That arbitrators reverse nearly half of management’s disciplinary actions suggests that the internal decisionmaking tends to be excessive and unwarranted. (Jeff Wheeler, Star Tribune file/The Minnesota Star Tribune)

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D.J. Tice returns to a familiar, but flawed, analysis in laying much of the blame for improprieties within the Minneapolis Police Department (MPD) on arbitrators who do not uniformly uphold disciplinary decisions by law enforcement management ("Report bashing MPD whitewashed arbitration flaws," Opinion Exchange, May 15).

His lamentation constitutes old whine in a new bottle.

This time, Tice serves it up from the recent report by the state Human Rights Department finding a pattern of racism within the MPD.

The columnist hits the strike zone in correctly pointing out that the Human Rights report's condemnation does not blame the mandatory arbitration process established by state law and union collective bargaining agreements as a contributing cause of the race-related problems within the MPD.

But he is off-base in invoking a canard he has used in the past: that it is the "systemic flaws" of the arbitral process that constitute a major reason for allowing racism to persist within the Police Department — and other law enforcement agencies, for that matter — by making it more difficult to remove miscreants from those units.

He bases this observation, which he acknowledges he has "noted often," on the numerical results that he has diligently derived from a decade-plus of arbitral rulings in cop termination arbitrations. It shows that arbitrators overrule disciplinary discharges, by either reinstatement or substituting lesser forms of discipline, in about 45% of the cases, or "roughly half the time."

While Tice is typically insightful, his tally on this issue is more redundant than relevant.

That arbitrators reverse nearly half of management's disciplinary actions suggests that the internal decisionmaking tends to be excessive and unwarranted.

The arbitrators who render these reinstatement rulings, or uphold the firings, are experienced, trained, neutral adjudicators who have been mutually selected by the parties — management and unions alike — and have no vested stake in the outcomes.

Tice notes that because they want to appease both sides to assure that they are chosen for future "well-paid" gigs, arbitrators have a tendency to devise compromise or "split" decisions upholding some form of discipline, but often less than the discharge desired by management. However, this feature may result from the broader perspective that an outsider brings to the proceedings and an ability to compare the proper discipline in a particular case to a wider swath of incidents from other jurisdictions.

Additionally, the appeasement factor is no longer applicable because the law has been changed, as Tice duly notes, to set up a random rotational system for selection of arbitrators in law enforcement cases. Consequently, arbitrators no longer have any inbuilt incentive not to displease a particular party, management or labor, too often in order to maximize their livelihoods.

But the biggest defect in Tice's anti-arbitral outlook is his assumption that the arbitrators who reinstate employees or reduce their punishments are subverting the process of eliminating or ferreting out bad employees. The figures he cites can lead to another more plausible conclusion: that management is wrong nearly half the time in firing officers.

Tice would have arbitrators rubber-stamp management edicts even though individualized scrutiny when discipline is challenged indicates that management-imposed sanctions are considered excessive almost as often as they are deemed appropriate.

Moreover, the nearly 50% reversal rate in police discipline cases is hardly exceptional. The records of the Bureau of Mediation Services, which oversees the arbitral process in Minnesota, reflect that unions and their members prevail in about 48% of its non-law enforcement arbitrations, slightly more often than in "cop" cases.

It's this aberration — that law enforcement management decisions are deemed too harsh, or wrong, nearly half the time — that warrants alarm, not that arbitrators modify or tamper down so many of these erroneous ones.

Tice and those like him who bemoan the arbitral process and blame it for ills within the MPD or other law enforcement agencies really have more expansive agendas. They would like to see the diminution of the power — and presence — of unions in the workplace. This dilution would extend beyond law enforcement circles to other public sector units as well as the private sector, where the arbitral process for those in unions, about 15% in Minnesota, also exists and yields comparable results.

Those who seek or support workplace wages and benefits equity, health and safety standards, job security protections, and other safeguards furnished by labor unions, albeit imperfectly, should keep this in mind when encountering the feigned apoplexy of those who blame arbitrators for not letting management run roughshod over working men and women.

Marshall H. Tanick is a Twin Cities employment and labor law attorney.