To: City Manager, City Attorney, Police Chief, Fire Chief
Introduction:
The union of unions, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) calls the right to collective bargaining an “enabling” right, meaning it is “a fundamental right that ensures the ability to protect other rights.” (n.d.) That is why collective bargaining negotiations involve more than just wages, they also involve advocating for or against policies that affect workers. Soon we will be asked to sit at the table with our firefighter and police unions, and I am submitting this memo to the City Council to highlight one aspect of collective bargaining negotiations we must address: misconduct.
This memo will discuss a brief history of negotiations, focusing on the policies that created the current state of industry regulation. I will review potential challenges and present research regarding best practices. With my recommendations, I will argue that protections against allegations of misconduct should be prohibited from collective bargaining negotiations, and discipline should be delegated to a committee of internal and external authorities. I will also recommend peer programs, contract language, and procedural requirements to monitor accountability.
Historical and Policy Background:
Alongside the civil rights movements, labor activity exploded and secured collective bargaining rights for firefighter and police unions in the ‘60s. During that era, the Fraternal Order of Police (FOP) and the Patrolman’s Benevolent Association adamantly argued for internal review policies, using lobbying and lawsuits to prevent external oversight. Winning those victories led to more protections that insulate workers from legitimate investigations, prevent terminations, and limit record-keeping. (Hardaway, 2022)
A local example of a Collective Bargaining Agreement (CBA) between the city of Pueblo and the International Brotherhood of Police Officers Local 537 states, “36. 6 If an employee has not received a disciplinary action, excluding demotion, suspension or dismissal, for a period of three (3) years, he/she may request that all disciplinary action, excluding demotion, suspension and dismissal, over three ( 3) years old be removed from his/her file maintained in the City Personnel Department.” (2020, p 48) These types of policies make it difficult to monitor bad behavior.
Challenges:
The greatest hurdle will be facing backlash from the unions. History has shown there will be very strong resistance to external oversight, and the unions will likely spend hundreds of thousands of dollars acting as a political action committee, leveraging massive social and financial capital to fight oversight legislation. (Hardaway, 2022) Dudeck writes in Catch 22: Relations Between Labor Unions and Management in Public Safety, “Overreach of authority and use of legal protections to force changes in the workplace can produce a toxic environment that makes positive collaboration difficult.” (2020, p14)
Removing the right to bargain over disciplinary practices could cause workers to withdraw their commitment to their duties, as an Aurora union representative reported 10% of their firefighters – 25 workers – chose to step away from their paramedic role in the wake of the prosecution of paramedics in a high-profile death in the custody of police and paramedics. (Levy, 2024)
Should PSW unions continue business as usual, other labor organizations may choose to withdraw their support for chapters that do not uphold their collective values. There have been strong calls for the AFL-CIO to remove some PSW unions as members, and in Seattle, a labor council expelled the Seattle Police Officer’s Guild. (Unger, 2020)
Review of Best Practices:
The AFL-CIO emphasizes at the conclusion of their “About Us” statement, “We fight for social and economic justice and strive to vanquish oppression in all its forms.” (AFL-CIO, n.d.) A report from the AFL-CIO named Public Safety Blueprint For Change says, “The labor movement recognizes the lack of mechanisms for local unions to hold wrong-doers accountable and protect the profession that has contributed to the public’s poor view of police unions and tarnished the reputation of the profession.” To address these challenges, the AFL-CIO created a U-LEADS program to empower union members to hold their peers accountable. They also recommend public safety agencies adopt a Differential Police Response (DPR) that involves dispatching other support services for some calls. (AFL-CIO, 2021)
There is little research about PSW unions and oversight, according to Samual Walker. “It is not known to what extent unions and certain provisions of collective bargaining agreements impede accountability.” He suggests more research asking, “Are there particular provisions of collective bargaining agreements that inhibit thorough and fair misconduct investigations?” David Unger’s work in Which Side Are We On: Can Labor Support #BlackLivesMatter and Police Unions? suggests “[barring] collective bargaining over any subject that implicates use of force, including overall disciplinary matters …[and] curtailing police and carceral unions’ political activities and spending.” (2020, p 34)
Rocha Beardall discusses Citizen Review Boards (CRB) as regulatory mechanisms, saying, “CRBs can effectively implement police accountability if they are permitted to do so without inter-organizational constraints from social actors and policies within the police legitimacy regime… Key obstacles to effective civilian oversight include …continued backlash from police unions and leadership…” (2022) We should be prepared to face resistance, but that should not deter us from insisting on certain demands.
Recommendations:
Like many other industries, the public safety sector has shown it cannot self-regulate; compare it to allowing offenders absolute control over their own investigation and punishment, or factories governing the Environmental Protection Agency. PSW unions should absolutely contribute to the conversation, but the jurisdiction over public safety accountability should be shared among internal and external authorities. Community members should have a significant role in such oversight, which is why I am recommending CRBs be included in our CBA. Additionally, policies that protect perpetrators of violence must be removed from the bargaining table, including protections against transfer, termination, and record expungement.
I also recommend using language in the CBA that details professional standards and expectations of upholding the labor movement’s foundational tenets of solidarity against all forms of oppression and exploitation. We should ask our PSW unions to adopt the AFL-CIO’s U-LEADS initiative and advocate for support services using a DPR. Taking cues from the agreement between the FOP and Montgomery, Maryland, I also recommend body cameras and mobile video systems be a requirement of the contract. Senior union members can work to change the culture of the workplace by promoting mental health services and specialized training, such as crisis intervention training. Leaders should model their professional ethics and foster an environment of accountability.
To overcome the objections of the unions, we need to make some concessions of our own. This will mean higher salaries, better benefits, and appropriate staffing. We should be incentivizing the utilization of these programs by offering bonuses or overtime allowances for participation. Most importantly, union members should have access to resources for legal defense and advocacy, but the provider should be a third party funded by, but not affiliated with, the union. The union should not be making public statements of support for workers accused of misconduct unless exonerated by reputable investigators and arbiters.
Conclusion:
From the very start of our collective bargaining deliberations, the City Council must communicate that accountability is non-negotiable. We can do that by removing abuse investigation protections from CBAs, mandating CRBs, and encouraging U-LEADS programs. Creating a culture of accountability will require mutual cooperation, and I know we can build strong relationships with our PSW unions by addressing their concerns, providing competitive salaries and benefits, promising third-party advocacy, and providing DPR support services to lighten their loads. Let’s keep our reputation of integrity and codify our values into our labor agreements with the workers we trust with our lives.
References
American Federation of Labor and Congress of Industrial Organizations AFL-CIO. (n.d.). Collective Bargaining. Retrieved April 17, 2024, from https://aflcio.org/what-unions-do/empower-workers/collective-bargaining
AFL-CIO. (2021). Public Safety Blueprint for Change. https://aflcio.org/reports/public-safety-blueprint-change
Civilian Complaint Review Board. (n.d.). Retrieved April 20, 2024, from https://www.nyc.gov/site/ccrb/index.page
Collective bargaining agreement between city of Pueblo and International Brotherhood of Police Officers Local 537. (2020). https://www.pueblo.us/AgendaCenter/ViewFile/Item/26550?fileID=92878
Dudek, M. (2020). Naval Post-Graduate School, Monterey, California Thesis – Catch 22: Relations between labor unions and management in public safety. https://apps.dtic.mil/sti/trecms/pdf/AD1126407.pdf
Hardaway, A. B. (2022). The rise of police unions on the back of the black freedom movement. In Connecticut Law Review (Vol. 55, Issue 1). http://www.law.case.edu/ssrnhttps://ssrn.com/abstract=4052024Electroniccopyavailableat:https://ssrn.com/abstract=4052024
Levy, M. (2024). Aurora Fire says 10% of city paramedics limit medical roles because of Elijah McClain verdict – Sentinel Colorado. Sentinel. https://sentinelcolorado.com/metro/aurora-fire-says-mcclain-verdicts-have-prompted-10-of-city-paramedics-to-limit-medical-roles/
Montgomery County. (2023). Agreement between Fraternal Order of Police. https://www.montgomerycountymd.gov/OLR/Resources/Files/FOPCBAFY24-FY25FirstYear.pdf
New York City Police Department. (2022). New York City Police Department Disciplinary System Penalty Guidelines. https://www.nyc.gov/site/ccrb/index.page
Police hiring, training, and disciplinary requirements by state and city. (n.d.). Ballotpedia.Com. Retrieved April 18, 2024, from https://ballotpedia.org/Police_hiring,_training,_and_disciplinary_requirements_by_state_and_city
Rocha Beardall, T. (2022). Police legitimacy regimes and the suppression of citizen oversight in response to police violence. Criminology, 60(4), 740–765. https://doi.org/10.1111/1745-9125.12321
Unger, D. (2020). Which side are we on: Can labor support #BlackLivesMatter and police unions? New Labor Forum, 29(3), 28–37. https://doi.org/10.1177/1095796020950309
Walker, S. (2007). Police accountability: Current issues and research needs. https://www.ojp.gov/pdffiles1/nij/grants/218583.pdf
Appendix
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Example of Investigation Notification Memorandum
Note the Notice of Rights
Suggested Changes: Third Party Advocate Funded By Union, CRB Investigation
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