The relative benefits of advisory arbitration

In late June 2020, California's 5th District Court of Appeal overturned an arbitrator's advisory decision in favor of two deputy sheriffs and their union in a contractual dispute arising under a memorandum of understanding (MOU) between the county and the union. The dispute centered on the county's decision to remove the deputies from "specialty assignments" as detectives. The labor law principles the case stands for are not groundbreaking. However, the fact that the arbitration was advisory—rather than binding—is noteworthy because of the stark differences between those two forms of arbitration. Indeed, the national debate raging over police accountability is perhaps the most striking contemporary example of how the impact of those differences can play out in labor, personnel, and employment law.

The advisory arbitration

The deputies believed they shouldn't have been removed from their "specialty" assignments as detectives and returned to the street against their will. In accordance with the MOU between the county and the union, their grievance went to advisory (not binding) arbitration. The arbitrator found that the county violated the MOU by changing a past practice of transferring deputies from their specialty assignments only in response to disciplinary problems, documented performance issues, layoffs, or pending disability retirement. Oddly, the arbitrator's decision didn't review crucial language in the MOU giving the county a management right of assignment and reassignment.