Bad Pennies

Former Minneapolis Police Officer Blayne Lehner was fired in 2016 for violating the police department’s use of force policy. Lehner was accused of using excessive force when he twice pushed a woman to the ground in an incident that occurred two years prior. But an arbitrator decided termination was “a step too far,” according to the Bureau of Mediation Services’ arbitration records, and reduced the discipline to an unpaid suspension of 40 hours.

Fast forward to 2019: Lehner was still on paid administrative leave and was fired a second time for an excessive use of force case that happened six years earlier. He was accused of using unauthorized force in 2013 when he kicked a handcuffed man in the back seat of a squad car, breaking the man’s nose and jaw and knocking out two teeth, according to arbitration records. With six use of force violations on his record over a three-year period, an arbitrator denied Lehner’s appeal and his termination remained in effect.

Minnesota’s arbitration process is not limited to the police profession. Other public employees, such as teachers or state workers, can also challenge terminations and other discipline through arbitration. But what is often overlooked is another layer of insulation that protects “bad apple” public employees from accountability: collective bargaining agreements.

In Minnesota, the Public Employment Labor Relations Act (PELRA) has statutorily allowed collective bargaining between state and local government employers and representatives of public employees (public-sector unions) since it was passed in 1971. PELRA was enacted to regulate labor relations between public employers and employees through a collective bargaining agreement (CBA). A CBA is a legal contract negotiated between an employer and the union to determine terms of employment, including pay, benefits, hours and working conditions. Also included in CBAs are disciplinary procedures and standards that state law requires must include a grievance procedure providing for compulsory binding arbitration.

The majority of public employees who serve our communities do so with honor and dignity, but those who discredit their professions are too often protected by contract provisions and state law that may look innocuous on their face but can cause serious consequences when it comes to transparency and accountability.

Arbitration and collective bargaining agreements

Minnesota’s private sector adheres to “at will” employment doctrine, which (with few exceptions) allows employers to discipline or fire an employee for any reason—or no reason at all—as long as no federal or state anti-discrimination statutes are violated.

For government employees, PELRA requires public employers to meet and negotiate with public-sector unions on “terms and conditions of employment.” This phrase often serves as a catch-all, allowing negotiations over procedures used in disciplinary proceedings to be included. Coupled in these union contracts in Minnesota are grievance procedures and a binding arbitration clause that requires government employers to allow all discipline to be appealed to arbitration. For example, in the case that a public employee is fired, binding arbitration is required if that employee appeals the termination. A union represents the employee and attempts to negotiate for a reduced disciplinary sentence or to get the discipline overturned altogether.

The state’s Bureau of Mediation Services administers the arbitration process, providing a list of arbitrators who act as a third party to resolve contract and grievance disputes between an employer and employee. Arbitrators only rule on information that they are presented with by either party. Once an arbitrator decides to either uphold the disciplinary action or reverse it, the decision is irrevocable. And public disclosure regarding the decision is not always a given. “A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action,” according to the Bureau of Mediation Services.

Data from the Bureau of Labor Statistics show that, nationwide, the layoff and firing rate of government employees (state and local) is only one-third the rate in the private sector. Private-sector employees have the responsibility to make good choices and maintain good order; public employees should be held to the same standard.

Conflict of interest

The combination of state law and collective bargaining provisions regarding discipline procedures creates a dangerous conflict of interest. Allowing government unions the power to approve employment contracts—which are often worked out in secret negotiation sessions— that include disciplinary rules adds to the layers of barriers that thwart legitimate discipline and paves the way for punishments to be overturned. This goes beyond preserving due process.

Research Fellow Rachel Greszler with The Heritage Foundation recently wrote that labor contracts “often include provisions that obstruct discipline erase discipline records, and insert elevated standards of review that shield rogue police officers from justice.”

For example, a recent Wall Street Journal analysis of data from the past 15 years found that collective bargaining provisions and arbitration practices have led to half of Minnesota law enforcement officers who were fired for misconduct being reinstated. Seven out of nine officers terminated for violating use of force policies were reinstated, including two from the Minneapolis police department. And half of Minneapolis police officers who faced criminal charges are still working for the department today. A five-year analysis by the Pioneer Press in 2019 found that in 17 of 37 instances, arbitrators blocked Minnesota officials’ attempts to terminate law enforcement or corrections officers.

The right to appeal disciplinary actions before an arbitrator also often protects bad teachers from being fired for incompetence or even egregious behavior. Union-negotiated employment policies in accordance with state statute grant tenure—or, in the legal jargon, due process—to teachers after a probationary period of typically three years. Tenured teachers are not beyond reproach, but the process to fire an ineffective tenured teacher remains difficult and complicated, and the union is likely to intervene and file a grievance against these grounds for dismissal, citing it as a possible violation of the union bargaining agreement.

Jefferson Fietek, a former theater teacher in the Anoka-Hennepin school district, came under investigation in June for sexual assault allegations involving two former male students. According to the Pioneer Press, Fietek had three complaints in his personnel file while he was teaching at the school, but because none of them led to discipline and did not involve alleged sexual misconduct, the nature of the complaints was protected under data privacy law. A recent national survey commissioned by NPR found that over 60 percent of both unionized and nonunionized teachers agree that unions make it harder to fire bad teachers.

A former teacher who wished to remain anonymous out of fear of retaliation expressed concerns to writer Maureen Kelleher about the ways in which unions protect their members at the expense of the people they serve:

When police officers or teachers are accused of wrongdoing, it is the union that supplies the public relations spin, the lawyers and the defense. … It is not the union’s job to protect students; their job is to help teachers keep their jobs. Sadly, this is still the teacher union’s job, even when teacher members are sexual molesters and otherwise abusive…. Both teachers and police officers work with the public when they are at their most vulnerable.

Changes are needed

Reformers say legislators should reevaluate Minnesota’s public employment statutes to narrow the scope of bargaining in the public sector. We need to get government unions out of the business of being able to negotiate discipline policies in collective bargaining agreements and put the process of holding police officers, teachers, and other public employees accountable into different hands. The Legislature could make this a reality by prohibiting collective bargaining over discipline. PELRA prohibits contract bargaining over pension benefits, which are established in other law, and a similar prohibition for discipline would eliminate self-inflicted obstacles to accountability and transparency.

While employees should be protected from frivolous complaints, there are problems with the arbitration process that allow too many public employees to escape consequences for poor choices. State law allows unaccountable arbitrators instead of elected officials to have the last word when it comes to holding individual public employees accountable and deterring bad behavior.

Additionally, disclosing discipline records would elevate standards of accountability. The instances of problem-prone employees who get terminated and then reinstated are trackable if they go through the arbitration process—which is often a small percentage of total terminations. What about the public employees who get terminated for misconduct but don’t challenge the disciplinary action through arbitration? Their discipline records are not publicly disclosed because the union often lobbies to shield these records from the public, which impedes accountability and transparency. If an officer or a teacher is fired but doesn’t lose certification, he or she can get rehired somewhere else without the new employer being aware of previous red flags. Minnesota communities need to believe that misconduct among public employees in professions we trust to keep us safe and educate our students will be investigated and handled appropriately.

More pressure on employers and unions to make their complete collective bargaining agreements available online is another way to leverage accountability. While ratified union contracts are supposed to be publicly available, they aren’t always posted by the employer or union for public inspection. This leaves taxpayers uninformed of the disciplinary policies and rules that apply to the government employees who work for them.

Thanks to the U.S. Supreme Court’s ruling in the 2018 case Janus v. AFSCME, public employees no longer have to financially support a union in order to keep their jobs. But exclusive representation rights for unions to collectively bargain on behalf of all public employees within the union’s bargaining unity create rigid monopoly structures that have “made state and local government bigger, costlier and more complex,” The Washington Post’s Charles Lane recently noted.

Neighboring states Wisconsin and Iowa have limited collective bargaining for most public-sector employees to base wages. In Wisconsin, this led to over $5 billion in savings for the state’s taxpayers within five years. According to Iowans for Tax Relief, collective bargaining reform makes it easier for cities, counties, school districts, and state government to “reward good employees, remove poor performing employees, and allow more control over their budgets.”

Minnesota has the opportunity to follow suit and demand greater oversight and accountability regarding public-sector collective bargaining in general. Will we take advantage of it?

Conclusion

Union collective bargaining agreements spanning public service professions have evolved into much more than standard labor contracts. By including discipline policies in CBAs, unions—unelected, unaccountable third parties—are able to craft discipline provisions that interfere with basic accountability.

Paired with issues in the state’s arbitration process, it is expensive and time consuming to hold public employees accountable for poor performance or misconduct. As long as unions have power over contracts and provisions that involve disciplinary hearings and procedures, they can not only intentionally increase the burden of proof that employers have to show before they can discipline or fire bad apple public employees but also undermine or counteract any disciplinary effort to begin with.

The most important thing to unions is their members. Any type of reform that the union interprets as a threat to its members or the union’s own existence, regardless of the reform’s overall impact in the community, union officials will oppose. Researcher Rachel Greszler with The Heritage Foundation recently compared the union’s involvement with discipline policies to product safety: “If we wanted to ensure the safety of companies’ products, we would not allow organizations that represent the individuals who produce those products to set the safety standards and control the consequences of violating those standards.”

State law and collective bargaining provisions should be adjusted so that unions do not have the power to hamstring attempts at accountability and discipline. And while critics may argue that public employees have a right to due process, that shouldn’t entitle them to undue processes that shield them from accountability. Most civil servants serve our communities well, but we shouldn’t allow unions to make it difficult to weed out the rotten. When a bad cop, teacher, or state worker gets his or her job back, we all lose.