article by Jon Holtzman and Garvey Vincent

by RPLG Founding Partner Jon Holtzman and 2020 RPLG Public Law Fellow Garvey Vincent.

A version of this article appeared in the California Employment Law Newsletter, Vol. 30, No. 16 on June 22, 2020.

As the country’s reaction to George Floyd’s murder is beginning to evolve from pure horror to specific calls for change, a central theme of the dialogue has been the role of police unions in advocating measures that reduced transparency, blocked previous reform efforts, defended members accused of serious misconduct, and, in general, promoted an aggressive culture.  There have been and will be state and federal legislative solutions to these historical problems.  But inevitably, the path to police reform also will involve bargaining, or at least meet and confer, with police unions.  Will this process inject delay?  Perhaps.  But the ultimate policy decisions are in the control of elected officials, except in jurisdictions with interest arbitration (where an unelected arbitrator decides impasses over some issues).  If elected officials fail to achieve reform through collective bargaining, the voters know where to find them.

Recognizing that bargaining will be a critical part of reform efforts, this article briefly reviews public sector bargaining obligations in the context of some of the reform issues we are likely to see.

The Basics:

Police officers, as public sector employees, are subject to the Meyers-Milias-Brown Act (MMBA) when it comes to collective bargaining.  The Act establishes public employees’ rights to join labor unions and be represented by unions during the course of their employment with public agencies.  The Act creates a duty for public employers to meet and confer in good faith with public employees before enacting policies or agency decisions.  In other words, policies that fall within the “mandatory scope of bargaining” can only be changed through negotiation between the police unions and the city.  Policies within the scope of representation are those that have “a significant and adverse impacts on wages, hours and conditions of employment.”  Fundamental managerial or policy decisions are generally exempt from MMBA meet-and-confer requirements except when the implementation of that decision also has a significant and adverse impact on wages, hours, or other working conditions.  In such cases, there is a duty to negotiation over the “impact” or “effects” of the policy, but not the decision to enact the policy.  This is often referred to as “effects” bargaining.

If a managerial or policy decision has an effect on employee wages, hours, and working conditions, courts apply a balancing test to determine whether the effects are within the scope of representation. The balancing test asks if the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. Accordingly, if the benefit to employer-employee relations outweighs management’s interest in making an unencumbered management decision, then the effects are subject to meet and confer; but if management’s interest in making an unencumbered management decision outweighs the benefits to employer-employee relations, the effects are not subject to bargaining under the MMBA.

Politics: The Crocodile in the Bathtub

Turning to the case of police reform, it is important to recognize that many of the impediments to reform – transparency rules regarding police discipline, especially favorable rules regarding disciplinary process itself, the grace period between critical incidents and investigatory interviews, for example – are not collectively bargained.  They are enshrined in state law.  Some progress was made last year when the Legislature enacted SB 1421, requiring public agencies to disclose discipline related specified categories of misconduct – e.g. dishonesty and sexual assault.  However, much work remains at the state level before local agencies even have the ability to negotiate better disciplinary processes.

The central challenge at both the state and local level is really political – what former California Supreme Court Justice Otto Kaus famously referred to as the Crocodile in the Bathtub.  (You can try to ignore it, but every time you look in the bathroom mirror, it’s there.)  Police unions exist in a unique position within our two-party democratic system.  Ideologically, police unions are favored by Democrats because public sector unions empower workers and represent workers who are the bedrock of the middle class. Practically, however, police unions are favored by Republicans as well, because many police officers are Republicans, and “law and order” is a Republican rallying cry.  Furthermore, many of those who are critical of police conduct (historically marginalized, people of color, people living in poverty) are not as active in politics as police supporters. Under these circumstances, police unions have had a distinct advantage when it comes to affecting legislation and local elections.  Hence, for example, until recently, most cities were hell-bent on increasing the size of their police forces.


Bargaining As It Relates to Police Reform

Civilianization. The political power of police unions extends to the local bargaining sphere because, under the MMBA, the “governing body” (city council, board of supervisors) is responsible for “instructing” labor negotiators.  The current rallying cry of protesters to “defund the police,” is, in truth, a variant of an issue that has been on the table for many decades: civilianization.  Historically, police unions have opposed turning sworn positions into unsworn positions such as unarmed community service workers.  In some cases, unions will argue this change is fully bargainable if it involves transferring bargaining unit work out of the bargaining unit. The California Supreme Court has long held the transfer of bargaining unit work to another bargaining unit is within the scope of bargaining.  Some police MOUs contain specific limitations on civilianization, but most do not.  The major impediment to civilianization has been cost.  As most governing bodies have been unwilling to cut the size of the sworn police force, it actually adds cost to employ civilian workers who, for example, might be better at addressing people with psychological or substance abuse issues.  However, in light of the nationwide protests after the murder of George Floyd as well as the damaging effects that the COVID-19 crisis has had on many local government budgets, such civilianization efforts may be given more serious consideration if the number of sworn positions can be reduced.

Use of Force Policies.  Another issue that implicates bargaining is “use of force” policies.  The adoption or change of a use-of-force policy is a fundamental managerial decision, made pursuant to a City’s police powers under the California Constitution.  This has been confirmed by multiple Court of Appeal decisions.  At least two cases have held that a use of force policy is not subject to effects bargaining because the managerial interest in adopting the policy outweighs the benefits to employer-employee relations.  And, the California Supreme Court has strongly suggested this result in dicta: “[T]he avoidance of unnecessary deadly force [is] of obvious importance, and directly affect[s] the quality and nature of public services.  The burden of requiring an employer to confer about such fundamental decisions clearly outweighs the benefits to employer-employee relations that bargaining would provide.”

Despite these cases, police unions will argue strongly that the effects of changing use of force polices directly implicate their personal safety.  For that reason, and because courts and the Public Employee Relations Board have rarely held the line on rules allowing employers to skip the meet and confer process, some public agencies may opt voluntarily to engage in “effects” bargaining with unions.  Whether through bargaining or more informal dialogue, we need to have these difficult discussions to address the underlying tensions. As the Supreme Court suggested in another seminal bargaining case, that exchange of ideas will lead to better results.  If, in the end, the police unions do not persuade the governing body, the body remains free to impose changes to the use of force policy.  If the concern is that such bargaining will cause governing bodies to lose their resolve, the fault is with the governing body, not the process of dialogue.

Discipline.  Finally, many aspects of police discipline are bargainable.  For example, many MOUs have arbitration as a final step in the disciplinary process.  Arbitrators very frequently overturn police discipline.  Perhaps police arbitration decisions should be reviewable in court?

It is also true that police unions often defend “bad” cops.  However, under existing law, they may feel an obligation to do so because they owe a “duty of fair representation” under the MMBA.  Perhaps the law should be clarified to ensure that police unions are not subject to lawsuits from their members when they refuse to defend them in disciplinary matters?

And, due to confidentiality requirements, even fired police officers may end up working in another jurisdiction.  Perhaps the Legislature should consider further changes to existing laws that limit disclosure of police discipline?

Plainly, the disciplinary process must be more robust and effective.  The road to that result lies in both changes to state law and, yes, collective bargaining.  Change is necessary, make no mistake about it.  But remember, the collective bargaining process does not form an insurmountable barrier to change.  The process instead can be a tool for change for those who choose to wield it assertively.