Labor & Employment Law Daily Wrap Up, NAA CORNER—Current issues in public safety, (Jul 28, 2026)

By Stanley Michelstetter, NAA Member

There are many who think that it is time to recognize the private system of grievance arbitration of law enforcement discipline has not worked and that arbitration of serious discipline must be open to public scrutiny.

Since George Floyd’s death, many judges and members of the public no longer trust police departments, police unions, or arbitrators to fairly adjudicate the appropriate discipline for police officers engaged in serious misconduct. There are many who think that it is time to recognize the private system of grievance arbitration of law enforcement discipline has not worked and that arbitration of serious discipline must be open to public scrutiny. The outcome of serious discipline should not leave the weeding out of “bad apples” to arbitrators. That is the nationwide message.

At the National Academy of Arbitrator’s 2026 Annual Meeting in Chicago, “Current Issues in Public Safety” were discussed by a panel of experts. This panel was ably monitored by one of the NAA’s leading figures, Amadeo Greco, who moderated a wild and lively discussion with experienced counsel for the public employer, Mark Bennett, and for the union representing police officers in Chicago, the Fraternal Order of Police, Stephen Yokich. NAA’s Doyle O’Connor threw pointed spears and generated discussion based upon his years of dealing with police officers.

The background for this discussion is a case which Bennett and Yokich have litigated, and continue to litigate, for many years. The case involves the decision of one of NAA’s most esteemed arbitrators, Ed Benn, who issued an interest arbitration award requiring, among many provisions, binding arbitration (outside of public purview) of the Chicago Police Department’s discharges and lengthy suspensions of police officers. On review, the Illinois Superior Court sustained all aspects of the award but excepted the arbitration of long-term police discipline as contrary to public policy. The case is pending appeal to the Illinois Supreme Court.

General history of skepticism. Mr. Bennett started the session by addressing the general history of skepticism of public sector collective bargaining, particularly as it affects policing. Historically, the concept of public sector collective bargaining was considered an anathema to preserve the public interest. Early advocates for private sector collective bargaining viewed the public body as having the sole responsibility to balance interest of the public, employee, and employer. Many states that enacted public sector collective bargaining laws believed that the public interest in transparency and accountability required that collective bargaining and related hearings be conducted in public.

Those concerns are most evident with respect to police work because of an officer’s overwhelming and dangerous powers: they are the only public employees who are required to record their duties on camera, and they carry a gun with legal authority to shoot human beings.

Growing distrust. Bennett added that the issues with police collective bargaining are also compounded by growing distrust of police particularly in low-income, high-crime areas. A 2017 study of the Urban Institute of Justice and Policy in six major cities noted that only 24.4 percent of residents believed that police departments hold officers accountable for wrong or inappropriate conduct.

One of the reasons often cited for this distrust is the perception that police bargaining and police discipline are often conducted behind closed doors that exclude those community members from access to those provisions and factors that may undermine accountability. Many of the criticisms addressed to Arbitrator Benn’s underlying award was that it fueled public mistrust when it established a behind-closed-doors process for serious police discipline.

“Beyond Transparency.” Bennett cited a study by Cornell Professor Harry Katz entitled “Beyond Transparency,” which identified seven problems with collectively bargained police discipline procedures that unreasonably interfered with mechanisms designed to hold police accountable. They were:

1. Delays in interviews of officers suspected of misconduct;

2. Providing officers with access to evidence before being interviewed;

3. Limits on consideration of disciplinary history;

4. Limited the length of an investigation or establishing a statute of limitations;

5. Refusal to consider anonymous complaints;

6. Lack of civilian oversight;

7. Permitting or requiring arbitration of discipline.

While we may debate the issues raised today as to whether arbitration hearings involving serious police discipline cases should be open to the public, Bennett argued the issue goes well beyond that debate. Grievance arbitrators are bound to apply the terms of a collective bargaining agreement. It is up to the courts to apply public policy. However, police arbitration cases involving serious discipline have a real impact on the public’s perception. The public’s right to transparency and accountability must be considered as such reflects the interest and welfare of the public and remain as serious factors under the Illinois statute.

Mr. Yokich responded by stressing that public sector workers need unions as much as private sector workers do. He referenced the 1968 Memphis garbage workers’ strike in which Martin Luther King, Jr., supported the workers. Black workers were horrendously killed sitting out rain in the lift in the back of the truck while white workers were allowed to shelter. It was only two years later in Abood vs. Detroit Board of Education, 431 US 209 (1971) (“Abood”), the Supreme Court noted interests of public workers were essentially the same as those in the private sector.

Long-standing concerns. Mr. Yokich noted that the concerns about transparency and accountability are long-standing. A historian of Chicago in the 1920’s to the 1950’s has documented that the public had similar issues with the police department before the advent of collective bargaining. We have now had sixty-five years when police disciplinary proceedings were open to the public. It would be hard to say that having open hearings resulted in public faith in the police. He expressed doubt that having disciplinary arbitrations open to the public would do anything to improve public trust in the police disciplinary process. Serious discipline was conducted solely in public hearings before the Chicago Police Board for sixty plus years. That was the status quo prior to the advent of interest arbitration. Mr. Yokich agreed with Mr. Bennett that police-community relations are difficult, but it has been that way forever.

Public policy. In any event, Mr. Yokich went on, while we may talk about police-community relations as a reason for the City holding the status quo, it ignored the fact that the legislature considered the other factors such as the number of police officers, the low pay, lack of an adequate pension, long hours, and having to work weekends/holidays as a reason why the legislature sought to give police officers the same collective bargaining rights as the private sector employees, including private grievance arbitration. That was a very deliberate legislative choice. The courts have gone off course by holding their finger to the wind to determine public policy rather than follow the public policy specifically set by the Illinois legislature.

Mr. Yokich explained: This case started with the 2012-2017 collective bargaining agreement between the Fraternal Order of Police Lodge 7 (FOP) and the City of Chicago. That contract was bargained over a six-year period. After protracted interest arbitration proceedings, the parties came to a contract. Under Illinois law, the right to have issues of contract interpretation decided by an arbitrator must be included in the contract unless the parties agree otherwise. That means that the right to have grievance arbitration is a mandatory subject of bargaining. The Union sought to have the option for grievance arbitration for discharge or suspensions over a year in lieu of conducting these hearings only before the Police Board. Prior to that time, only lesser discipline was subject to arbitration.

Open or closed? Mr. Yokich reported that Arbitrator Benn awarded the arbitration provision because state law required such be included upon the Union’s request. The award did not state whether the arbitration proceedings would be open to the public. The FOP proposed that it would be private while the city proposed that it would be open to the public. The arbitrator adopted the FOP’s position. The Superior and Appellate courts rejected the award requiring that the arbitration be closed to the public. The Appellate Court decided there was a public policy that proceedings be open based on the consent decree between the City and U.S. Department of Justice, the Illinois Freedom of Information Act, and the parties’ sixty-year practice of having open hearing before the Police Board.

However, the courts failed to consider, according to Mr. Yokich, that the Illinois Open Meeting Act and the state Freedom of Information Act exempt from public scrutiny activities carried out pursuant to collective bargaining obligations. There was a dissent by one of the three justices of the Appellate Court and the Illinois Supreme Court grants certiorari if there is a dissent. The Union’s petition before the Illinois Supreme Court is currently pending.

Mr. Yokich expounded: Most grievance arbitrators agree that their job is to interpret or apply the contract and it is up to the courts to determine whether the contract complies with law. However, in the interest arbitration context, the arbitrator has broad discretion. That discretion includes the requirement that the arbitrator consider the “interests and welfare of the public.” One of the reasons the state adopted an interest arbitration system with labor arbitrators rather than judges being involved is that we all recognized that labor arbitrators are specialists who understand the workplace far better than judges.

“Where is the public in all this?” Mr. Yokich asserted that “If you ask: ‘Where is the public in all this?’- I would say that the employer is the representative of the public in all of this. If the public does not like their representative’s conduct, they can change their representatives. It is without merit to say that public employees have outsized power in selecting the representatives because they are but a small percentage of the population here. That is still true when you consider all of organized labor here. They are still a small percentage of the population.”

Mr. Bennett replied by asserting Mr. Yokich’s concerns are largely based upon the assumption that the public just won’t understand the process. Arbitrator Benn even noted in his award that the public’s reaction showed that the public misunderstood the award. That is where the public frustration and mistrust comes in. Mr. Bennett thinks that we should give the public more credit. Similarly, the argument that the public should change its representatives if it is dissatisfied with their handling of police discipline is misplaced. It is no secret that public sector unions play an outsized role in Chicago municipal politics.

Reasoned fairness. Major disciplinary hearings have been held in public in Chicago for sixty years. Mr. Yokich argued that this had not helped dissipate the public distrust issue. Mr. Bennett asked how making those proceedings private would help with the distrust issue. There is a difference of opinion here as to what the status quo is. There is no record of hundreds of unruly people showing up at those hearings or the public otherwise affecting the former process. Mr. Yokich opined that the public ignored the disciplinary hearings under the Police Board; they will continue to do so under any system except when riled up in an attempt to disrupt the legal process by one particular case. Police officers deserve fair, even-handed proceedings notwithstanding the facts of any case. Mr. Yokich suggested that the courts of Illinois should honor and recognize this shield from a boisterous crowd and a hyped-up press. Reasoned fairness must prevail over a provoked crowd claiming to act under the mantel of the public interest.

Arbitrator O’Connor interjected that he does a lot of police arbitration. He held a death in custody arbitration at the height of the George Floyd demonstration. He is as thick skinned as anybody and he still would have recommended against requiring that hearing be held in public, but he is not from Illinois. A lot of what was being said today is news to him. He started out as a union organizer and represented police in the gamut of disciplinary cases. He has also sued police in wrongful death cases. The Illinois statute presumes that police are entitled to arbitrate grievances. The court didn’t like that. Frankly, it is because cops kill people. They might as well say that. It is highly emotional. That causes people to make bad and indefensible decisions. The Illinois Court of Appeals distinguished the NAA’s Code of Professional Responsibility’s requirement that proceedings being private, as being in the context of the private sector. The Court concluded that does not apply to arbitrations in the public sector. That was a substantive part of the decision. Arbitrator O’Connor argued that this position was nonsense. The Court relies upon policy arguments about trust and transparency, but those concerns might just as well be met by publishing arbitration awards. Many states do. It does not mean that the hearings should be public.

Fundamental concern. Moderator Greco opened the questioning period by positing the fundamental concern of the public: Why must anyone die at the hands of police? He noted concerns that police seem to be corrupted by power. He also noted that in many respects being a police officer is a terrible job. They don’t know if they are coming home at night. People don’t trust you. Groups are afraid of you. They have reason to be afraid of you.

With that provocation there was a lively discussion. One commentator noted that even though the public has its chief concern, the truth of the matter is that the number of police killings is very, very small, but those incidents get all the press. Further, while the public’s concern is high because police have guns, that fact is of little consequence when just about everyone seems to have a gun. Police are targeted all over the country. The pendulum has swung to where police officers are presumed guilty. The main reason police discipline is overturned is usually because the employer was not rendering discipline consistently. It is important to make judgments on facts and not politics. Citizen involvement in hearings is very problematic because the press and politics can do injustice to public servants whom we frankly cannot live without. The audience member conceded that arbitrators do rely on the facts presented and not the extraneous matters.

Arbitrator and NAA member Stanley Michelstetter questioned whether the transparency issue is really satisfied by public attendance at arbitration hearings. The fear underlying the push for attendance at arbitrations is a fear that arbitrators being selected by the parties may be influenced by pandering to the parties. Washington State adopted a system where police arbitrations are conducted by arbitrators screened by the state as specialists in policing issues. Mr. Bennett noted that the City’s proposal was to ensure that the arbitrators receive the same training as to police rules of conduct, etc., that members of the Police Board receive.

The vigorous debate continued with audience members discussing their experiences. Part of the discussion focused on a belief that many police discipline cases are resolved in favor of police because officers have been disciplined very differently in similar situations, a distinction that draws little sympathy or understanding from the public. The session never really ended because the issue of “what is the public’s understanding” and the meaning of “the public interest” spilled out into the corridors of the hotel and on to Michigan Avenue right into the face of the Chicago police officers who were on the sidewalk outside the hotel.

About the author. Stanley Michelstetter has issued over 1,000 awards including both grievance and interest arbitration in a wide variety of industries, the public sector, federal sector and transportation and mediated over 500 contract disputes. He is an experienced mediator and administrative law judge.

Companies: National Academy of Arbitrators

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