Volume 32, Number 1, Fall 2016

The Editors’ Page

v

Stephen F. Befort & Laura J. Cooper

Whistleblowers and Safety at Work: An Analysis of
Section 11(c) of the Occupational Safety and Health Act

1

Emily A. Spieler

Changing Definitions of Sex under Title VII

25

Lisa J. Banks & Hannah Alejandro

The Equal Employment Opportunity Commission as a Change
Agent: Tracing the EEOC’s Relentless Pursuit of “Retaliatory”
Waiver Provisions in Employer Severance Agreements

45

Leslie E. Silverman

Does Title VII Preempt State Fair Pay Laws?

65

Allan G. King

Deference to EEOC Rulemaking and Sub-Regulatory Guidance:
A Flip of the Coin?

93

Eric Dreiband & Blake Pulliam

E.I. Dupont and Manhattan Beer : How Far Do Weingarten
Rights Extend? A Union Perspective

113

Kate M. Swearengen

Factors in Police Misconduct Arbitration Outcomes:
What Does It Take to Fire a Bad Cop?
Tyler Adams

133

 133

Factors in Police Misconduct
Arbitration Outcomes: What
Does It Take to Fire a Bad Cop?
Tyler Adams*
Introduction
“Anecdotal evidence can easily be generated from many . . . jurisdictions to illustrate the fact that disciplinary actions, grounded in
conduct which chiefs of police and presumably the public at large
would find simply unacceptable, are often overturned by arbitrators.”1
Disciplinary procedures for police officers across the country have been
a source of significant frustration for mayors, city officials, police
chiefs, and others with an interest in the outcome of these proceedings.2 At the core of this frustration is the perception that labor arbitrators frequently overturn decisions of police executives.3
Public concern over the effectiveness and adequacy of police discipline has spiked in recent years.4 This has brought increased media
attention to alleged police misconduct.5 One obvious example is the
shooting of Michael Brown, an unarmed black teenager, in Ferguson,
Missouri, on August 9, 2014.6 The shooting caused intense public outcry7 about law enforcement’s treatment of racial minorities and led to
* J.D. University of Minnesota Law School Class of 2017; Lead Managing Editor,
ABA Journal of Labor and Employment Law; B.A., University of Minnesota College of
Liberal Arts, Political Science and Philosophy with Concentration in Ethics and Civic
Life, 2014. The author thanks all JLEL editors who helped with the production of this
Note, particularly Professors Stephen F. Befort and Laura J. Cooper.
1. Mark Iris, Unbinding Binding Arbitration of Police Discipline: The Public Policy
Exception, 1 VA. J. CRIM. L. 540, 544 (2013).
2. See Darrel W. Stephens, Police Discipline: A Case for Change, NATIONAL CRIMINAL
JUSTICE REFERENCE SERVICE ( June 2011), https://www.ncjrs.gov/pdffiles1/nij/234052.pdf.
3. Id.; see also Iris, supra note 1, at 544.
4. In 2015, one court went so far as to order an investigation into the adequacy of
police discipline. The Arbitration of Police Discipline: An Intensive Court Ordered Study
in Oakland, California, NATIONAL ACADEMY OF ARBITRATORS (Sept. 22, 2015), http://law.
missouri.edu/arbitrationinfo/2015/09/22/the-arbitration-of-police-discipline-anintensive-court-ordered-study-in-oakland-california/.
5. See Last Week Tonight with John Oliver: Police Accountability (HBO Oct. 2,
2016), https://www.youtube.com/watch?v=zaD84DTGULo.
6. For an in-depth description of the Michael Brown shooting, see What Happened
in Ferguson?, N.Y. TIMES (Aug. 10, 2015), http://www.nytimes.com/interactive/2014/08/
13/us/ferguson-missouri-town-under-siege-after-police-shooting.html.
7. Because of the politically divisive nature of the Ferguson incident, reactions to
the shooting differed between those critical of law enforcement practices and those supportive of swift action to secure the safety of police officers and the public. For an exam-

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heightened scrutiny of alleged police misconduct, particularly when officers used deadly force.8 The Ferguson controversy led many to harbor
strong sentiments of distrust toward police, an issue exacerbated by
the death of Freddie Gray while in police custody in Baltimore, leading
to widespread rioting across the city.9 Some responded with deadly violence toward police officers after the shooting deaths of Philando Castile in St. Anthony, Minnesota,10 and Alton Sterling in Baton Rouge11
in 2016.
These events renewed longstanding perceptions that labor arbitrators who fail to uphold appropriate discipline for abusive police officers render useless measures intended to discipline police officers
accused of misconduct. This perception manifests itself in media portrayals of police discipline arbitration proceedings.12 There is a grow-

ple of a critical perspective of the aftermath of the Ferguson shooting, see, for example,
Jim Salter & Eric Tucker, Ferguson Aftermath: U.S. Finds Racist, Profit-driven Practices
in St. Louis Suburb, WASHINGTON TIMES (Mar. 5, 2015), http://www.washingtontimes.com/
news/2015/mar/5/ferguson-aftermath-us-finds-racist-profit-driven-p/?page=all. For an
example of a more supportive perspective toward police accounts of the shooting, see,
for example, Chris Nuelle, 8 Months Later: The True Aftermath of Ferguson, COLL. CONSERVATIVE (Apr. 22, 2015), http://thecollegeconservative.com/2015/04/22/8-months-laterthe-true-aftermath-of-ferguson/.
8. Some believe that the racial element of controversies concerning law enforcement and lethal force necessitate an entirely new approach to police training. See Jameca Falconer, Deadly Force: Post-Ferguson Policing, SOC’Y OF COUNSELING PSYCH.
(Oct. 9, 2015), http://counspsychracialjustice.org/deadly-force-post-ferguson-policing/.
9. Timeline: Freddie Gray’s Arrest, Death and the Aftermath, BALT. SUN (Apr. 12,
2015), http://data.baltimoresun.com/news/freddie-gray/. Further controversy ensued
when none of the police officers involved in the incident were convicted of a crime. See
Kim Bellware, How the Fight to Convict Baltimore Cops in Freddie Gray’s Death Fell
Apart, HUFFINGTON POST ( July 31, 2016), http://www.huffingtonpost.com/entry/freddiegray-trial-problems_us_5798feb1e4b02d5d5ed3ed67; Kevin Rector & Michael Dresser,
Officers’ Selection of Judge Trials Shaped Outcome in Freddie Gray Case—Spurring Debate, BALT. SUN (Aug. 1, 2016), http://www.baltimoresun.com/news/maryland/freddiegray/bs-md-ci–pivotal-nero-bench-decision-20160731-story.html.
10. Elliot C. McLaughlin, Woman Streams Aftermath of Fatal Officer-Involved
Shooting, CNN (July 8, 2016), http://www.cnn.com/2016/07/07/us/falcon-heightsshooting-minnesota/.
11. Steve Visser, Baton Rouge Shooting: 3 Officers Dead, Shooter Was Missouri
Man, Sources Say, CNN (July 18, 2016), http://www.cnn.com/2016/07/17/us/batonroute-police-shooting/ (“Louisiana State Police announced last week that they had received threats of plots against Baton Rouge police.”). Violence against police also erupted
in Dallas soon after the Baton Rouge incident. See Manny Fernandez, Richard Pe´rezPen˜a & Jonah Engel Bromwich, Five Dallas Officers Were Killed as Payback, Police
Chief Says, N.Y. TIMES (July 8, 2016), http://www.nytimes.com/2016/07/09/us/dallaspolice-shooting.html?_r=0.
12. See, e.g., Henry K. Lee, Oakland Police Discipline Blasted Again, SFGATE
(May 4, 2015), http://www.sfgate.com/crime/article/Oakland-police-discipline-blastedagain-6241820.php (criticizing arbitration process that “failed to properly discipline” a
police officer accused of alcohol-related misconduct); Conor Friedersdorf, How Police Unions and Arbitrators Keep Abusive Cops on the Street, ATLANTIC (Dec. 2, 2014), http://
www.theatlantic.com/politics/ archive/2014/12/how-police-unions-keep-abusive-cops-onthe-street/383258/ (highlighting cases across the country in which arbitrators overturned police discipline).

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ing sentiment that it is difficult or even impossible to fire a bad cop.
Unfortunately, due to the media’s propensity for circulating sensational headlines, they rarely provide complete and accurate accounts
of the details of police misconduct arbitration decisions.13 Most importantly, the media fail to capture what factors arbitrators actually consider when deciding whether to uphold police discipline. This Note explores those details and examines what factors are most important to
arbitrators in adjudicating cases of alleged police misconduct.
Part I of this Note provides background on police unions and their
collective bargaining agreements as well as prior research on arbitration outcomes in police discipline cases. Part II outlines this Note’s
methodology for reaching its own findings. Finally, Part III identifies
the factors most significant in arbitrators’ decisions overturning police
discharges and notes the particular importance of officers’ good character in decisions reversing discharges.
I.
A.

Background
Police Unions and Collective Bargaining Agreements
Most police officers are represented by unions14 and are covered by
collective bargaining agreements.15 In 2013, the majority were covered
by a collective bargaining agreement or were operating under a collective bargaining agreement that had technically expired.16 The likelihood
of police officers being covered by a collective bargaining agreement increases with the size of the city in which the department is located. In
2013, 92% of police officers serving a population of 1,000,000 people or
more had collective bargaining agreements, compared to slightly less
than 60% of officers serving populations of fewer than 2,500 people.17
The terms and structure of these collective bargaining agreements
vary widely among states and even within municipalities.18 However,
13. See Sean Gormley, Counterpoint: Cop Disciplinary System Is Not Broken, START RIBUNE ( Jan. 7, 2016), http://www.startribune.com/counterpoint-cop-disciplinarysystem-is-not-broken/364582971/ (addressing a previous commentator’s argument that
police discipline through arbitration is inadequate to “weed out” bad cops).
14. See Seth W. Stoughton, The Incidental Regulation of Policing, 98 MINN. L. REV.
2179, 2206 (2014) (discussing the emergence and practice of police unionization). Many
police unions do not use the word “union” to describe themselves as an entity, opting instead for terms like “association” or “order.” Id.
15. Id. Because police officers are public employees, their right to bargain collectively depends on state law. Six states—Arizona, Georgia, North Carolina, Mississippi,
South Carolina, and Virginia—prohibit police unions from collectively bargaining. Id.
at 2207 (citing Richard B. Freeman & Eunice S. Han, Public Sector Unionism Without
Collective Bargaining, 54 J. INDUS. REL. 386 (2012)).
16. Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice Statistics, Local Police
Departments, 2013: Personnel, Policies, and Practices, at 15 (app. tbl.3) (May 2015),
https://www.bjs.gov/content/pub/pdf/lpd13ppp.pdf.
17. Id.
18. Stoughton, supra note 14, at 2208–09. This variance is at least in part due to
differences in how police unions negotiate with local law enforcement agencies. In larger

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collective bargaining agreements between police officers and law enforcement agencies19 almost always permit grievances to challenge
disciplinary actions.20 Often, these grievances are initially appealed
to an officer’s immediate superior in the chain of command, meaning,
for example, that a sergeant would appeal a disciplinary decision to a
lieutenant.21 Once this process is finished, if the union still wishes to
dispute the disciplinary decision, most collective bargaining agreements permit the matter to be heard by a neutral arbitrator.22
B.

Prior Research on Arbitration Outcomes and Police
Discipline
Previous studies have analyzed arbitration decisions to determine
what factors arbitrators most frequently take into account in sustaining or denying labor grievances.23 A study analyzing 2,055 Minnesota
arbitration awards between 1982 and 2005 found that public sector
employers are significantly more likely than private sector employers
to win cases that go to arbitration.24 Management is more likely to be
upheld if the employee was discharged rather than suspended or reprimanded.25 The same study also found that when arbitrators reduce
discipline, they most frequently cite an employee’s good work record,
a lack of progressive discipline by the employer, or the excessive severity of the punishment as mitigating factors.26
Some research has focused exclusively on police discipline arbitration. Studies of the frequency with which arbitrators overturn
police discipline have been limited in scope, confined only to large cities, and cover only short timeframes.27 Nevertheless, the available
studies suggest that neutral arbitrators regularly overturn police discities, departments may have to negotiate with several different unions representing different portions of the police force. Id.
19. The Labor Relations Information System maintains a “contract database” of
police collective bargaining agreements. LRIS Public Safety Contract Database, LABOR
RELATIONS INFORMATION SYSTEM, https://www.lris.com/contracts/.
20. Stoughton, supra note 14, at 2209.
21. Id. at 2210.
22. Id. Grievance procedures may have more steps before reaching arbitration. See
generally id.; Jerome Lefkowitz, Arbitration of Disputes Involving Police and Firefighters, in LABOR AND EMPLOYMENT ARBITRATION § 2-51 (2d ed. 2016).
23. See, e.g., LAURA J. COOPER, MARIO F. BOGNANNO & STEPHEN F. BEFORT, MORE THAN
WE HAVE EVER KNOWN ABOUT DISCIPLINE AND DISCHARGE IN LABOR ARBITRATION: AN EMPIRICAL
STUDY (2015); George W. Bohlander & Donna Blanchero, A Study of Reversal Determinants in Discipline and Discharge Arbitration Awards: The Impact of Just Cause Standards, 21 LAB. STUD. J. 3 (1996).
24. COOPER ET AL., supra note 23, at 7, 305.
25. Id.
26. Id. at 308.
27. See Iris, supra note 1, at 543–44 (examining two studies of police misconduct
arbitration: one in Chicago over a four-year period and another in Houston over a
five-year period); EDWARD SWANSON, REPORT OF THE COURT-APPOINTED INVESTIGATOR IN DELPHINE ALLEN V. CITY OF OAKLAND (2015) (researching police discipline arbitration in Oakland over a five-year period).

 Factors in Police Misconduct Arbitration Outcomes

137

cipline.28 One study of Chicago police discipline arbitration decisions
from 1990 and 1993 found that arbitrators overturned about half of
the total days of disciplinary suspension imposed by police executives.29 A similar study of Houston police discipline arbitration awards
from 1994 to 1998 found that arbitrators upheld slightly more than
half of all suspension days.30
While the suspension of police officers is certainly a significant aspect of police discipline, perhaps the more controversial issue is how
often discharged police officers are reinstated through arbitration.
Studies suggest that the frequency of overturned discharges varies
by city. A 2001 study of police discharge grievances in Cincinnati, for
example, observed how high standards for terminating police officers
resulted in many officers being reinstated.31 In recent years, Philadelphia and Oklahoma City have seen nearly every discharged police officer reinstated through arbitration.32 A study of police discipline in
Oakland between 2010 and 2014 characterized the arbitration system
as “broken” because police officials were upheld only about a quarter of
the time.33
Departments throughout Texas at about the same time as the Cincinnati study, however, saw closer to half of police discharges overturned,
and about half of overturned discharges reduced to a lesser penalty, such
as a suspension.34 More recently, police departments in Portland, Oregon, have also seen about half of officer discharges overturned.35
These studies provide important statistical background and support the assertion that arbitrators regularly, but not always, overturn
28. Iris, supra note 1, at 543 (“Empirical findings confirm the reality that from a
police chief ’s perspective, the results of the arbitration process are not pretty.”).
29. Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary?, 89 J. CRIM. L.
& CRIMINOLOGY 215, 235 tbl.1 (1998).
30. Mark Iris, Police Discipline in Houston: The Arbitration Experience, 5 POLICE Q.
132, 141 tbl.1 (2002).
31. See Robert Anglen & Dan Horn, Police Discipline Inconsistent: Sanctions Most
Likely to be Reduced, CINCINNATI ENQUIRER (Oct. 21, 2001), http://enquirer.com/editions/
2001/10/21/loc_ police_discipline.html. This trend may have been attributable to a de
facto requirement that Cincinnati police officers be convicted of a felony in a separate
criminal proceeding before discharge became a possibility. Iris, supra note 1, at 544.
32. Dan Stamm, Police Commish Angry That 90 Percent of Fired Officers Get Jobs
Back, NBC PHILADELPHIA (Feb. 28, 2013), http://www.nbcphiladelphia.com/news/local/
Police-Officers-Get-Jobs-Back-194100131.html (about ninety percent of fired officers
were reinstated; three-fourths with full pay and benefits); Will Aitchison, 10 Years of
OKC Police Discipline, LABOR RELATIONS INFORMATION SYSTEM (Aug. 11, 2015), https://
www.lris.com/2015/08/11/10-years-of-okc-police-discipline/ (Oklahoma City Police Department rehired six officers fired between 2005 and March 2015; all six had a favorable
arbitration award).
33. SWANSON, supra note 27, at 1 (“For years, Oakland’s police discipline process has
failed to deliver fair, consistent, and effective discipline.”).
34. Iris, supra note 1, at 544.
35. Maxine Bernstein, Disciplining Portland Police Proves Challenging Task, OREGONIAN ( July 14, 2012), http://www.oregonlive.com/portland/index.ssf/2012/07/
disciplining_portland_ police_p.html.

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police discipline. However, they do not offer insight into the reasoning
or important factors arbitrators considered in police discharge cases.36
This Note seeks to fill this gap by identifying the most important factors to arbitrators in deciding whether to overturn police discipline.
II. Methodology
Finding and analyzing every arbitration decision involving police officers is beyond the capabilities of one researcher. Major metropolitan
areas alone can produce hundreds of arbitration decisions in only a
few years.37 This makes a nationwide survey of the factors that influence
arbitrators’ decision-making impracticable. This Note, therefore, recognizes some reasonable limitations on the scope of the decisions analyzed.
First, this Note examines only cases challenging a police officer’s
discharge.38 Limiting analysis to officer discharges narrows the number
of decisions studied and allows focus on cases involving the most serious
allegations of police misconduct, the area of greatest public and media
concern.
Second, this Note examines only cases in which police departments
discharged officers for misconduct. Police officers can be discharged for a
variety of reasons.39 Because the controversy about police arbitration
centers on misconduct,40 this Note looks at why police officers discharged
for misconduct are reinstated by arbitrators.
Third, this Note is limited in the time period studied. Although police misconduct arbitration has been controversial for many years,41 it
is more useful to provide a contemporary, rather than historical, perspective on police misconduct arbitration. This Note, therefore, examines decisions published in the five years between 2011 and 2015.
Finally, this Note does not address all police department employees
covered by a collective bargaining agreement. Many law enforcement
arbitration decisions involve employees who are not police officers.
These include, for example, administrative assistants, dispatchers, or

36. Cooper, Bognanno, and Befort did not control for occupation beyond distinguishing between public and private sector employees. See COOPER ET AL., supra note
23 passim.
37. See, e.g., Iris, supra note 29, at 216 (328 arbitration decisions involving police
grievances in Chicago in four years).
38. Some studies that compiled arbitration decisions for strictly statistical purposes, without going into the merits of each individual decision, have included cases involving officer suspensions. See, e.g., id.
39. See, e.g., City of Rockford, 133 BNA LA 587 (2013) (Simon, Arb.) (officer discharged for psychological problems associated with lawful shooting of a suspect); City
of Marengo, 131 BNA LA 1729 (2013) (Kravit, Arb.) (officer discharged for injuries she
sustained while on duty).
40. See supra notes 1–13 and accompanying text.
41. See supra notes 1–13 and accompanying text.

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139

city inspectors.42 This Note limits analysis to police officers, who are
directly responsible for law enforcement and are the subject of media
scrutiny.
With these limiting factors in mind, this analysis includes ninetytwo arbitration awards published between 2011 and 2015 regarding
police officers discharged for misconduct.43 Nearly all of these decisions
came from Bloomberg Law’s Labor and Employment Law Resource
Center.44
Using the Bloomberg BNA Labor Arbitration Decisions search engine and the search terms “police & discharge OR terminate!” and “police officer & discharge OR terminate!” yielded thirty-eight decisions
between 2011 and 2015.45
Using the Arbitration Award Navigator, applying “Law Enforcement” under the “Industry” tab, and “discharge of employee” under
the “Topic” tab yielded 125 results between January 1, 2011, and December 31, 2015. This yielded an additional fifty-four decisions within
the study’s scope.
The decisions were organized in a spread sheet documenting information about each decision, including its citation and date. Codes were
assigned to the arbitrators’ decisions and rationales, including reliance
on due process (procedural reasons) and mitigating circumstances for
overturning discharge. The study also recorded other factual aspects of
each case, such as whether the officer was formally charged with a
crime or whether the alleged misconduct involved civilian mistreatment.
III. Findings
As seen in Table 1, of the ninety-two awards examined, arbitrators
upheld discharges in forty-nine cases (53.3%) and overturned discharges in the remaining forty-three (46.7%). The arbitrators’ rationale for overturning discharges fell into two categories: procedural factors related to due process and mitigating factors concerning the
discharge’s factual context.

42. One example is a recent case involving a city inspector who allegedly misused
the city’s ticketing system by entering information about her own property. City of
St. Paul, 135 BNA LA 456 (2015) ( Jacobs, Arb.).
43. This Note examines only arbitration decisions. It is important to recognize that
courts may overturn some arbitration decisions in rare circumstances. Because police
cases depend on state law, this may occur, for example, under state-law public policy exceptions to the finality of arbitration awards. See generally Henry Drummonds, The Public Policy Exception to Arbitration Award Enforcement: A Path Through the Bramble
Bush, 49 WILLAMETTE L. REV. 105 (2012).
44. Four decisions came from the AAA service on LexisAdvance.
45. Other searches included “police & discharge,” “police & terminate,” “police officer & discharge,” “police officer & terminate,” and “police & just cause to discharge
OR terminate!” These searches did not produce any additional awards.

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Table 1: Outcomes of Police Discharge Arbitrations
Category

Number

Percentage of Total Cases

Discharge Upheld

49

53.3%

Discharge Overturned

43

46.7%

Total Cases

92

–

A.

Due Process Factors: The “Just Cause” Standard in Police
Discharge Arbitration
Due process in a discharge case relates to two issues: whether the
department proved that it had just cause for discharge, and whether the
pre-discharge procedure satisfied the collective bargaining agreement.
1. Proof of Just Cause
“The central concept permeating discipline and discharge arbitration is ‘just cause.’ ”46 A principal reason why arbitrators overturn police discharges is a department’s failure to prove just cause. The meaning of just cause is derived from principles of fundamental fairness
that evolved over time through the decisions of arbitrators.47 Hence,
it is rarely defined in collective bargaining agreements or arbitral decisions. While prior decisions and arbitral literature offer a structure
for just cause analysis and highlight its critical elements, the application of the standard necessarily retains some subjectivity.48
Most collective bargaining agreements contain a just cause provision.49 Agreements between police departments and police unions place
the burden of persuasion on the department to prove just cause.50 Some
contracts articulate elements of just cause analysis, but they vary in
content.51 Many do not specify a quantum of proof necessary to prove
just cause.
Each decision in the database was coded for the quantum of proof
used by the arbitrator. Table 2 shows that, of the ninety-two decisions,
fourteen (15.2%) explicitly used a “preponderance of the evidence”
46. DISCIPLINE AND DISCHARGE IN ARBITRATION 2-2 (Norman Brand et al. eds., 3d ed.
2015).
47. Id. at 2-3 (“[A]rbitrators did not sit down together in the dim past and agree
upon the principles of just cause. Rather, arbitrators build upon what other arbitrators
said in their opinions, developing principles of just cause by accretion.”).
48. Id. at 2-2 (“[J]ust cause can be shorthand for what an arbitrator thinks is fair.”)
49. HOW ARBITRATION WORKS 15-4 (Kenneth May et al. eds., 7th ed. 2014). At least
one arbitrator has held that even in the absence of a just cause provision, a just cause
limitation is implied by the very existence of a collective bargaining agreement. Herlitz,
Inc., 89 BNA LA 436 (1987) (Allen Jr., Arb.) (“[A] ‘just cause’ limitation on discharge is
‘implied’ in any labor agreement.”).
50. See, e.g., City of Mountlake Terrace, 134 BNA LA 1736 (2015) (Pederson, Arb.).
51. Compare id. (requiring a “heightened standard of civil proof ” beyond preponderance of the evidence), with City of Youngstown, 134 BNA LA 1644 (2015) (Bell,
Arb.) (requiring a showing that the officer committed a dischargeable offense).

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Table 2: Quantum of Proof Used by Arbitrators in Police Discharge Cases

Quantum of Proof

Number of
Cases

Percentage of
Cases

Discharges
Upheld

Percentage
Upheld

Preponderance

14

15.2%

9

64.3%

Clear and Convincing

19

20.7%

11

57.9%

2

2.2%

0

0%

57

62%

29

50.9%

Reasonable Doubt
No Standard

standard, nineteen (20.7%) explicitly used a “clear and convincing evidence” standard, and two (2.2%) explicitly used a “beyond a reasonable doubt” standard. In the remaining fifty-seven decisions (62%),
there was no clear standard articulated by the arbitrator.52
A. DAUGHERTY’S SEVEN TESTS

The “Seven Tests” of just cause theory articulated by Arbitrator Carroll Daugherty and used by some arbitrators to determine just cause
have drawn significant academic attention.53 Daugherty’s Seven Tests
evaluate just cause through a series of seven yes-or-no questions;54 an
52. Awards using a “preponderance of the evidence” quantum were slightly more
likely to uphold a discharge decision. In nine of the fourteen cases (64.3%) in which
the arbitrator used that standard, the arbitrator upheld the officer’s discharge. This is
compared with eleven of nineteen cases (57.9%) under the “clear and convincing standard” and twenty-nine of fifty-seven cases (50.9%) with no clear standard in which the
discharge was upheld. In both cases where the arbitrator used the “beyond a reasonable
doubt” standard, the discharge was overturned. These results differ from a recent study
of Minnesota arbitration awards in which arbitrators found just cause in 47% of decisions using a “preponderance of the evidence” standard and in 51.58% of decisions
using no clear standard. See COOPER ET AL., supra note 23, at 162.
53. See HOW ARBITRATION WORKS, supra note 49, at 2-5; COOPER ET AL., supra note 23,
at 175–78.
54. The seven tests are:
1) Did the Company give the employee forewarning or foreknowledge of the
possible or probable disciplinary consequences of the employee’s conduct?
2) Was the Company’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the Company’s business?
3) Did the company, before administering discipline to an employee, make an
effort to discover whether the employee did in fact violate or disobey a rule
or order of management?
4) Was the Company’s investigation conducted fairly and objectively?
5) At the investigation did the “judge” obtain substantial evidence or proof
that the employee was guilty as charged?
6) Has the company applied its rules, orders, and penalties evenhandedly and
without discrimination to all employees?
7) Was the degree of discipline administered by the company in a particular
case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the company?
Grief Bros. Cooperage Corp., 42 BNA LA 555 (1964) (Daugherty, Arb.).

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answer of “no” to any one of which “normally signifies that just and
proper cause did not exist.”55
In twelve of the ninety-two cases (13%) studied for this Note, one
or both parties relied upon Daugherty’s Seven Tests. The arbitrator explicitly relied on the Seven Tests in only nine cases (9.8%). These findings suggest that lawyers use the Seven Tests analysis somewhat
more frequently in police discharge disputes than in other contexts,56
but arbitrators use it no more frequently in these cases than in other
types of cases.57 In police cases, as in other arbitrations, the Seven
Tests appear to be “utilized by arbitrators much less frequently than
most of the arbitration literature would suggest.”58
B. DEPARTMENTS’ FACTUAL INVESTIGATION

An insufficient investigation is a principal reason why discharges
are overturned.59 In sixteen of the forty-three decisions (37.2%) overturning a discharge, the arbitrator cited an inadequate departmental
factual investigation.
Departmental discharge decisions overturned because of inadequate investigation can lead to a perception that police officers are impossible to fire. For example, a 2013 decision overturned an officer’s
discharge for “alcohol abuse” and “drinking while on-duty.”60 One
can see how, without context, returning an alcoholic police officer to
the force would cause public outrage. However, the arbitrator overturned the discharge because the officer accepted one free beer while
at a bar and “it [did] not appear that City officials made any effort . . .
to ascertain the extent, if any, of the Grievant’s alcohol problem.”61
This case illustrates how the department’s failure to investigate the
circumstances behind a discharge decision can change one’s impression of the arbitration result. In many instances, an inadequate investigation can lead to an unfair discharge.

55. Id.
56. A comprehensive study of arbitration decisions in Minnesota found “no mention of an advocate’s reliance on the Seven Tests in more than 95 percent of cases.” COOPER ET AL., supra note 23, at 189.
57. “More than 90 percent of the time arbitrators did not rely on the Seven Tests.”
Id.
58. Id. Arbitrators may choose to use the Seven Tests regardless of whether it was
argued by one or both parties. See, e.g., United City of Yorkville, 134 BNA LA 1665 (2015)
(Finkin, Arb.) (refusing to use the Seven Tests despite its invocation by both parties);
City of Mountlake Terrace, 134 BNA LA 1736 (2015) (Pederson, Arb.) (same).
59. See, e.g., Labor Arbitration Decision, No. 148286-AAA, 2013 BNA LA Supp.
148286 (Apr. 24, 2013) (De Treux, Arb.).
60. Id.
61. Id. (alteration in original).

 Factors in Police Misconduct Arbitration Outcomes
C. GUILT

143

DISCHARGED OFFICER

OF THE

Even if a department conducts a thorough investigation, its discharge decision may be overturned if the arbitrator concludes the evidence did not prove guilt.62 In many police discharge cases, guilt is not
an issue; either the officer admitted wrongdoing or the evidence is too
overwhelming to dispute.63 However, arbitrators will not find just
cause if the department cannot prove that the officer committed the alleged offense on which the discharge was based.64 As seen in Table 3,
in twenty-one of the forty-three cases (48.9%) overturning discharge,
the arbitrator overturned the officer’s discharge because the department failed to prove that the officer was guilty of the alleged offense
that led to discharge. This includes the sixteen cases mentioned in
part III(A)(1)(b) in which the arbitrator found the department’s factual
investigation insufficient. This means that there were only six instances (14%) in which the arbitrator overturned a discharge based
on insufficiency of evidence that did not result from an inadequate factual investigation. These findings suggest that departments that conduct thorough investigations and gather strong evidence showing an officer committed the alleged offense are likely to be upheld in arbitration.
Table 3: Guilt of Discharged Officers
Category

Number of Cases

Percentage of Cases

Failed to Prove Guilt

21

48.9%

Investigation Insufficient

16

37.2%

6

14%

43

–

Investigation Not Insufficient
Overturned Discharges

The sufficiency of evidence presented by the department is necessarily a matter of arbitral judgment.65 In a 2014 case, an officer was
discharged for sexually harassing a female crime victim.66 The officer
had turned off his dash camera in violation of the department’s recording policy, leaving no video evidence to prove the officer’s misconduct.67
62. See, e.g., City of Del Rio, 134 BNA LA 1285 (2014) ( Jennings, Arb.).
63. See, e.g., Labor Arbitration Decision, No. 148286-AAA, 2013 BNA LA Supp.
148286 (Apr. 24, 2013) (De Treux, Arb.) (officer admitted to drinking while on duty).
64. See Labor Arbitration Decision, No. 200551-AAA, 136 BNA LA 760 ( Jennings,
Arb.) (“The City failed to produce any credible evidence to sustain the allegation/accusation that the Grievant acted improperly when he delivered a compliance strike.”).
65. The quantum of proof may also be relevant. See supra Part III(A)(1); City of Del
Rio, 134 BNA LA 1285 (2014) ( Jennings, Arb.) (using the “clear and convincing” standard in ruling for the grievant).
66. City of Del Rio, 134 BNA LA 1285.
67. Id.

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To support the discharge, the city offered results of a polygraph test
suggesting the officer had inappropriately touched the victim while
in his squad car.68 The arbitrator overturned the discharge because he
was “not convinced” that the evidence was sufficient to infer guilt.69
The arbitrator thought the victim lacked credibility and that testimony
supporting the discharge was “contradictory.”70
2. Discharge Procedure
Police discharges are often overturned on procedural grounds,
such as the failure to observe a specified termination process outlined
by state law or the collective bargaining agreement.71
A. LEOBORS

Along with protections granted by collective bargaining agreements, police officers often enjoy due process rights granted by the
Law Enforcement Officers’ Bill of Rights (LEOBOR).72 LEOBORs
are found in collective bargaining agreements or state statutes.73 Generally, LEOBORs provide police officers accused of misconduct certain
protections, such as the right against self-incrimination during an
investigation.74
Two notable U.S. Supreme Court decisions, Garrity v. New Jersey75 and Gardner v. Broderick,76 granted due process protections to
police officers under investigation for alleged misconduct. These decisions, as well as the rise of police unions in the late 1960s and early
1970s, influenced the development of LEOBORs.77 Although there

68. Id.
69. Id.
70. Id.
71. See, e.g., Labor Arbitration Decision, No. 148286-AAA, 2013 BNA LA Supp.
148286 (Apr. 24, 2013) (De Treux, Arb.) (overturning discharge because of the department’s failure to enroll the grievant in an alcohol treatment program per department
policy and the collective bargaining agreement).
72. See generally Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U.
PUB. INT. L.J. 185 (2005) (analyzing the impact of LEOBORs on police accountability); see
also Due Process Rights for Law Enforcement Officers, FRATERNAL ORDER OF POLICE,
https://www.fop.net/CmsPage.aspx?id=97.
73. Keenan & Walker, supra note 72, at 188.
74. Common examples of these protections include, inter alia, limitations on investigatory questioning, the exemption of routine interactions between officers from discovery, the requirement that an officer be informed of the names and ranks of officers in
charge of the investigation, the requirement that an officer be informed of the nature
of the investigation prior to questioning, and the right to have counsel present during
questioning. See id. at 203–41 (in-depth description of protections for police officers commonly found in LEOBORs).
75. 385 U.S. 493 (1967).
76. 392 U.S. 273 (1968).
77. Keenan & Walker, supra note 72, at 196–98. See also Due Process Rights for
Law Enforcement Officers, FRATERNAL ORDER OF POLICE, https://www.fop.net/CmsPage.
aspx?id=97 (“We need legislation to create a uniform minimal level of procedural due

 Factors in Police Misconduct Arbitration Outcomes

145

was an effort to enact a federal LEOBOR,78 LEOBORs were incorporated in various forms in state and local law.79
State LEOBORs vary in the protections they afford. Typically,
LEOBORs provide basic protections, such as the right to be informed
of an adverse investigation80 and mandatory “waiting periods” to allow
the accused officer time to retain legal representation.81 Many LEOBORs
also guarantee the right to legal counsel throughout misconduct investigations.82 Some place restrictions on how police officials conduct these investigations, such as time constraints or rules regarding conduct during
interviews.83
B. PROCEDURAL DEFICIENCIES

IN

POLICE DISCHARGES

Of the forty-three cases overturning discharge, the arbitrator
cited failure to comply with proper procedure in nine (20.9%). Types
of procedural shortcomings include lack of notice that the alleged misconduct was prohibited,84 failure to observe a statute of limitations
imposed by state law,85 and other procedural missteps unique to the
specific provisions of a collective bargaining agreement.86
One example of how procedural issues can lead arbitrators to overturn a police discharge is a 2013 case in which a police officer was fired
for excessive force after allegedly firing her weapon at a fleeing robbery suspect.87 In deciding to discharge the officer, the department
considered previous discipline against her more than one year prior
to the incident.88 The arbitrator overturned the discharge in part be-

process for police officers and codify the core holdings of the U.S. Supreme Court [dealing
with police officers] confronted with the threat of termination.”) (alteration in original).
78. S. 1043, 102d Cong. (1991).
79. Keenan & Walker, supra note 72, at 197 (“[P]roponents of LEOBORs have
achieved their greatest successes at the state level.”).
80. See id. at 211 (citing H.R. 1626, 107th Cong. § 3(e)(2) (2001)).
81. Id. at 212.
82. Id. at 215.
83. Id. at 217–22. For an example of a model Peace Officer’s Bill of Rights, which
would apply to all public servants, see Wayne W. Schmidt, Peace Officers Bill of Rights
Guarantees: Responding to Union Demands with a Management Sanctioned Version,
ALEL LAW ENFORCEMENT LEGAL CENTER (2004), http://www.aele.org/pobr-iacp.pdf.
84. See, e.g., Labor Arbitration Decision, No. 148178-AAA, 2013 BNA LA Supp.
148178 (Sept. 23, 2013) (Visco, Arb.) (overturning a young officer’s discharge for “immature and vulgar” social media posts because of the department’s failure to “clearly inform
[Grievant] of good as well as inappropriate forms of conduct”) (alteration in original).
85. City of San Jose, 129 BNA LA 1313 (2011) (Reeves, Arb.) (overturning discharge for officer’s investigative errors and misquoting of witnesses in sexual assault
cases because “the disciplinary action against Grievant [was] time barred”) (alteration
in original).
86. See, e.g., City of Riviera Beach, 131 BNA LA 1057 (2013) (Abrams, Arb.) (overturning discharge after officer’s fourth tardy because collective bargaining agreement allowed five).
87. City of Flint, Grievance: #12.19/T_ F_, 2013 BNA LA Supp. 20130725 ( July 25,
2013) (McDonald, Arb.).
88. Id.

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cause considering discipline more than one year prior to the alleged offense violated the collective bargaining agreement.89
This case demonstrates that a department’s failure to follow established procedures can lead to an overturned discharge. The arbitrator stated: “I can understand the frustration of the Police Chief and the
Administration in this particular matter. At the same time, the City
has the burden of proof in this case and it appears clear that it did
not strictly follow the language of the collective bargaining contract
in imposing discipline.”90 However, cases in which a procedural error
is the only factor in overturning an officer’s discharge are rare. Of
the ninety-two examined cases, the arbitrator cited procedural error
as the only factor in overturning a discharge in only two (2.2%).
While arbitrators consider procedural requirements, when discipline
is overturned they are almost always accompanied by other mitigating
factors.
B.

Mitigating Factors: When Does an Officer Deserve to be
Fired?
In most cases overturning discharges, arbitrators cite mitigating
factors favoring reinstatement.91 In twenty-nine of the forty-three decisions (67.4%) in which an arbitrator overturned a discharge, the arbitrator cited mitigating factors unrelated to whether the officer was
guilty of the alleged offense. This Section discusses some of the most
significant of these mitigating factors.
1. Good Work Record
One of the most important mitigating factors is an officer’s prior
disciplinary record. Disciplinary records were raised by one or both
parties in nearly every analyzed decision.92 A positive work history
can be helpful to persuade an arbitrator to overturn an officer’s
discharge.
In a 2013 case, for example, an officer was discharged for excessive
force when she rammed a fleeing suspect’s car, causing the suspect’s
death.93 The arbitrator reinstated the officer, stating “[the officer]

89. Id.
90. Id.
91. See, e.g., Labor Arbitration Decision, No. 149300-AAA, 2011 BNA LA Supp.
149300 (Feb. 25, 2011) (Humphries, Arb.) (citing disparate treatment as a mitigating factor overturning discharge).
92. See, e.g., 2015 AAA LEXIS 215 (May 26, 2015) (Lurie, Arb.) (upholding the discharge of an officer for taking an unauthorized personal break while on duty because of a
disciplinary history, including eight written counselings, nine written reprimands, and
two suspensions over five years); Labor Arbitration Decision, No. 149904-AAA, 2011
BNA LA Supp. 149904 (Dec. 26, 2011) (Ryan, Arb.) (finding that the grievant’s prior suspension reduced the credibility of his testimony).
93. Lacrosse Cty., Case 225 No. 71108 MA-15092, 2013 WI ERC LEXIS 45
( June 21, 2013) (Emery, Arb.).

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147

has no history of similar lapses and her overall record does not suggest
to me that she is beyond redemption as a law enforcement officer.”94
In another 2013 case, an officer was fired for repeated on-duty sexual harassment of citizens.95 The arbitrator reinstated the officer in
light of his twelve years without prior discipline, saying: “[a] second
chance is not given to many but in this instance it is warranted. The
City failed to sufficiently take into account the mitigating factors of
his commendable and lengthy record of service . . . .”96
Conversely, officers with poor disciplinary histories are less likely
to be reinstated under similar circumstances. In a 2013 case involving
the use of excessive force, a police officer was discharged for allegedly
slamming an innocent citizen’s face against a wall.97 The arbitrator
upheld the officer’s discharge, accepting the department’s argument
that his previous one-day suspension for being rude and discourteous
to a citizen was indicative of his incompetence.98
Another 2013 case involved an officer fired for improper sexual
contact with former inmates.99 The arbitrator upheld the discharge,
relying in part on the officer’s previous suspension for poor performance and patronizing a prostitute.100
These cases demonstrate how officers discharged for similar reasons may experience different arbitral outcomes because of their disciplinary history. Arbitrators are more likely to reinstate officers with
clean records prior to the action that prompted their termination.101
2. Excessiveness of Discharge as a Punishment
In many cases, arbitrators reinstate police officers because they
conclude discharge is too severe a punishment for the alleged offense.102
In thirteen of the forty-three decisions (30.2%) overturning discharge,
the arbitrator believed discharge too severe under the circumstances.
The determination that discharge was excessive is obvious in
some cases. In a 2014 case, for example, two officers were discharged
94. Id. (alteration in original)
95. Labor Arbitration Decision, No. 149974-AAA, 2013 BNA LA Supp. 149974
(Nov. 7, 2013) (Spring, Arb.).
96. Id. Arbitrators have overturned police discharges based on similar allegations
because of exemplary work records. See Labor Arbitration Decision, No. 148141-AAA,
2013 BNA LA Supp. 148141 (Sept. 9, 2013) (Cochran, Arb.) (“I hope that this decision
serves as a wakeup call to [the officer]. It was evident that he has provided valuable service . . . for many years. He nearly fatally tarnished all those years of service . . . . He has
just barely retained . . . his employment as an officer . . . . He should not squander this
last chance.”) (alteration in original).
97. City of Galveston, 132 BNA LA 1101 (2013) ( Jennings, Arb.).
98. Id.
99. United Gov’t of Wyandotte Cty., 131 BNA LA 1209 (2013) (Bonney, Arb.).
100. Id.
101. See Labor Arbitration Decision, No. 149974-AAA, 2013 BNA LA Supp. 149974
(Nov. 7, 2013) (Spring, Arb.).
102. City of Memphis, 133 BNA LA 612 (2014) (Skulina, Arb.).

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for “inciting officers to strike” in violation of an anti-strike clause in
the collective bargaining agreement.103 However, on further investigation the arbitrator discovered that the officers’ misconduct had not
gone beyond a few discussions in the department’s parking lot.104
The arbitrator decided that, although some discipline was warranted,
discharge was too severe.105
Sometimes the determination of excessiveness seems to rely only
on the arbitrator’s subjective judgment. In one 2013 case, an officer
was discharged for excessive force in subduing an intoxicated suspect
by throwing the suspect face first onto the ground.106 The arbitrator
overturned the discharge, despite finding no procedural faults and
concluding that the officer “patently exceeded the force reasonably
necessary to subdue [the suspect].”107 The only ground on which the
arbitrator relied in reinstating the officer was that he should “be afforded a last chance to demonstrate that he is capable of sustaining
a career in law enforcement.”108
These cases illustrate how police discharges can be overturned
based on an arbitrator’s conclusion that such a penalty is excessive
for the alleged offense. It is possible that arbitrators think discharge
is a particularly severe consequence for police officers, since officers
with a termination or suspicious resignation in their work history
may never find another job in law enforcement.109 Indeed, in the context of police discipline, arbitrators consider discharge to be the “death
penalty.”110 However, a determination that discharge was an excessive
punishment is almost always made in light of other mitigating factors.111 Of the forty-three overturned discharges analyzed for this

103. Id.
104. Id.
105. Id. (“[T]here was no effort to recruit officers to participate in a strike. Two officers would not shut down the police operation.”).
106. Labor Arbitration Decision, No. 148131-AAA, 2013 BNA LA Supp. 148131
(Aug. 2, 2013) (Wolf, Arb.).
107. Id. (alteration in original).
108. Id. (emphasis omitted). The arbitrator cited no basis in the collective bargaining agreement to support the decision.
109. See, e.g., Forced to Resign or Get Fired, INDEED.COM (Sept. 25, 2015), http://
www.indeed.com/forum/job/police-officer/Forced-Resign-get-fired/t514398 (police officer,
who resigned while under investigation, struggling to find work in law enforcement).
Contra Paula Parmeley Carter, Fired Cops Have Little Trouble Finding New Jobs, COPBLOCK.ORG ( July 22, 2010), http://www.copblock.org/583/fired-cops-have-little-troublefinding-new-jobs/ (anecdotes from other cities have “not deterred other municipalities
from hiring disgraced cops”).
110. Lucas Sullivan, 7 of 13 Fired Officers, Firefighters Got Job Back in Arbitration, COLUMBUS DISPATCH (Dec. 9, 2012), http://www.dispatch.com/content/stories/local/
2012/12/09/7-of-13-fired-officers-firefighters-got-job-back-in-arbitration.html.
111. See, e.g., Labor Arbitration Decision, No. 148297-AAA, 2013 BNA LA Supp.
148297 (Apr. 22, 2013) (Humphries, Arb.) (overturning discharge of an officer fired for
congregating at a night club for over an hour while on duty because the conduct did

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149

Note, only two (4.7%) cited the excessiveness of discharge as a penalty
for the alleged misconduct as the only factor supporting reinstatement.
3. Disparate Treatment
One important mitigating factor consistently argued by police
union advocates is that the discharged officer was treated differently
than other officers who committed similar misconduct.112 Arbitrators
consider whether other officers received lesser discipline under similar
circumstances.
In one 2015 case, a police officer was fired after being charged with
DUI.113 The union argued that his termination was unfair because
other officers who had been charged with DUI were not terminated.114
The arbitrator overturned the discharge, saying “other officers within
[the] County had been charged with DUI over the years and . . . typically officers were not discharged for a first offense DUI.”115
Although disparate treatment is frequently argued and considered by arbitrators, it rarely succeeds in getting a discharge overturned. Discharges are likely to result from serious misconduct that
has not previously occurred or that was previously disciplined by discharge.116 It was cited as a factor in only five of the forty-three decisions (11.6%) analyzed for this Note that overturned discharge. It is
possible that disparate impact is more significant in disciplinary settings that occur more frequently, but this question is beyond the
scope of this Note.117
4. Acceptance of Responsibility
One factor that may be particularly salient in police discharge
cases is the willingness of the officer to admit wrongdoing and accept
not reach “the level that mandate[s] a ‘zero tolerance’. . . reaction” in light of the officer’s
employment record and other mitigating factors).
112. See, e.g., City of Youngstown, 2011 BNA LA Supp. 119807 (Mar. 10, 2011)
(Paolucci, Arb.) (citing disparate treatment in overturning officer discharge); Labor Arbitration Decision, No. 149300-AAA, 2011 BNA LA Supp. 149300 (Feb. 25, 2011)
(Humphries, Arb.) (same).
113. 2015 AAA LEXIS 155 (Mar. 27, 2015) (Lowe, Arb.).
114. Id. at *17.
115. Id. at *32 (alteration in original).
116. See, e.g., Labor Arbitration Decision, No. 148019-AAA, Grievance No. 152012, 2013 BNA LA Supp. 148019 ( Jan. 3, 2013) (Alutto, Arb.) (discussing the potential
impact of other similar cases for a disparate impact argument):
If such assertions were substantiated equity concerns might argue against
discharge in this case. However, in the few instances referred to by the Union
during the arbitration hearing it failed to provide sufficient details (such as
the setting of events, prior disciplinary actions for the individual, contributing factors, whether repeat actions were involved, etc.) to determine levels
of comparability.
Id.
117. For an analysis of the impact of “inconsistent or discriminatory meting out of
discipline” arbitrators’ decision-making, see COOPER ET AL., supra note 23, at 268–79.

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personal responsibility. For example, an officer was discharged in a
2013 case for sexually harassing another officer.118 The arbitrator concluded that the discharged officer’s conduct “was pervasive enough to
create a hostile work environment and did constitute harassment.”119
The arbitrator nonetheless overturned the discharge in light of the officer’s “willingness to accept blame for his actions.”120 Of particular importance to the arbitrator was the officer’s “general truthfulness about
his culpability.”121
Conversely, in a 2011 case, an officer was discharged for excessive
force after dragging a suspect through the snow and striking him with
his fists over a dozen times.122 In his testimony, the officer refused to
admit to acting inappropriately.123 The arbitrator referred to the officer’s evasiveness in upholding the discharge, stating, “It may be significant that the Grievant’s denial in his testimony was less than foursquare
since he made exceptions for what he characterized as defensive
strikes.”124
However, some arbitrators interpret acceptance of responsibility
as an admission of guilt supporting the discharge. In a 2013 case, a police sergeant was discharged for failing adequately to supervise a
group of officers who had physically beaten and abused a suspect in
custody.125 The discharged sergeant had previously received exemplary performance reviews and was considered “a leader and a multipurpose individual.”126 The arbitrator upheld the sergeant’s discharge
despite these mitigating factors, stating that his “discipline was appropriate for his conduct during the incident and his acceptance of responsibility for his actions.”127
These cases illustrate the conundrum police officers face in deciding whether to accept responsibility for their actions. While admitting
to wrongdoing and accepting responsibility can support a police officer’s case for reinstatement, it can also be used by arbitrators to uphold the department’s discharge. The decisions nevertheless suggest
that it normally is in an officer’s best interest to admit conduct and accept responsibility when under disciplinary investigation.

118. Labor Arbitration Decision, No. 148141-AAA, 2013 BNA LA Supp. 148141
(Sept. 9, 2013) (Cochran, Arb.).
119. Id.
120. Id.
121. Id.
122. City of Youngstown, 2011 BNA LA Supp. 119789 (May 10, 2011) (Fullmer,
Arb.).
123. Id.
124. Id.
125. City of Bartlesville, 131 BNA LA 1502 (2013) (Williams, Arb.).
126. Id.
127. Id.

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151

5. Honesty of the Officer
Generally, discharged police officers are more likely to be reinstated if they can present a credible narrative to the arbitrator.128 Upholding public trust in the criminal justice system is of paramount importance to arbitrators in the context of police discipline.129 Officers
who appear evasive or dishonest undermine this trust.130
Accordingly, an officer’s candor during a disciplinary investigation
can be important to arbitrators deciding whether to uphold a discharge. This is exemplified by a 2013 case in which an officer was discharged for improperly fraternizing with inmates.131 Throughout the
investigation, the officer untruthfully mischaracterized the nature
and extent of his relationships with inmates before eventually admitting to misconduct.132 The arbitrator upheld the discharge, citing the
officer’s failure to cooperate in the investigation:
If the Grievant had been honest when originally queried, immediately admitted his actions, and cited . . . a basis for his actions . . .
his forthrightness could be construed as a mitigating factor. However, the Grievant did not immediately disclose his [misconduct], further supporting the . . . conclusion that the Grievant was aware that
he had violated the [collective bargaining agreement] and that he
lied about his circumstances before eventually admitting the truth.
Given . . . that the Grievant was unacceptably less than forthright
in disclosing the relationship when confronted by a direct inquiry
from a superior officer investigating a complaint involving the Grievant and a former inmate, there is no valid basis to overturn the Employer’s conclusion that the Grievant failed to fulfill his duty of honest dealing with the employer.133

Because the appearance of trustworthiness in police officers is so
important to their public responsibilities, including their testimony in
criminal trials, arbitrators also consider whether the offense that led
to an officer’s discharge involved dishonesty. Examples include of128. See, e.g., Labor Arbitration Decision, No. 148719-AAA, 2012 BNA LA Supp.
148719 (Mar. 13, 2012) (De Treux, Arb.) (quoting an arbitrator in a previous disciplinary
proceeding involving the grievant saying that “[g]rievant has lost his credibility and no
longer can continue as an Officer in the police department”); City of Marengo, 131 BNA
LA 1729 (2013) (Kravit, Arb.) (reinstating officer that arbitrator found credible).
129. See, e.g., Labor Arbitration Decision, No. 149956-AAA, 2013 BNA LA Supp.
149956 (Nov. 12, 2013) (Langbein, Arb.) (“Sightings like these discredit the Department.
They erode public confidence in the ethical standards expected of police officials and the
measure of service that will be provided . . . . The Arbitrator agrees with the County that
not even Grievant’s long and good history with the Department can mitigate the seriousness of her acts.”).
130. See, e.g., id.
131. Labor Arbitration Decision, No. 148453-AAA, 2013 BNA LA Supp. 148453
( July 29, 2013) (Brent, Arb.).
132. Id.
133. Id. (alteration in original); see also Labor Arbitration Decision, No. 149904AAA, 2011 BNA LA Supp. 149904 (Dec. 26, 2011) (Ryan, Arb.) (“The Department cannot
be expected to tolerate an officer with repeated episodes of untruthfulness.”).

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Table 4: Officer Dishonesty in Police Discharge Arbitration
Number of
Cases

Percentage of
Cases

Number
Guilty

Percent
Guilty

Discharge Upheld

23

60.5%

20

76.9%

Discharge Overturned

15

39.5%

6

23.1%

Alleged Dishonesty

38

–

26

–

Category

fenses in which an officer misreported working hours and on-duty activities,134 lied during an official investigation,135 and feigned an injury for workers’ compensation.136
As seen in Table 4, thirty-eight of the ninety-two cases studied for
this Note involved officers discharged for alleged dishonesty. Of those
thirty-eight, the arbitrator upheld the discharge in twenty-three (60.5%).
In twenty-six cases, the arbitrator concluded that the officer was guilty of
dishonesty. The arbitrator upheld the discharge in twenty of the twentysix decisions (76.9%).
These results suggest that the arbitrator’s perception of the officer’s credibility is one of the strongest factors determining officer reinstatement. At a glance, the honesty factor in police misconduct arbitration appears to create a system in which an officer fired for falsifying
log reports to go shopping while on duty137 may be less likely to be reinstated than an officer whose alleged use of excessive force results in
a suspect’s death.138 With this in mind, it is easy to imagine how an
observer without access to the details of arbitrators’ decision-making
can conclude that police discipline is deficient.139 This does not
mean, however, that severity of police misconduct has no impact on arbitrators’ decision-making.

134. Labor Arbitration Decision 149956-AAA, 2013 BNA LA Supp. 149956
(Nov. 12, 2013) (Langbein, Arb.) (upholding officer discharge for shopping during patrol
hours).
135. Broward Sheriff ’s Office, 133 BNA LA 87 (2014) (Zaiger, Arb.) (upholding officer discharge for swearing under oath that he was the victim of an armed robbery and
then recanting his claim during the same interview).
136. Polk Cty, 135 BNA LA 406 (2015) (Landau, Arb.) (upholding officer discharge
for exaggerating the severity of an on-duty injury).
137. Labor Arbitration Decision, No. 149956-AAA, 2013 BNA LA Supp. 149956
(Nov. 12, 2013) (Langbein, Arb.).
138. La Crosse Cty., Case 225 No. 71108 MA-15092, 2013 WI ERC LEXIS 45
( June 21, 2013) (Emery, Arb.) (reinstating officer due to good work record). See also
City of Oakland Police Dep’t, 128 BNA LA 1217 (2011) (Gaba, Arb.) (reinstating officer
where department failed to prove a violation of its use of force policy).
139. See supra notes 1–13 and accompanying text.

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153

C.

Factual Context of the Discharge
Arbitrators regularly consider the context of the alleged offense.
This includes whether the offense occurred while the officer was onduty or off-duty and whether the alleged misconduct involved a civilian’s mistreatment.
1. Off-Duty Misconduct
The majority of cases analyzed involved on-duty misconduct. The
alleged offense occurred on-duty in sixty-five of the ninety-two cases
(70.7%). Of those sixty-five, the discharge was upheld in thirty-two decisions (49.2%).
The data suggest that officers discharged for off-duty misconduct
are less likely to be reinstated. Of the remaining twenty-seven cases
in which the alleged offense occurred while the officer was off-duty,
the discharge was upheld in seventeen decisions (63%). The data are
shown below in Table 5.
Table 5: Off-Duty Misconduct in Police Discharge Arbitration

Number of
On-Duty Cases

Percentage of
On-Duty
Cases

Number of
Off-Duty
Cases

Percentage of
Off-Duty
Cases

Discharge Upheld

32

49.2%

17

63%

Discharge Overturned

33

50.8%

10

37%

Total Cases

65

–

27

–

Category

Intuitively, this makes sense because police departments are unlikely to be concerned with off-duty conduct unless it is severe misconduct. Arbitrators upheld discharges for off-duty misconduct for such
things as domestic violence140 and DUIs.141
2. Involvement of Civilians
The police misconduct cases that receive the most media attention
involve mistreatment of citizens.142 Indeed, the manner with which
police treat civilians is at the very core of the controversy concerning
the adequacy of police discipline.143 Police officers can be discharged
140. City of Hillsboro, 135 BNA LA 654 (2015) (Lalka, Arb.) (officer discharged for
assaulting his wife).
141. Labor Arbitration Decision, No. 148550-AAA, 2013 BNA LA Supp. 148550
(Oct. 22, 2013) (McNeill, Arb.) (officer discharged for off-duty DUI and lack of cooperation with ensuing investigation).
142. See supra notes 1–13 and accompanying text.
143. See supra notes 4–13 and accompanying text. See generally Douglas B.
McKechnie, Don’t Daze, Phase, Or Lase Me, Bro! Fourth Amendment Excessive-Force
Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a
Constitutional or Practical Challenge, 60 U. KAN. L. REV. 139 (2011).

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for their abuse of suspects, inmates, or even innocent bystanders. Examples include the use of excessive force144 or sexual misconduct
against citizens.145
Of the ninety-two cases analyzed, thirty-six (39.1%) involved citizen mistreatment. This includes only cases in which citizens were
abused by on-duty officers. It does not include, for example, cases involving off-duty domestic violence.
Of those thirty-six cases, the discharge was upheld in seventeen
decisions (47.2%). The arbitrator concluded that the officer was
guilty146 of the alleged citizen mistreatment in twenty-three of those
thirty-six cases. When a conclusion of guilt was made, the discharge
was upheld in sixteen decisions (69.6%). The data are shown below
in Table 6.
Table 6: Mistreatment of Citizens in Police Discharge Arbitration Cases

Category

Number of
Cases

Percent of
Cases

Number
Guilty

Percent
Guilty

Discharge Upheld

17

47.2%

16

69.6%

Discharge Overturned

19

52.8%

7

30.4%

Civilian Mistreatment

36

–

23

–

These findings suggest that a mere allegation of civilian involvement does not itself significantly influence the likelihood of reinstatement. However, officers found guilty of mistreatment are unlikely to be
reinstated.
This observation is not necessarily inconsistent with media reports and critical commentary on police discipline. Cases involving citizen abuse typically constitute severe misconduct and understandably
get the most media attention. However, if the only fact reported by the
media is that many officers accused of severe misconduct are reinstated through arbitration, this may contribute to the impression
that police officers can get away with anything without being fired.
This impression may be misleading, however, if the insufficiency of evidence demonstrating an officer’s guilt, as well as factors like the officer’s integrity and work record, are largely ignored by the media.
Even though severe alleged misconduct may not decrease the odds
of an officer’s reinstatement, it nonetheless has a demonstrable impact
on receipt of back pay.
144. City of Tampa, 133 BNA LA 1128 (2013) (Smith, Arb.) (officer discharged for
striking a suspect while making an arrest).
145. Labor Arbitration Decision, No. 149974-AAA, 2013 BNA LA Supp. 149974
(Nov. 7, 2013) (Spring, Arb.) (officer discharged for sexually harassing female citizens).
146. See supra Part III(A)(1)(c).

 Factors in Police Misconduct Arbitration Outcomes

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D. Split Outcomes: Challenging the Myth of the Untouchable
Officer
The media typically report police discharge arbitration outcomes
as if they are binary proceedings with a clear winner and loser. The
only relevant fact usually reported is that a police officer was reinstated.147 Reports often fail to explain that arbitration usually does
not exonerate a discharged police officer of wrongdoing. Most reinstated police officers have their punishment reduced.
In the forty-three decisions that reinstated an officer, the arbitrator
awarded full back pay in twenty-one decisions (48.8%). In the remaining
twenty-two decisions (51.2%), the officer was reinstated with only partial or no back pay.148
Because arbitration decisions are issued several months, or even
years, after a discharge, losing back pay can mean significant wage
loss. The average time between discharge and decision in the cases analyzed was 12.48 months.149 This means that a discharged police officer could expect to lose an average of about one year’s salary if not
awarded back pay.
Arbitrators do not always give precise reasons for not awarding
back pay. Of the twenty-two decisions without an award of back pay,
the arbitrator offered a justification for not awarding back pay in
nine (40.9%). By far, the most often-cited reason for not awarding
back pay was the seriousness of the offense, cited in eight of nine decisions (88.9%) that provided a reason.150
While nine cases are only a few, they suggest that even if a police
officer is reinstated, the seriousness of misconduct affects the arbitral
remedy. In cases characterized by arbitrators as severe misconduct,
the odds of an officer being reinstated with full back pay and an expunged disciplinary record are diminished. The record of the disciplinary sanction is also likely to prove an important deterrent to future
misconduct in light of the significance in arbitration of poor disciplinary records.151

147. See supra notes 11–12 and accompanying text.
148. A recent study of discharge arbitration outcomes in Minnesota that did not
control for occupation found that when arbitrators reinstated the employee, they were
awarded full back pay and benefits 40.4% of the time. See COOPER ET AL., supra note
23, at 52, 196 tbl.7.3. This suggests that outcomes for police officers do not meaningfully
differ from outcomes in other contexts.
149. There were some outliers. Two cases took thirty months to decide and one
only took five.
150. In one case, an arbitrator cited the officer’s dishonesty and evasiveness during
the disciplinary investigation as a reason for not awarding back pay. Geauga Park Dist.,
FMCS 11-03249-6, 2012 BNA LA Supp. 147416 ( Jan. 5, 2012) (Goldberg, Arb.).
151. See supra Part III(B)(1).

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Conclusion
Discharged police officers are regularly reinstated by arbitrators
despite allegations of excessive force, sexual harassment, and substance abuse. This contributes to a popular impression that there is
no misconduct severe enough to justify firing police officers. However,
police discharge cases are not adjudicated entirely on the basis of the
alleged misconduct’s severity.
At times, the department is to blame for an officer’s reinstatement. Police departments occasionally fail to observe important procedural steps before firing officers. In other cases, they do not provide
sufficient evidence to prove officers were even guilty of the offense
for which they were fired.
But perhaps more importantly, arbitrators care about who the officer is. They care about whether an officer is sufficiently trustworthy to
deserve a second chance. In that sense, perhaps what is more important
in the context of police discipline is not whether an officer is a good cop;
rather, what matters is whether that officer has good character.