Bargaining in Blue, a monthly newsletter from Ballotpedia, provides news and information on police collective bargaining agreements (CBAs), including the latest news, policy debates, and insights from Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population.
In this month’s edition of Bargaining in Blue, we examine arbitration provisions in police collective bargaining agreements. We review an arbitration ruling in Massachusetts; arguments from scholars and the media on arbitration; and insights on the topic from Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population.
In this edition:
- On the beat: Arbitrator reinstates Massachusetts police officers denied religious exemption for COVID-19 vaccine
- Around the table: Arguments from the negotiating table, scholars, and the media on arbitration for law enforcement officers
- Insights: A closer look at arbitration in CBAs and key takeaways from Ballotpedia’s analysis
On the beat
Arbitrator reinstates Massachusetts police officers denied religious exemption for COVID-19 vaccine
Seven Massachusetts state troopers were ordered to be reinstated after an independent arbitrator ruled on August 4, 2023, that the state had violated sections of the police collective bargaining agreement by denying religious exemption requests for the coronavirus (COVID-19) vaccine.
The officers had been placed on unpaid leave in 2021 after Governor Charlie Baker (R) issued an executive order requiring state employees to receive the COVID-19 vaccine. Following the arbitrator’s decision, the state had one week to comply with or appeal the decision, and the law enforcement officers had two weeks to decide to return to work. The officers were also deemed eligible to receive backpay for the time they were suspended without pay.
Patrick McNamara, the president of the State Police Association of Massachusetts, supported the arbitrator’s decision, stating that the officers “whose religious convictions were trampled, and who were left without pay or benefits, now can choose to return to work and will be made whole through retroactive pay and earned seniority,” according to NBC10 Boston.
A spokesperson for Governor Maura Healey (D), who ended the vaccine mandate in May 2023, released a statement that the state would “continue to work with unions to ensure a smooth transition for state employees following the end of the public health emergency,” according to 7News Boston.
The arbitrator’s ruling did not apply to thirteen other officers who were suspended for not receiving the COVID-19 vaccine but who did not qualify for religious exemption. The case for the additional officers will be addressed by a different arbitrator in the fall of 2023.
Want to go deeper?
- Maura Healey
- Police hiring, training, and disciplinary requirements in Massachusetts
- States and cities with police union agreements that require police departments to go through arbitration to punish officers for misconduct
Around the table
Arguments about arbitration for law enforcement officers
In a 2021 article published in the Vanderbilt Law Review, law professor Stephen Rushin assessed data surrounding police arbitration for disciplinary actions. Rushin considered reform approaches aimed at balancing law enforcement officers’ due process rights with community accountability:
[A]s currently structured, the existing process of police disciplinary appeals is not just an appellate system. Instead, critics of this system may argue that it creates a shadow disciplinary system that can largely disregard the decisions reached by law enforcement agencies, city leaders, or civilian review boards. Scholars have expressed widely varying views about how to create an internal disciplinary process for law enforcement officers that is sufficiently responsive to democratic demands without risking officer due process. Some scholars prefer to vest primary disciplinary authority in the hands of police chiefs. Others believe that police chiefs are too insulated from democratic accountability and argue instead that communities should vest authority in groups like civilian review boards that are more directly accountable and representative of the public. But regardless of where scholars fall on this spectrum, there seems to be broader agreement that ‘officer oversight should not be divorced from community input.’
In a 2023 article published in the Ohio State Law Journal, law professor Michael Z. Green wrote about what he considers to be potential reform approaches to arbitration in police discipline aimed at developing a process agreed upon by all stakeholders. Green argued in favor of police arbitration and contended that arbitration procedures are negatively impacted by claims that arbitrators favor police officers in their decision-making:
Despite the political rhetoric, some commentators have gone beyond the blaming and looked at the actual decisions to find that labor arbitrators rarely are the problem in police discipline matters. Instead, the problems that arise when arbitrators reverse police disciplinary actions must lie at the feet of municipalities and departments for their inconsistencies and failures that come forward during the arbitration review process. But political leaders need cover from the fallout when those disciplinary actions get reversed.
Insights
Massachusetts CBA on arbitration
The State Police Association of Massachusetts (SPAM) entered into a collective bargaining agreement with the Commonwealth of Massachusetts in 2015. The CBA does not require arbitration to address disciplinary action, however, arbitration is an optional step in the grievance procedure covered by the agreement. Law enforcement officers can proceed through the grievance procedure regarding disputes over the application of the CBA. If an officer wishes to appeal the decision reached during the grievance procedure, they may pursue arbitration.
Article 22 Section 3 of the CBA between the Commonwealth of Massachusetts and SPAM states the following:
The arbitrator, who shall be selected by the parties, shall have no power to add to, subtract from, or modify any provision of this Agreement or to issue any decision or award inconsistent with applicable law. The parties shall designate a panel of up to five arbitrators to serve in rotation for the case or cases submitted. Should the parties fail to agree upon such a panel or a rotation procedure for assigning cases within ninety (90) days after the signing of this Agreement, cases shall be submitted to arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association. The decision or award of the arbitrator shall be final and binding in accordance with Massachusetts General Laws Chapter 150C.
The agreement has an expiration date of December 31, 2017, however, a more recent CBA has not been made available.
Key takeaways on arbitration in CBAs
Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population featured the following information about arbitration requirements in police CBAs, as of December 2021:
- There are 0 state CBAs and 1 city CBA requiring police departments to go through arbitration to punish officers for misconduct
- Buffalo, New York, has a CBA that requires police departments to go through arbitration to punish officers for misconduct
- There are 22 states and 17 cities that do not have police CBAs
- There are 2 states and 4 cities in which the request for information on police CBAs was denied or information could not be verified
