Arbitration win rate for fired cops, if you stop to think about it, is high

"How often do arbitrators reinstate fired cops?" read a banner front-page headline in the St. Paul Pioneer Press last month.

I'm pleased to salute the Star Tribune's crosstown rival, and my onetime employer, for an important piece of journalism — not least because I'd like to help people better understand what its findings mean.

The Pioneer Press number-crunching yields familiar but often misconstrued evidence of a chronic malfunction in Minnesota's system for disciplining police officers and keeping the public safe.

In St. Paul, recent inspiration for special scrutiny of labor arbitrators came in Police Chief Todd Axtell's June 13 announcement that he was firing five officers for failing to protect a citizen from abuse last year — followed quickly by the police union's announcement that it would fight the terminations, all but guaranteeing that the case will end in the hands of independent arbitrators.

Many such cases do lead to arbitration, because state law requires all local governments to allow disciplined employees to appeal to binding arbitration, just as many private-sector union contracts do. But this is a state mandate, not the product of private collective bargaining.

St. Paul had another highly publicized arbitration frustration earlier this year, when officer Brett Palkowitsch was indicted on civil-rights charges by a federal grand jury over a beating he administered to an innocent citizen in 2016. Palkowitsch had been fired but was reinstated by an arbitrator. Now he's on paid leave.

And, of course, St. Paul is hardly alone. In February, the Minnesota Supreme Court upheld an arbitrator's reinstatement of a Richfield police officer, another discharged ruffian in uniform whose return to duty initially had been reversed by the state Court of Appeals as being contrary to public safety.

Leaders in Richfield, backed by local governments and police chiefs from across the state, had blasted the arbitration system as "broken," making it impossible for public officials "to fulfill their affirmative duty to protect public safety by [enforcing] rigorous accountability" among cops.

The state Supreme Court, however, saw its own affirmative duty as requiring near-absolute deference to the decisions of labor arbitrators. Apparently, only a change in state law could alter the status quo.

So, how often do arbitrators reinstate fired cops? I was unsurprised by the article's answer: "Just under half the time."

I was not surprised because I've been writing about this system for many years, and have often encountered this soothing claim that, after all, only about half of fired cops (or other terminated unionized employees) get reinstated.

Almost 10 years ago, on Aug. 30, 2009, a letter to the editor appeared in this newspaper taking me to task for allegedly slandering the arbitration system. Two professors/arbitrators wrote: "We have been engaged in an empirical study of the more than 2,000 Minnesota decisions issued by arbitrators in employee discipline and discharge decisions between 1982 and 2005. During that period, arbitrators upheld in full the employer's disciplinary decision in over 50% of the public sector cases." (They specified 57% in cases involving teachers, the type of workers in the news at the time.)

And at least 10 years before that — in a series of articles for the Pioneer Press, as it happens — I had myself tabulated arbitrators' records, and had found a striking tendency for employers and unions to win and lose about half the time in discipline cases.

So let's stipulate, at least for the sake of argument, that when police chiefs decide an officer is not fit to wield the awesome authority and weaponry of law enforcement — a responsibility the vast majority of cops shoulder with courage and honor — they stand roughly a 50/50 chance of making the firing stick if the union appeals.

Defenders of the system invariably cite this pattern as evidence that all is well with labor arbitration. That's what the professors/arbitrators were doing in their 2009 letter, and it's what Pioneer Press reporters heard as well.

They quoted one arbitrator belittling a widespread "fallacy" that "police officers, firefighters, teachers and nurses never get fired."

But aren't we entitled to be slightly alarmed to learn that arbitrators reverse appealed police officer firings nearly half the time? Doesn't it suggest one of two troubling explanations — either (1) that our police chiefs are far too casual about terminating cops or (2) that arbitrators are far too casual about second-guessing chiefs' decisions and putting untrustworthy cops back on the street?

After all, discharging an officer is a severe sanction, an extreme step, inevitably hard on a department's morale. We must have reckless bullies and brutes running our law enforcement agencies if, across the state, they have legitimate reasons when they make these hard choices little more than half the time.

Unless, of course, the problem is with an arbitration system that arose in the private sector, as a way of settling private disputes between private companies and unions, and which doesn't readily take the public interest into full account by holding cops (or teachers, firefighters and nurses, for that matter) to a higher standard of conduct because they "hold the trust and safety of the public in their hands," as Richfield officials put it in their high court appeal.

One could speculate as to why arbitrators might tend toward 50/50 records on appealed terminations — obviously the most high-stakes decisions for both managements and unions.

Arbitrators, whose decisions are usually public and readily monitored, typically are selected to hear cases either by mutual agreement between labor and management or by a process of elimination, in which each side strikes names from a shortlist. The upshot is that an arbitrator is unlikely to hear many cases unless he or she maintains a reputation of basic acceptability to both sides.

Whatever the cause, with roughly half of all police firings being officially and unalterably deemed unjust, year after year and decade after decade, we need either to improve the caliber and decency of law enforcement leadership in this state — or take a closer look at our state-mandated system for second-guessing their decisions.

D.J. Tice is at Doug.Tice@startribune.com.