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Editorial Last Updated: Jun 15, 2020 - 2:02:57 PM

The Collective Bargaining Challenges to The Restraint of Police Behaviour
By Dr. Gary K. Busch, 14/6/20
Jun 15, 2020 - 9:55:56 AM

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There are several crises across the U.S. which have emerged after the increasing rate of murder and assault on Black people and other minorities by police officers moved an enraged population out into the streets demanding reform of police governance. Marches and protests across America have called for the lifting of a wide variety of immunities from prosecution and the discipline of police officers and include demands to ‘defund’ or, at least, ‘reform’ the several police departments. These wishes include imposing judicial procedures against the police officers engaged in failing to apply the rules of measured and impartial justice to all citizens irrespective of race, religion, and political affiliation.

Recent studies of complaints about police behaviour have pointed out the extraordinary range of immunities contained in the collective bargaining agreements made between police unions and their public-sector employers. Not only do the police contracts contain clauses on wages, working conditions, retirement, layoffs, and promotions as do most negotiated agreement; they also include clauses which allow the organisations of the employees (the union), to control discipline.  The police contracts routinely contain provisions that restrict how and when an officer can be questioned after a complaint is filed, which call for the destruction of prior disciplinary records, which bans civilian oversight, and which requires arbitration in cases of disciplinary action.

Much of this diverts sharply from the normal private sector ‘management rights’ (the exclusive right to hire, fire, promote, assign, transfer, manage, direct, evaluate performance, adopt and enforce rules and regulations and policies, and to discipline and discharge employees.) Many, if not most, collective bargains contain a progressive grievance system, often ending in final and binding arbitration of disputes which cannot be reached by management and labour.

To some degree this anomaly of the union taking on the role of management is a feature of public sector unionism. It was never intended to be developed in this fashion, but it emerged from the unique structure of public-sector unions and has a great deal to do with the structure of the bargaining unit. In most cases of police unionism (or firefighters, inter alia) the supervisor is in the same bargaining unit as those whom they supervise. In most police contracts, the District Inspector is in the same bargaining unit as the rookie cop. In these quasi-military structures, where orders and assignments are given by senior officers, the management side has very little input. In most cases the management side of the police labour contract is elected or appointed civic officials (mayors, governors, councilmen, etc.). They may have ultimate control of the police but their day-to-day interaction with the police activity is marginal at best. Work assignments, hiring, firing, promotions, demotions, and tasking are done routinely by members of the same union, not by management. This is why, over the years, the mantle of governance of the police, fire and others has passed to the senior ranks of those services and increasingly, isolated from the norms and mores of those whom they allegedly serve. They render the lower level policemen impotent to confront and reject orders from their senior management but, in return, demand protection for the wider society by establishing immunities for the normal legal restraints on their behaviour.

In both public and private sectors, organized employees use power to affect the distribution of resources and the management of men and materials. In the private sector they do this primarily as employees. In the public sector they exert influence as employees, as pressure groups, and as voting citizens. “Management" officials in government, who are responsible directly or indirectly to the voters, are in this sense in a weaker position than are corporation managers in dealing with the demands of the organized employees. This structure of public employee power greatly compli­cates the employment transaction in government and elevates it to a major problem in public administration, public law, and public finance.

The political character of public management is also reflected in the kinds of pressures to which the public employer responds. While the private employer is not immune to political pressure in decision making, there is little other effective pressure to account for many decisions in the public sector. Some of these pressures may operate at cross-purposes; nonetheless they are political in origin and intent. For instance, civil rights groups may insist on employment of more members of minority groups while taxpayer representatives propose slashes in the budget. The effectiveness of pressure groups varies widely, depending partly on their numerical and financial strength, organization, and "knowing the right people."

Lower levels of the police are frequently intimidated by their superiors because these superiors are in a position to discipline those, they supervise through their management roles. They occasionally assign the recalcitrant policemen “back to the beat” in dead-end midnight shifts. This is not permitted under the police contract but is a familiar form of punishment. There is no redress under the contract.

In 1970 the State of Hawaii passed the Public Employment Relations Act opening the way for state-wide collective bargaining of industrial relations for public-sector employees. These were divided into fourteen groups (among them Group 7-the University; Group 11-Firefighters and Group 12 -Police). Preparations were made for setting up and licensing public sector unions and beginning the process of collective bargaining. As the Director of the Center For Labor-Management Education in the University of Hawaii we were asked by the State and the Hawaii Public Employment Relations Board (HPERB) to assist the process in conjunction with the State and the unions. I had been brought to Hawaii for this by my mentor and friend, Guy T. Nunn, with whom I had worked for several years in the United Auto Workers’ Union in Detroit and Washington, D.C. I was a licensed member of the Labor Panel of the American Arbitration Association and the Federal Labor Panel of the Federal Mediation and Conciliation Service. I had participated in collective bargaining in the U.S. and as a union advisor in negotiations in twelve foreign countries; all in the private sector and had conducted several arbitrations.

We were commissioned to do an extensive study on the role of the supervisor in the bargaining unit for the Federal Intergovernmental Personnel Act and the Hawaii equivalent. In March 1973 we produced a major study “The Supervisor In The Bargaining Unit” which was published and widely circulated. Part 1 was “The Supervisor In Hawaii’s Public Employment”. In this we examined the role of the possible inclusion in the bargaining unit of supervisors, with emphasis on the police, firemen and professors. Our conclusions were many but the most important feature was the warning that whatever the original intention would be, allowing top level police officers to be part of the union would allow custom and practice to devolve day-today power into their own hands and that the politicians would be unable to stop this gradual accretion of power. As for the professors it was judged that they would never see themselves as employees and they demanded “peer review” of lecturers and associate professors, with the right to prevent their promotion and elevation. They felt they were the employer of the lower levels of their departments, not their union brothers.

So, now we can see what this trend of gradual accretion of management rights into the hands of the police officers, commanders and inspectors which has skewed the disciplinary structure of the police into their own hands. There is no question that, as public sector workers, the police require the protection of a union contract which regulates their basic conditions of work, their pay, their promotion scale, and their grievance hearings. There should be a division of the bargaining unit to a level below supervisors. Without that, no reforms or adjustments will ever work. That is the kind of reform which will bring about results and it is time that the politicians occupy themselves as managers of those who serve their publics.

Source:Ocnus.net 2020

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