As former Minneapolis mayor, R. T. Rybak, persuasively has argued, police unions frequently undermine efforts to reform policing here and elsewhere.
Now a dispute has emerged about arbitrators decisions about police officers who had been terminated for misconduct.
A StarTribune journalist examined the record of terminated Minnesota police officers getting their jobs back in arbitration. “More than 80 police officers across Minnesota were fired and fought their discharge in arbitration over the past 20 years. About half got their jobs back,” and “the true figure could be slightly higher” because “Minnesota’s public records laws prohibit releasing any information at all when arbitrators overturn a decision to fire a cop without imposing any type of discipline. Such total exonerations, while uncommon, are erased from public record.”
The current Minneapolis Police Chief, Medaria Arradondo, shares this view of arbitration. He said, ““There is nothing more debilitating to a chief from an employment matter perspective, than when you have grounds to terminate an officer for misconduct, and you’re dealing with a third-party mechanism that allows for that employee to not only be back on your department, but to be patrolling in your communities.” This is why he has withdrawn from further contract negotiations with the union and why he wants the Minnesota Legislature to pass legislation to reduce the scope for arbitration of terminated officers.
This harsh judgment of such arbitrations needs qualification, said the StarTribune journalist. “Some [termination] cases never go to arbitration, and some are negotiated and classified as resignations or retirements.”
A stronger defense of labor arbitration was provided by Stephen F. Befort, a professor at the University of Minnesota Law School and a part-time labor arbitrator. He starts by explaining that labor arbitration is “a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decision maker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.”
In this process arbitrators “are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.”
Befort then reports that Minnesota arbitrators upheld discharge decisions by all kinds of employers (not just police) in 52 percent of over 2,000 such cases over 20 years while employees won reinstatement and full back pay in only 20 percent of the cases. The other 28 percent of the cases were “’split’ decisions in which discharges were reduced to some lesser form of discipline such as suspension without pay.” These statistics came from a 2015 book by Befort and two faculty colleagues which was “the largest empirical study of arbitration outcomes ever undertaken.”
Moreover, Befort claims that the above statistics are similar to those for police arbitration over a four-year period according to an article by one of his University of Minnesota Law School students that was published in an American Bar Association journal. These statistics were upholding police officers terminations, 53%; overturning such terminations, 23%; and split outcomes, 24%.
Finally Befort points out that if there were no labor arbitrations, the alternatives are leaving the employers’ decisions unreviewable or the more expensive and slower court litigation, neither of which is desirable.
As a retired attorney who specialized in business litigation, I was intimately familiar with the costs (beneficial to law firms and lawyers) and delays in resolution in such court litigation. Moreover, I became aware of the frequent adverse psychological impact of such litigation on the parties to the disputes. Therefore, I became an advocate for alternative dispute resolution (ADR), especially mediation but also arbitration, and served as Chair of the Minnesota State Bar Association’s Alternative Dispute Resolution Section.
 See Former Minneapolis Mayor Discusses Police Reform Problems, dwkcommentaries.com (June 21, 2020).
 Bjorhus, Fired Minnesota officers have a proven career saver: arbitration, StarTribune (June 21, 2020).
 See these posts to dwkcommentaries.com: Ruminations on Lawyering (April 20, 2011)(interest in ADR and chairing ADR Section); My First Ten Years of Retirement (April 23, 2011)(service as arbitrator); International Commercial Dispute Resolution (Aug. 11, 2011)(arbitration); Intraocular Lenses Litigation (Aug. 18, 2011) (litigation against ex-employees); Employers’’ Lawsuits Against Former Employees (Aug. 25, 2011); List of Posts to dwkcommentaries—Topical: LAWYERING.