionized public sector employees — such as teachers, firefighters and sanitation workers — often benefit from similar protections in their collective bargaining agreements. But those workers typically don’t end up shooting and killing Black citizens in the course of their jobs.

So what might reforming police unions actually look like?

Limiting Police Collective Bargaining Rights

One idea that seems to be gaining more currency is restricting what police unions can legally bargain for. That would basically mean rewriting state laws so that police unions have little or no say in the disciplinary process. Doing so could dramatically reduce their power at the bargaining table, leaving them to haggle over wages and benefits but not much else.

Such an idea seemed radical just a few years ago, said Stephen Rushin, who teaches criminal law at Loyola University Chicago and has spent years analyzing police union contracts. But that is no longer the case. “I’ve been surprised to see the receptivity of some folks of that idea now,” he said. “I think that’s possible.”

But the concept has shortcomings, Rushin said. Taking away police unions’ ability to bargain over discipline does not necessarily make it easier to fire bad officers: It just leaves the disciplinary process to statutes. In fact, that is already the case in many jurisdictions where police unions have no hand in use-of-force policies.

If nothing changes in the political dynamic between the union and local government, then police officers who abuse their powers may still remain on the job, he said.

“How can we be sure those new rules are going to be better? Do the politics change?” Rushin asked.

“Bringing community groups into the bargaining process is something definitely worth considering.”

- Benjamin Sachs, Clean Slate

Stripping away collective bargaining rights for police also presents a risk to other public sector workers. The concerns about police unions coming from the progressive left echo the laments often made by the right about teacher unions, said Martin Malin, a labor law professor at the Chicago-Kent College of Law. After all, conservatives who have led a legal assault on public sector bargaining argue that teacher unions exist to protect bad teachers.

“The parallels between those two camps are very, very striking,” Malin said.

Bargaining With The Community, Not Against It

Rather than strip away bargaining rights from police unions, Malin said reform proponents might consider expanding the universe of what those unions bargain for. In general, employers have to discuss only certain mandatory subjects, such as wages and other working conditions. But there could be a way to bring broader community concerns into play.

Again, Malin pointed to teacher unions. In recent years such unions have launched bold strikes and wrested wins on matters that are not normally on the bargaining table, such as smaller class sizes and green space for schools ― things that everyone wants, not just teachers.

The concept is known as bargaining for the common good. By working together, unions and community groups can advance common goals that benefit both workers and the people they serve. A clear example would be how the wave of teacher strikes that started in 2018 helped increase school funding in many districts. Aligning with the community on such issues has helped teacher unions dispel the stereotype that all they care about are raises and seniority.

Bargaining for the common good is a central feature of Clean Slate, a sweeping proposal for labor law reform that the Harvard Law School’s Labor and Worklife Program is spearheading. The professors leading that, Benjamin Sachs and Sharon Block, said communities could be looking at ways to apply the concept to law enforcement in order to curb killings and address racism. They are now leading another project to brainstorm ideas for reforming police unions.

“The problem is not public sector unions,” Block said. “The problem is police unions, and the lack of accountability structures that police unions have negotiated.”

Of course, plenty of police unions may not willingly bargain in the interest of reform supporters. In that case, maybe they could be forced to ― either by opening up bargaining sessions to public oversight or by formally giving community groups a seat at the table when unions hammer out contracts with cities.

“Bringing community groups into the bargaining process is something definitely worth considering, … the idea being that certain collective bargaining processes have such profound impacts on the community,” Sachs said. “The argument for it seems pretty clear.”

Police at a protest in Brooklyn, New York, earlier this month.
Police at a protest in Brooklyn, New York, earlier this month.
Erik McGregor via Getty Images

Creating Alternative Unions

Restricting police unions’ rights or ceding bargaining power to community groups would require a lot of political will. Although change is coming fast to places such as Minneapolis, where city council members recently pledged to disband the police department, both Democratic and Republican officials in most cities have historically been loath to challenge police unions on reform.

Both police unions and cities have been acting rationally in the way they bargain contracts, said Catherine Fisk, a professor at the University of California, Berkeley, School of Law. When the money isn’t there for raises, cities sometimes offer disciplinary protections instead. It makes sense for the union to accept those, and it makes sense for the city to offer them, since the liabilities that municipalities face for police misconduct aren’t as great as they should be, she said.

“[The police] should be thinking about how to save themselves from complicity in criminal cases.”

- Catherine Fisk, University of California, Berkeley, School of Law

Fisk said police unions employ sophisticated negotiators who will find ways to work around new limits on their bargaining powers. Instead, she has proposed giving them some competition.

Labor relations in the U.S. are carried out under an “exclusive representation” system, meaning one union represents everyone in a bargaining unit. But Fisk said laws can be changed to empower other, smaller unions that challenge the status quo within the police department.

That could take the form of, say, a Black Lives Matter caucus within a police department discussing use-of-force reforms with the city. The idea is to empower officers who are concerned about excessive force and might be part of a solution.

“It would create incentives, or some leverage within the police department and within the rank and file, to highlight problems in the disciplinary system and try to make an end run around union leadership that has decided for whatever reason to oppose reform,” she said.

Fisk and legal scholar L. Song Richardson advocated the concept in 2017, well before the current protests, in part because it seemed modest enough to be politically feasible. Fisk said she believes there must be officers who want to change the system. After all, many officers of color said they share protesters’ goal to end racism in policing.

Given the possibility of working alongside an officer such as Derek Chauvin, who put his knee to Floyd’s neck for nearly 8 minutes*, Fisk said police reform eventually becomes a matter of self-preservation for officers themselves.

“They should be thinking about how to save themselves from complicity in criminal cases,” Fisk said.

*Prosecutors amended the widely known figure of 8 minutes, 46 seconds to 7 minutes, 46 seconds in an updated court filing.

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